Michael R. Gibson

This decision concerns an application by Kadejah Moore for the return of her children from Croatia under the Hague Convention and the Children’s Law Reform Act.

The court found that the children were wrongfully removed from Ontario by their father, Mehmed Mujic, and ordered their immediate return.

The decision reviews the legal framework for international child abduction, the concept of habitual residence, and the use of chasing orders and letters rogatory in international family law.

The court considered whether to dismiss the Schembri Action and strike Schembri’s defence in the Way Action due to Schembri’s repeated, prolonged, and intentional failure to comply with documentary disclosure obligations, including undertakings and multiple court orders.

The court found Schembri’s conduct deliberate and unjustified, resulting in significant delay and prejudice.

Applying the principles from Falcon Lumber and related appellate authorities, the court held that the exceptional remedy of dismissal and striking pleadings was proportionate and necessary to uphold the integrity of the justice system.

R.D. was found guilty by a jury of three counts of sexual assault, three counts of sexual interference, and one count of invitation to sexual touching against N.W., a young child and his de facto stepdaughter.

The court considered aggravating factors including abuse of trust, the victim's young age (6-7), multiple instances of abuse, and the offender's prior criminal record.

R.D. denied the offences and expressed no remorse.

Emphasizing denunciation and deterrence, and guided by R. v. Friesen, the court imposed a global sentence of 5.5 years imprisonment, reduced to an effective sentence of 4 years after accounting for pre-sentence custody credits, including a substantial Duncan credit for harsh conditions at Maplehurst Correctional Complex.

Ancillary orders were also imposed.

The Crown appealed a conditional discharge sentence imposed on the respondent for distributing intimate images and breach of a release order.

The Crown argued the sentencing judge erred by imposing a probation order akin to a conditional sentence, failing to adequately address denunciation and deterrence, and concluding the discharge was not contrary to public interest.

The appeal court dismissed the appeal, finding the sentencing judge did not err in principle or impose an unfit sentence, emphasizing the individualized nature of sentencing and the deference owed to the sentencing judge's discretion.

The applicant, a condominium developer, sought declarations that the respondent purchaser breached an Agreement of Purchase and Sale (APS) by failing to close, that the agreement was terminated, and that the deposits paid by the respondent were forfeited.

The respondent argued misrepresentation, claiming the property was not a new pre-construction unit as understood, but an already constructed and occupied model suite.

The court found the respondent in breach of the APS, noting inconsistencies in the respondent's sworn affidavits regarding the agreement's validity.

The court granted the applicant's request, ordering the forfeiture and disbursement of the deposits to the applicant.

The Crown appealed a conditional discharge sentence imposed on the respondent for distributing intimate images of his former partner, arguing the sentence was unfit, akin to a disguised conditional sentence, and failed to adequately address denunciation and deterrence.

The Superior Court of Justice, sitting as a summary conviction appeal court, dismissed the appeal, finding that the sentencing judge did not err in principle or law, and the sentence was not demonstrably unfit, emphasizing the deference owed to sentencing judges and the individualized nature of sentencing.

The respondent, Asif Qadar, successfully moved to dismiss an application brought by Jose Zepeda.

Qadar argued Zepeda lacked legal capacity and improperly sought corporate remedies in a personal capacity, circumventing derivative action requirements under the Business Corporations Act.

The court found that most of the relief sought by Zepeda, despite being framed as oppression, was properly for the corporation, not Zepeda personally.

Consequently, the application was dismissed due to procedural impropriety and Zepeda's lack of capacity to pursue corporate claims in a personal action.

The appellant, William Simpson, appealed his convictions for sexual interference and sexual assault.

He argued that the trial judge applied uneven scrutiny, misapplied the guidance in R. v. W.(D.), and erred by relying on speculation and impermissible stereotypes.

The appellant also sought to admit fresh evidence from a clinical psychiatrist regarding his mental acuity at the time of trial.

The court dismissed the fresh evidence application, finding it lacked cogency, due diligence, and credibility.

On the merits of the appeal, the court found no error in the trial judge's W.(D.) analysis, no s.276 or Seaboyer error, and no erroneous reliance on common-sense assumptions.

The court affirmed that the trial judge's credibility assessment was rooted in the evidence and entitled to deference.

The appeal was dismissed.

Following a trial where the defendants were found liable in nuisance and negligence for flooding the plaintiff's lands, the parties disagreed on the calculation of prejudgment interest (PJI).

The plaintiff sought PJI based on the Canadian bank prime rate compounded annually, while the defendant argued for the statutory rate under s. 128 of the Courts of Justice Act.

The court exercised its discretion under s. 130 of the Act to award compound interest at the prime rate, finding that the statutory rate would under-compensate the plaintiff and provide an unwarranted financial windfall to the defendants who had avoided maintenance costs for decades.

This decision addresses costs in an estate dispute where the Applicant sought enforcement of Arbitration Orders.

The court had previously ruled in favour of the Applicant, enforcing Minutes of Settlement as amended by an Arbitrator's Orders.

The Applicant requested full indemnity costs, alleging the Respondent's conduct was vexatious, inappropriate, obstructionist, and involved "scorched earth litigation tactics" and "abusive tactics." The Respondent, self-represented, did not address the quantum but continued to criticize the Applicant and her counsel.

The court found the Applicant entirely successful and the Respondent's conduct egregious, warranting full indemnity costs.

The Respondent was ordered to personally pay $19,930.26 in costs, not from the Estate.

The parties cohabited for five and a half years.

Following their separation, the applicant sought a 50% share of the net proceeds from the sale of a property solely owned by the respondent, claiming a resulting or constructive trust, and unjust enrichment.

The respondent sought a 30/70 division in her favour and transitional spousal support.

The court found that the parties' initial and ongoing contributions were unequal, with the respondent contributing significantly more.

The court ordered the net proceeds divided 30% to the applicant and 70% to the respondent.

The respondent's claim for spousal support was dismissed as she failed to establish need or compensatory entitlement.

The plaintiff, an electrical contractor, sued the defendants for breach of a time and materials contract for electrical services provided to a grocery store.

The central issues included the interpretation of the contract, the identification of the proper contracting parties given that "Dutchies Fresh Food Market" was a non-existent entity, the amount of unpaid invoices, and a claim for punitive damages.

The court found the individual defendant personally liable, jointly with specific corporate entities, for contracting on behalf of a non-existent corporation.

The court awarded the full amount of the unpaid invoices, accepting the plaintiff's evidence regarding time and materials, including overtime, breaks, and material costs.

However, the claim for punitive damages was denied, as the defendants' conduct, while uncooperative, did not meet the high threshold of malicious, oppressive, or high-handed behavior required for such an award.

This is a construction lien action and counterclaim arising from a fixed-price drywall contract.

The plaintiffs, Nikom Construction Inc. (contractor) and Invoice Payment System Corporation (factoring company), sued for unpaid invoices.

The defendant, The Block Inc. (owner), counterclaimed for damages due to alleged contract breaches, deficiencies, and abandonment by Nikom.

The court found that Nikom repudiated the contract by failing to provide adequate manpower and supervision, and by having significant deficiencies, rather than The Block repudiating by late payments.

The court also ruled that the "indoor management rule" did not bind The Block to unauthorized invoice approvals.

Consequently, the plaintiffs' action was dismissed, their liens discharged, and The Block's counterclaim for costs to complete and correct Nikom's work was granted in part, with the plaintiffs ordered to pay $325,824.41 plus pre-judgment interest.

This case concerns a civil action brought by the plaintiffs against the Niagara Regional Police Service and individual officers for alleged negligence, assault, and breaches of their Charter rights during the execution of a search warrant.

The police conducted a dynamic entry into the plaintiffs' home, where their son, suspected of drug dealing and firearm possession, resided.

The plaintiffs claimed psychological injuries, property damage, and mistreatment during their detention.

The court found the plaintiffs' testimony lacked credibility and preferred the defendants' expert psychiatric evidence.

It concluded that the police acted reasonably and within their duties, dismissing the plaintiffs' claims for lack of compensable damage, absence of a causal connection to a breach of the standard of care, and no proven serious psychiatric injury.

The plaintiff, National Steel Car Limited, brought an action against the City of Hamilton, ArcelorMittal Dofasco Inc., and the Hamilton Port Authority for damages caused by reoccurring flooding to its property from the Kenilworth Avenue Drainage Channel.

The court found the City and AMD liable in nuisance, negligence, and strict liability under the rule in Rylands v. Fletcher for failing to maintain the channel and altering its flow, which caused substantial and unreasonable interference with the plaintiff's property.

The action against the Hamilton Port Authority was dismissed.

The court awarded the plaintiff over $5.2 million in compensatory damages, granted a permanent mandatory injunction requiring the City and AMD to remediate and maintain the channel, and awarded punitive damages of $500,000 against AMD and $400,000 against the City.

The applicant sought the release of a settlement conference transcript to impeach the respondent's credibility in a motion to change a final order regarding spousal support.

The court dismissed the applicant's motion, affirming the strong presumption of confidentiality for settlement conferences under Rule 17(23) of the Family Law Rules.

The court held that only extraordinary circumstances, typically involving safety concerns, would warrant the release of such transcripts, and no such circumstances were demonstrated.

The Applicant, Marcy Lightfoot, sought costs on a full recovery basis following a successful motion for partition and sale of the matrimonial home and interim spousal support.

The Respondents, David Lightfoot and Evelyn Lightfoot, opposed the costs.

The court awarded costs of $29,000 to the Applicant, citing the Respondent David Lightfoot's unreasonable, obstructionist, and contemptuous conduct throughout the litigation, including his refusal to settle and disrespectful behaviour in court.

The decision emphasized that self-represented litigants are not immune from costs consequences for inappropriate conduct.

The applicant, Michael Theberge, charged with drug and weapons offences, brought a pre-trial motion to exclude evidence obtained during the execution of a search warrant at his residence.

He argued that the police's use of a "dynamic entry" (battering ram, limited penetration) violated his section 8 Charter rights, contending it was an unwarranted and unreasonable use of force.

The Crown argued the entry method was justified by reasonable grounds concerning officer safety and the potential destruction of evidence.

The court, applying principles from R. v. Cornell and R. v. Pileggi, found that the police had reasonable grounds to depart from the "knock and announce" rule, made an individualized assessment, and did not act based on a blanket policy.

The application to exclude the evidence was dismissed.

The applicant, a school board trustee, brought motions to stay sanctions imposed against her by the respondent school board for violating its Trustee Code of Conduct, pending the hearing of her judicial review applications.

The sanctions included barring her from attending board and committee meetings and a public censure.

The court applied the RJR-MacDonald test and granted the stay, finding that there were serious issues to be tried regarding the board's process and jurisdiction, that the applicant would suffer irreparable harm if barred from meetings she could never attend again, and that the balance of convenience favoured the applicant as her application would be largely moot if she served the sanctions before the hearing.

The applicant, facing multiple serious charges including drug trafficking and flight from police, applied for a bail review under s. 520 of the Criminal Code.

The Crown conceded a material change in circumstances, prompting a de novo hearing.

The court found that the applicant, who had repeatedly breached previous release conditions, posed a substantial risk of reoffending that could not be adequately managed by the proposed release plan, which included GPS monitoring and his parents as sureties.

The application was dismissed, with the court concluding that continued detention was justified on both the secondary and tertiary grounds.