Michael N. Varpio

The sentencing hearing was scheduled to proceed, but the Gladue Report prepared by Aboriginal Legal Services arrived the evening before the hearing.

Defence counsel requested an adjournment to review the 30-page report with the accused.

The court granted the adjournment on consent, noting the importance of Gladue Reports and the need for timely filing, particularly given the value of court time during the pandemic.

The applicant sought judicial review of a decision by the Ontario Media Development Corporation (OMDC) denying a film tax credit on the basis that its production, Reflections, was not a 'documentary'.

The applicant argued the OMDC's interpretation was unreasonable and fettered by anti-evangelical Christian bias.

The Divisional Court applied the reasonableness standard from Vavilov and found the OMDC's interpretation of 'documentary' and its application to the production were reasonable.

The court also dismissed the allegations of bias and procedural unfairness.

The application for judicial review was dismissed.

The applicant brought a motion for leave to appeal the order of the lower court judge.

The Divisional Court granted the motion for leave to appeal and awarded costs to the applicant in the amount of $5,000 inclusive of disbursements and HST.

The defendant brought a motion for leave to appeal the order of Myers J. The Divisional Court granted the motion for leave to appeal and awarded costs of $5,000 to the moving party.

The moving party sought leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 inclusive of disbursements and HST to the responding party.

The defendants brought a motion for leave to appeal the order of Lococo J. The Divisional Court dismissed the motion for leave to appeal and ordered costs payable forthwith to the plaintiffs in the amount of $5,000 inclusive of disbursements and HST.

The appellants appealed the dismissal of their application to declare a municipal election invalid.

They argued the removal of 1,131 names from the preliminary voters' list constituted an irregularity under the Municipal Elections Act.

The Divisional Court dismissed the appeal, finding the appellants failed to adduce evidence that any voters were disenfranchised or that the presiding justice erred in concluding no irregularity occurred.

The Crown appealed the accused's acquittals on impaired driving and 'over 80' charges.

The trial judge had excluded breath samples under s. 24(2) of the Charter after finding a s. 8 breach, and acquitted on the impaired charge due to a reasonable doubt caused by head trauma.

The Superior Court of Justice allowed the appeal, finding the trial judge committed palpable and overriding errors by failing to consider the accused's admission of drunkenness when assessing the officer's reasonable and probable grounds, and by improperly applying voir dire evidence to the trial proper.

A new trial was ordered.

The accused was charged with multiple offences, including assault, pointing a firearm, and mischief, arising from a seventeen-year relationship with the complainant.

The court found the complainant's evidence regarding the major incidents, including two instances of pointing a handgun and an assault with rocks, to be credible and reliable, supported by corroborating evidence.

However, the court had a reasonable doubt regarding the reliability of her testimony on lesser charges due to conflation of events over the lengthy period of abuse.

The accused was found guilty of assault, pointing a firearm, assault with a weapon, and mischief, but acquitted of the remaining charges.

The accused was charged with arson and manslaughter following a fatal fire at a rooming house.

The Crown's case relied heavily on two alleged confessions by the accused and his history of making threats to burn down the building.

The court found significant credibility and reliability issues with the Crown witnesses, many of whom suffered from mental health issues or had extensive criminal records.

Furthermore, the presence of a plausible alternate suspect with a motive raised a reasonable doubt.

The accused was found not guilty on both charges.

During a trial for arson and manslaughter, the Crown brought an application to admit the preliminary hearing testimony of two missing witnesses under the principled exception to the hearsay rule.

The court found the necessity requirement was met because police made reasonable efforts to locate the transient witnesses.

The reliability requirement was also met as the evidence was given under oath and subject to contemporaneous cross-examination.

The application was granted and the audio recordings were admitted into evidence.

The Cooperators General Insurance Company appealed a preliminary decision of the Licence Appeal Tribunal (LAT) finding that the claimant was a 'dependant' and thus an insured under the policy.

The claimant argued the appeal was premature as the hearing on the merits was scheduled for a later date.

The Divisional Court agreed, dismissing the appeal as premature to avoid fragmented administrative proceedings and inefficiency.

Ontario brought a motion to quash an application by the Thessalon First Nation regarding the size of its reserve under the Robinson-Huron Treaty of 1850.

Ontario argued the complex historical and treaty issues required a trial rather than an application.

The court agreed that the matter required a proper evidentiary foundation and ordered the application converted to an action under Rule 38.10(1)(b), with a staged litigation process to follow.

The respondent father brought a contempt motion against the applicant mother for overholding their child.

The child was returned before the motion, and the court dismissed the contempt motion as it was not in the child's best interests.

In this costs decision, the court found the father was justified in preparing the motion materials but should not have argued the motion after the child was returned.

The court awarded the father $1,500 in costs.

The accused, charged with sexual offences, brought a Charter motion challenging the constitutionality of sections 278.92 and 278.94 of the Criminal Code.

These provisions govern the admissibility of records in the accused's possession, such as the complainant's social media messages.

The court applied the 'plainly wrong' test to a recent coordinate jurisdiction decision, R. v. Reddick, which had struck down the provisions.

Finding that Reddick was not plainly wrong, the court followed it and declared sections 278.92 and 278.94 unconstitutional and of no force or effect.

The plaintiffs brought a motion to strike the defendants' jury notice in a motor vehicle accident claim due to systemic delays caused by the COVID-19 pandemic.

The plaintiffs, who were approximately 70 years old, argued that waiting for a jury trial would cause significant delay and prejudice.

The court applied recent appellate authority and found that the uncertainty of securing a jury trial date, combined with the plaintiffs' age and the relative expedience of a judge-alone trial, warranted striking the jury notice.

The motion was granted.

The accused pleaded guilty to firearms and drug trafficking offences after shooting and killing an assailant who attempted to rob him during a drug deal.

The Crown sought a sentence of eight to nine years, while the accused sought five years.

The court found that the shooting constituted lawful self-defence under s. 34(1) of the Criminal Code and therefore could not be used as an aggravating factor in sentencing.

The court imposed a global sentence of six years in custody, emphasizing denunciation and deterrence for the firearms and drug offences while acknowledging the accused's youth and rehabilitative prospects.

This motion concerned a Hague Convention application brought by the mother for the return of the child to Costa Rica.

The father opposed, arguing the child's habitual residence was Canada or that the parties had agreed to the child residing with him.

The court found both parents engaged in discreditable conduct, discounting their affidavit evidence.

Based on objective evidence, the court determined the child's habitual residence was Costa Rica at the time of travel to Canada and that no agreement to change residence existed.

The child was ordered to be returned to Costa Rica forthwith.

No costs were awarded due to both parties' unreasonable conduct.

This case involved cross-motions for summary judgment concerning the enforceability of a personal guarantee provided by a defendant for a corporate mortgage.

The plaintiff, a mortgagee, sought to enforce the guarantee against the defendant guarantor, despite multiple mortgage extensions made without the guarantor's knowledge or consent.

The court applied principles of contractual interpretation, particularly the strict construction of guarantee clauses, especially for accommodation sureties.

It found that specific language in the Mortgage Schedule, which defined a time-limited guarantee, amended the broader Standard Charge Terms that allowed for extensions without affecting the guarantee.

Consequently, the guarantor's liability was held to have terminated upon the expiration of the initial term, rendering the guarantee unenforceable at the time of default.

The father sought a mobility order to return children from Sault Ste.

Marie to Ottawa, while the mother filed a cross-motion for child support.

The court, prioritizing the children's best interests, expressed concerns over the mother's alleged substance abuse and both parties' insufficient evidence regarding care plans.

The judge ordered further detailed affidavits from both parents on specific issues, including the mother's drug history and living conditions, and the father's proposed care plan.

The Office of the Children's Lawyer was invited to intervene.

An interim decision on residency and child support is pending receipt of the additional evidence.