Michael R. Gibson

The parties, who are neighbours, engaged in a protracted dispute over a minor encroachment of a concrete driveway pad across their property line.

The plaintiffs sued for nuisance and loss of quiet enjoyment, while the defendants counterclaimed for diminution of property value.

The Superior Court of Justice dismissed both claims for damages, finding the encroachment trivial and the plaintiffs' actions unreasonable, while the defendants failed to prove causation for any property value loss.

The court issued a declaration establishing the property line according to a 2020 survey and ordered each party to bear their own costs.

The self-represented plaintiff, a former employee of the defendant supermarket, brought a motion for leave to further amend his statement of claim to add six individual employees as defendants.

The court dismissed the motion, finding that the proposed amendments failed to disclose any reasonable cause of action against the individuals, as the pleadings did not establish any independent tortious conduct outside the scope of their employment.

Furthermore, the court held that the allegations were insufficiently particularized and statute-barred under the Limitations Act, 2002.

The court also exercised its discretion under Rule 5.04(2) to refuse the amendments, noting that adding the individuals would unduly complicate and delay the proceedings.

Application and cross-application concerning a municipal site-specific by-law aimed at clearing a longstanding homeless encampment to facilitate a transit hub project.

The court held that the by-law infringed s. 7 because closing the only lawful sheltering site of last resort in a region with grossly insufficient accessible indoor shelter exposed chronically homeless persons to serious risks to life, liberty, and security of the person in a manner grossly disproportionate to the by-law’s objective.

The court further held that the by-law infringed s. 15 by disproportionately burdening homeless persons who were women, gender-diverse, disabled, and Indigenous, and also recognized homelessness itself as an analogous ground under s. 15.

The infringements were not saved under s. 1, the bad-faith challenge under s. 273 of the Municipal Act failed, and the court declared the by-laws of no force and effect, restrained enforcement, and retained jurisdiction for further directions if a lawful alternative tenting protocol or site is implemented.

The applicant mother brought a motion to change a final parenting order to permit the children's relocation to California, where she had secured employment, and to impute income to the respondent father for child support purposes.

The respondent father brought a cross-motion seeking the children's return to Ontario, joint decision-making, and a reduction in child support based on his unemployment.

The court found a material change in circumstances and determined that the relocation was in the children's best interests, noting the mother's enhanced stability and the father's history of family violence, non-compliance with court orders, and intentional underemployment.

The court dismissed the father's motion, authorized the relocation, imputed an annual income of $90,000 to the father, and fixed child support arrears at $85,441.13.

The offender, a youthful first-time offender, was found guilty of penetrative anal sexual assault against his intimate partner.

The court weighed the profound psychological harm to the victim and the aggravating factor of intimate partner violence against the offender's youth, lack of criminal record, and rehabilitative prospects.

Applying the principles for sentencing youthful first-time offenders, the court imposed a sentence of three years' imprisonment along with ancillary orders.

The accused was charged with second-degree murder, attempted murder, and aggravated assault following a stabbing incident that left his intimate partner dead and her young daughter and his mother seriously injured.

In the first stage of a bifurcated trial, the Crown was required to prove the actus reus and mens rea of the offences.

The court rejected the accused's claims of self-defence and provocation, finding his testimony incredible and unreliable.

Applying count-to-count similar fact evidence, the court found the accused had the specific intent to kill all three victims.

The court concluded the Crown had proven all essential elements beyond a reasonable doubt but refrained from entering convictions pending a determination on whether the accused was not criminally responsible due to mental disorder.

Following a judge-alone criminal trial arising from alleged intimate-partner violence in a bedroom of a multi-tenant house, the court assessed credibility, reasonable doubt, incremental disclosure, and sexual-assault myth-based reasoning.

The complainant's evidence was found generally credible and sufficiently reliable on the core allegations, notwithstanding inconsistencies about peripheral details and a delayed disclosure of anal penile penetration.

The court held that the Crown proved beyond a reasonable doubt the elements of sexual assault, choking while committing an assault, assault, and unlawful confinement.

The Crown did not prove the mens rea for using or threatening to use a dumbbell as a weapon, and the accused was acquitted on that count.

The tenants appealed an eviction order from the Landlord and Tenant Board, arguing that the Board breached procedural fairness by refusing to allow Tenant Duty Counsel to make submissions and by failing to record the entire hearing.

The Divisional Court dismissed the appeal, finding that the tenants had a reasonable opportunity to participate and that Duty Counsel, acting as a support person, had no standing to make submissions after the parties had closed their cases.

The Court also held that the lack of a complete hearing recording did not breach procedural fairness, as the Board's reasons were sufficient for appellate review and no error of law was identified in the Board's refusal to set aside the eviction order.

The seller of a farm property sued after the buyer failed to close a commercial real estate transaction involving land, buildings, and natural gas wells.

The court held that the environmental warranty in the agreement of purchase and sale did not extend to the gas wells and, in any event, was not breached and constituted a warranty rather than a condition, requiring the buyer to close and sue for damages if necessary.

The court further held that the 'as it is, where it is' clause was binding, the buyer was deemed to have admitted inability or unwillingness to close through an unanswered request to admit, and relief against forfeiture was not available because retention of the 14% deposit was not unconscionable.

The seller had reasonably mitigated its loss and recovered carrying and resale-related damages of $287,296.57, subject to credit for the forfeited $250,000 deposit.

The buyer's counterclaim against the realtor and the seller, and the seller's crossclaim against the realtor and brokerage, were both dismissed.

A self-represented plaintiff sought damages for financial losses allegedly caused by uncertainty regarding his corporation's land ownership due to an unresolved Indigenous land claim by Six Nations against Canada and Ontario.

The defendants brought cross-motions to strike the claim.

The court dismissed the action on multiple grounds: the proceeding was a nullity against Ontario due to failure to provide the mandatory 60-day notice required by the Crown Liability and Proceedings Act, 2019; the claim was plainly and obviously statute-barred under the Limitations Act, 2002; and the plaintiff failed to establish a cognizable cause of action in negligence or breach of fiduciary duty against either defendant.

The court also dismissed the plaintiff's motion to amend the pleadings to add corporate plaintiffs.

The applicant sought to vary a forfeiture order made by consent on July 28, 2023, requesting the return of replica firearms, deactivated firearms, and an antique revolver, and seeking permission for a licensed gunsmith to examine seized property.

The applicant claimed material change in circumstances based on alleged mistakes by police in cataloging firearms.

The court dismissed the application, finding that the Superior Court of Justice lacked jurisdiction to hear the matter as it constituted an attempt to re-launch a previously disposed appeal of a consent order.

The court emphasized the principle of finality and found no compelling case of miscarriage of justice warranting reopening.

The Regional Municipality of Waterloo sought a declaration that its Site-Specific By-Law Number 25-021 regulating 100 Victoria Street North in Kitchener complies with the Canadian Charter of Rights and Freedoms.

The by-law prohibits temporary structures and sheltering on the property, with a December 1, 2025 deadline for vacant possession to facilitate construction of the Kitchener Central Transit Hub.

Persons Unknown and to be Ascertained, chronically homeless individuals sheltering at the encampment, sought an interlocutory injunction restraining enforcement of the by-law pending determination of their Charter claims.

The court granted the injunction, finding serious issues to be tried regarding violations of section 7 Charter rights (life, liberty, and security of the person) and potential illegality under the Municipal Act, 2001, irreparable harm to vulnerable homeless persons, and balance of convenience favoring the injunction.

The court considered whether Aviva Insurance Company of Canada was required to defend or indemnify Udo Haan under a homeowner’s policy after Haan, found not criminally responsible for killing his wife and causing an explosion that damaged neighbouring homes, was sued by neighbours.

The court found that Haan’s actions were both intentional and criminal, triggering the policy’s exclusion clause.

As a result, Aviva had no duty to defend or indemnify Haan in the civil actions brought by his neighbours.

The appellant tenant appealed a Landlord and Tenant Board decision dismissing his applications regarding the applicability of the Residential Tenancies Act and a claim for a rent rebate.

The Divisional Court upheld the Board's decision, finding that the applicability of the Act was res judicata due to a prior final order.

Furthermore, the Board correctly applied section 135.1(5) of the Act to validate a previously non-compliant rent increase because the tenant had paid it for over 12 months and the matter was not finally determined before the statutory deadline.

The court also dismissed the appellant's allegations of institutional bias.

The applicant, Huck Glove Company Inc., sought payment of a Bonus Density Fee under an Agreement of Purchase and Sale for a property sold to the respondents.

The respondents argued that the claim was statute-barred under the Limitations Act, 2002, as the site plan approval that triggered the payment occurred in February 2019, but the application was not filed until April 2023.

The applicant contended that it only discovered the claim in December 2021 when the respondents explicitly denied that the fee was owing.

The court dismissed the application, holding that a reasonable person in the applicant's circumstances would have discovered the claim at the time of site plan approval or when construction commenced in 2019.

The court dismissed Milad Babadi’s motion for judicial recusal and related relief as frivolous, vexatious, and an abuse of process.

The decision reviews the strong presumption of judicial impartiality, the proper remedy of appeal, and the hallmarks of vexatious litigation.

The court found Mr. Babadi’s conduct and submissions to be a textbook example of vexatious litigation and stayed his motion, prohibiting further motions without leave.

The decision addresses an application by Edwin Capehart to exclude evidence on the basis of alleged violations of his Charter rights, specifically regarding a warrantless download of cellphone data and the validity of two search warrants.

The court finds a breach of s. 8 of the Charter due to police delay in seeking a warrant after a warrantless download, but ultimately admits the evidence after a Grant analysis.

The court finds Capehart guilty on most counts, including firearms and drug offences, and not guilty on two counts.

The applicant, Heather Ann Hugginson, sought a declaration that a $400,000 inter vivos gift allegedly given by the deceased, Glenn Poole, to the respondent, Sandra Hugginson, was invalid and that the funds should be returned to the estate.

The court found that Sandra failed to prove Glenn’s specific intent to make the gift or that he delivered the gift before his death.

The court also rejected the argument that the gift was perfected when Sandra became estate trustee, finding the rule in Strong v. Bird did not apply.

The application was granted and Sandra was ordered to return the $400,000 to the estate.

The applicant, Steven Jackson, sought a stay of proceedings on multiple criminal charges, including assault and criminal harassment, alleging a violation of his right to be tried within a reasonable time under section 11(b) of the Charter.

The total delay in bringing the matter to trial was over 33 months, which exceeded the 30-month presumptive ceiling established in R. v. Jordan.

The Crown argued that the delay was justified by exceptional circumstances arising from a new voyeurism charge and subsequent arrest of the applicant.

The court rejected this argument, finding that the police had inappropriately and foreseeably disrupted the proceedings by arresting the applicant right outside the courtroom.

Accordingly, the court granted the application and stayed all charges.

The City of Waterloo sought and was granted interlocutory statutory and quia timet injunctions to restrain "persons unknown" from violating the City's Nuisance Party By-law in connection with anticipated unsanctioned St. Patrick’s Day street parties.

The court found a clear breach of the by-law, significant unrecoverable public costs, and a high probability of irreparable harm.

The decision reviews the legal standards for statutory and quia timet injunctions, the public interest in enforcement, and the limited impact on Charter rights.