Michael R. Dambrot

In a jury trial on four counts of first degree murder, the accused brought an evidentiary motion seeking edits to jail telephone intercepts before they were played to the jury.

The court applied a relevance and prejudice-versus-probative-value analysis to disputed passages, holding that most references to custody were admissible because they provided necessary context for the accused's repeated efforts to have another person alter vehicle records and avoid implication in the homicide investigation.

A violent rap lyric was excluded because its prejudicial effect outweighed its minimal probative value, and two words referring to the duration of incarceration were also removed.

The balance of the application was dismissed, with limiting instructions to be given concerning custody and the right to silence.

In a jury trial on four counts of first degree murder arising from three separate shooting incidents, the court determined pre-trial applications concerning cross-count admissibility, extrinsic misconduct evidence, and severance.

The court held that evidence on each count was admissible across counts as circumstantial evidence of possession of the same 9mm firearm, and thus of identity, but not as similar fact evidence because the shootings lacked the requisite striking similarity or objective improbability of coincidence.

The court also admitted selected extrinsic misconduct evidence relating to possession and use of the 9mm and .45 calibre firearms, consciousness of guilt, and the relationship between the accused and a Vetrovec witness, while excluding other highly prejudicial evidence with limited probative value.

Applying the severance factors, including the strong factual and legal nexus among counts, the court concluded that the interests of justice did not require severance.

The offender was found guilty by a jury of possession of a loaded prohibited firearm, possession of crack cocaine for the purpose of trafficking, and related offences.

The offences arose from a search of a residence where the offender was staying, which uncovered a loaded machine pistol, ammunition, and drugs in a bedroom also occupied by a toddler.

The court weighed the offender's lengthy criminal record and the serious aggravating factors against his recent good conduct in custody and expressions of remorse.

The court imposed a total sentence of 9 years and 3 months imprisonment, less 3 months credit for pre-trial custody.

Accused persons charged with murder brought applications to exclude historical text messages obtained by police through a production order directed to a telecommunications provider.

They argued that s. 487.012 of the Criminal Code did not authorize the production of private communications, or alternatively that the provision violated s. 8 of the Charter.

The court held that stored historical text messages constitute “data” within the meaning of the provision and that obtaining them by production order does not amount to interception of private communications under Part VI.

The statutory prerequisites for a production order satisfied constitutional standards for reasonable search and seizure.

The applications to exclude the evidence were dismissed.

The appellant sought an easement over Crown lands subject to unpatented mining claims held by the respondent to build a road to a proposed mine.

The respondent refused consent, intending to build a railway on the same corridor.

The Mining and Lands Commissioner (MLC) dismissed the appellant's application to dispense with consent.

On appeal, the Divisional Court found the MLC's decision unreasonable, as it misinterpreted the Mining Act by failing to apply the limitations on surface rights to unpatented claims on Crown land and improperly required the appellant to prove a public interest.

The Court substituted its own decision, dispensing with the respondent's consent, finding no evidence that the road would significantly interfere with actual or proposed mining activities on the claims.

The appellant, a real estate lawyer, appealed a decision of the Law Society Appeal Panel which ordered a new hearing on allegations of professional misconduct related to his participation in real estate flip transactions.

The original hearing panel had dismissed the fraud allegations, finding a lack of direct evidence from the lenders or participants.

The Divisional Court dismissed the appeal, agreeing with the Appeal Panel that the hearing panel erred in law by failing to consider circumstantial evidence and by incorrectly requiring proof of actual economic loss rather than a mere risk of prejudice to establish fraud.

Following the dismissal of an application for leave to appeal an order staying third party claims in a class action until completion of the common issues trial, the court addressed the issue of costs between the plaintiff and the defendant applicants.

The plaintiff sought partial indemnity costs exceeding $34,000 plus disbursements, while the defendants argued for a significantly reduced amount.

The court rejected the defendants’ criticism of the plaintiff’s preparation time and counsel allocation, emphasizing the importance of the application to the plaintiff and the plaintiff’s leadership role in responding.

Considering the relevant factors, the court fixed costs at a reduced but substantial amount within the defendants’ reasonable expectations.

The applicant, a First Nations constable, sought judicial review of a Human Rights Tribunal decision dismissing his complaint that his suspension and termination by the OPP Commissioner were discriminatory and acts of reprisal.

The applicant had been terminated after making public comments criticizing the OPP.

The Divisional Court upheld the Tribunal's findings that the exclusion of First Nations constables from the procedural protections of the Police Services Act was not discriminatory, but rather respected First Nations self-government.

The Court also upheld the finding that the termination was not a reprisal under the Human Rights Code, as the applicant's public comments were not an assertion of human rights.

A related application by the First Nation Council alleging a denial of natural justice was also dismissed.

The appellant physician appealed findings by the Discipline Committee of the College of Physicians and Surgeons that he engaged in sexual abuse of a patient and professional misconduct.

The appellant argued the Committee failed to properly consider inconsistencies in the complainant's evidence and video surveillance footage.

The Divisional Court dismissed the appeal, finding the Committee's credibility assessments and conclusions were reasonable and supported by the evidence.

The appellant employer appealed a trial judge's decision awarding the respondent employee $10,108.55 in unpaid short-term disability benefits.

The trial judge calculated the benefits based on the written policy in the employee handbook, rejecting the employer's evidence of an unwritten policy that applied a different calculation method.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the trial judge's findings of fact and mixed fact and law.

The applicant union sought judicial review of an arbitrator's award upholding the termination of three employees for assaulting a replacement worker during a strike.

The arbitrator found the assault was premeditated and unprovoked, and that the employees were dishonest during the proceedings.

The Divisional Court dismissed the application, holding that the arbitrator's findings of fact were reasonable, supported by the evidence, and entitled to the highest level of deference.

The Minister of Community Safety and Correctional Services applied for judicial review of a decision by the Information and Privacy Commissioner (IPC) ordering the disclosure of dates when DNA samples were collected and reported.

The Divisional Court found that the IPC breached the duty of procedural fairness by failing to give notice of the appeal to the victims or representatives of deceased victims, whose privacy rights were engaged.

The court allowed the application and referred the matter back to the IPC for reconsideration on notice to the affected parties, to allow for a complete balancing of interests.

The appellant appealed an order discharging a Certificate of Pending Litigation (CPL) and a limited proprietary injunction, which allowed the respondent to sell or encumber a property to fund legal defence costs for herself and her parents.

The appellant argued the motions judge erred in assessing its fraudulent conveyance and resulting trust claims, and in allowing the property's equity to fund the father's legal fees.

The Divisional Court dismissed the appeal, finding no legal error in the motions judge's assessment of the claims and no palpable or overriding error in his exercise of discretion to ensure the defendants had access to legal representation.

The appellants appealed an order of the Landlord and Tenant Board evicting them as unauthorized occupants.

The Divisional Court found that the Board denied the appellants natural justice by refusing to consider their position that they resided on the premises based on an agreement with the landlord, not as tenants or unauthorized occupants.

The Board erred in law by ordering their eviction without any evidentiary basis under section 100 of the Residential Tenancies Act.

The appeal was allowed and a new hearing was ordered.

The applicant applied for judicial review of an arbitrator's decision ordering the disclosure of contested documents.

The applicant argued it was denied procedural fairness because the arbitrator misunderstood its concession regarding the independence of a third party and failed to hold a hearing on the third party's neutrality.

The Divisional Court dismissed the application, finding no denial of procedural fairness as the distinction between neutrality and independence was mere wordsmithing.

The Court also upheld the arbitrator's jurisdiction to order disclosure, finding her interpretation of the grievance reasonable.

The applicants sought judicial review of an interlocutory ruling made by a coroner at the outset of an inquest into a police shooting.

The ruling limited the scope of cross-examination of two police officers regarding their consultations with counsel prior to making their notes.

The Divisional Court dismissed the application on the basis of prematurity, holding that courts should not intervene in ongoing administrative proceedings, particularly coroner's inquests, absent exceptional circumstances that would result in a fundamental failing of justice.

The appellant private career college appealed a decision of the Licence Appeal Tribunal directing the Superintendent to refuse to renew its registration.

The Tribunal's decision was based on findings related to student refunds and compliance issues.

The Divisional Court found that there was ample evidence to support the Tribunal's conclusion that the appellant failed to operate the college in accordance with the law and with honesty and integrity.

The appeal was dismissed.

The appellants, former counsel for the respondent in family law proceedings, appealed an order and a subsequent costs endorsement.

The Divisional Court found no palpable and overriding error of fact or law in the motions judge's findings regarding the advancement of funds.

The court also determined that leave was not required to appeal the costs endorsement under s. 133(b) of the Courts of Justice Act, and found no error in the motions judge's exercise of discretion.

The appeals were dismissed with costs awarded to the respondent.

The applicants sought judicial review of regulations authorizing a two-year spring bear hunt pilot program in northern Ontario, arguing the regulations were ultra vires and the Minister's decision was unreasonable.

The Divisional Court dismissed the application, finding the Minister complied with the Environmental Bill of Rights process, an environmental assessment was not required due to an existing exemption, and the regulations did not conflict with the Criminal Code's animal cruelty provisions.

The court also held that the Minister's decision to implement the pilot project was protected by privative clauses and not subject to judicial review.

The applicant massage therapist sought judicial review of a caution issued by the College's Inquiries, Complaints and Reports Committee regarding her advertising practices.

The Divisional Court first determined it had jurisdiction to hear the application, as the proceeding was initiated by a Registrar's report rather than a complaint, meaning no appeal lay to the Health Professions Appeal and Review Board.

On the merits, the Court dismissed the application, finding no denial of natural justice and concluding that the strongly worded caution was appropriate remedial guidance rather than an unauthorized disciplinary reprimand.