Pamela L. Hebner

The applicant mother sought the return of her two children to the Dominican Republic under the Hague Convention after the respondent father retained them in Ontario following a summer visit.

The father opposed the return, citing exceptions under Article 13(b) (grave risk of harm) and Article 13(2) (child's objection).

The court found that the children had suffered severe physical and psychological abuse while in the mother's care, establishing a grave risk of harm if returned.

The 14-year-old child strongly objected to returning, and separating the 8-year-old from his sister would create an intolerable situation.

The court also admitted fresh evidence showing the mother attempted to abduct the younger child during the proceedings.

The application was dismissed, and Ontario assumed jurisdiction over parenting.

The accused, Jeffrey Faflak, faced a five-count indictment for sexual assault and sexual exploitation involving one complainant, S.W., with alleged offences occurring between 1988 and 1992.

The court assessed the complainant's credibility and reliability, noting inconsistencies and fragmented memories, particularly regarding the exact dates of events and specific details of the alleged assaults.

The court also considered whether the accused was in a position of authority under the 1985 Criminal Code.

Ultimately, the court found the complainant's evidence insufficiently reliable to ground a conviction beyond a reasonable doubt on any of the counts, leading to the acquittal of the accused on all charges.

The appellant appealed a Licence Appeal Tribunal decision finding he did not suffer a catastrophic impairment from a 2016 motor vehicle accident.

The appellant argued the Tribunal erred in its treatment of expert and lay evidence, relied on hearsay, and misapplied the causation test.

The Divisional Court dismissed the appeal, finding the Tribunal reasonably rejected the appellant's expert evidence after the expert recanted his opinion upon being presented with contradictory medical and benefits records.

The court also held that hearsay evidence is admissible before the Tribunal and the causation test was properly applied.

The applicant physician sought to set aside a motion judge's decision quashing his application for judicial review of the hospital boards' decision not to renew his privileges.

The motion judge had found the application would offend the principle against fragmentation and constituted a collateral attack on the Public Hospitals Act process.

The Divisional Court dismissed the motion to set aside, finding the application was premature, any procedural defects were cured by a subsequent de novo hearing before the Health Professions Appeal and Review Board, and the remedy sought was an abuse of process aimed at producing an inconsistent result.

The applicant, a teacher, sought judicial review of the Investigation Committee of the Ontario College of Teachers' decisions not to refer his complaints against three colleagues to the Discipline Committee.

The complaints related to a school play about bullying and violence that the applicant claimed triggered a traumatic response.

The Divisional Court dismissed the application, finding that the applicant lacked standing to challenge the substantive reasonableness of the decisions, as complainants in professional discipline cases generally only have standing for procedural fairness issues.

The court further held that the process was procedurally fair and the committee's decisions were reasonable.

During a trial for first degree murder and attempted murder, a Crown witness recanted her previous statements and testified in chief that a third party named 'George' was with her at the time of the shooting, rather than the accused.

The Crown requested a ruling that the defence must bring a formal third party suspect application before cross-examining the witness on this issue.

The court ruled that no application was required, as the evidence was direct evidence of a third party suspect that had already been elicited by the Crown, establishing its own logical relevance without the need for a formal application.

The Crown brought an application under s. 9(1) of the Canada Evidence Act seeking leave to cross-examine its own witness, Keima Davis-Baynes, due to significant inconsistencies between her trial evidence and prior statements to police and at a preliminary inquiry.

The defence opposed the application.

The court found the witness to be adverse to the Crown's position and, after considering the probative value and potential prejudicial effect, granted the Crown leave to cross-examine the witness on the inconsistencies, subject to specific restrictions to prevent the jury from misusing the evidence to infer the accused's credibility or guilt.

The Crown brought an application to admit a police interview of a recanting witness, Ms. Keima Davis-Baynes, for the truth of its contents under the principled exception to the hearsay rule.

The accused did not oppose the application.

The court found that the criteria of necessity (due to the witness's recantation) and threshold reliability (established by procedural reliability, including a video-recorded, sworn statement, and the witness's availability for cross-examination at trial, and substantive reliability through corroborating independent evidence) were met.

The court also determined that the prejudicial effect of the statement did not outweigh its probative value.

The Crown's application was granted.

The appellant landlord appealed a Landlord and Tenant Board decision finding that the Residential Tenancies Act applied to a waterfront lot leased to the respondent tenant.

The lot contained a cottage subject to a 99-year lease.

The landlord argued the property was exempt under section 5(a) of the Act as seasonal or temporary accommodation.

The Divisional Court dismissed the appeal, holding that an annual rental of premises used seasonally does not fall within the section 5(a) exemption, which is intended for temporary accommodations for the travelling or vacationing public.

The accused, Kahli Johnson-Phillips and Shanice Wynter, brought an application under s. 11(b) of the Charter of Rights and Freedoms, seeking a stay of charges for first-degree murder and other offences due to unreasonable delay.

The court applied the R. v. Jordan framework, calculating total delay, subtracting defence delay, and considering exceptional circumstances, particularly the impact of the COVID-19 pandemic.

The court found that after deducting defence-attributable delays and pandemic-related delays, the net delay for both accused was below the 30-month presumptive ceiling.

The court also determined the case to be particularly complex, which would justify a delay above the ceiling if necessary.

Consequently, the s. 11(b) applications were dismissed.

The respondent was previously found in contempt for withdrawing $186,552.35 from a joint line of credit in breach of a court order.

The applicant sought to strike the respondent's pleadings as a penalty.

The court declined to strike the pleadings, noting it is a drastic remedy to be used only in exceptional circumstances, particularly in family law.

Instead, the court ordered the respondent to repay the outstanding balance, pay costs of $6,413.60, and pay a $10,000 penalty to the applicant from her share of the matrimonial home sale proceeds.

The appellant condominium corporation appealed a Condominium Authority Tribunal decision that allowed the respondent unitholder to park in designated accessible parking spaces and awarded him $1,500 in damages.

The appellant argued the Tribunal lacked jurisdiction because the parking dispute was connected to broader harassment claims falling under the section 117 carveout of the Condominium Act.

The Divisional Court dismissed the appeal, finding the parking issue was severable and within the Tribunal's exclusive jurisdiction.

The court upheld the Tribunal's findings that the unitholder was entitled to use the accessible spaces, the condominium could not charge back its enforcement costs, and the damages award was reasonable.

The appeal was dismissed without costs due to the respondent's vexatious conduct during the hearing.

Orchid Leasing Corporation brought a motion for summary judgment to dismiss the plaintiff's claim and Kent & Essex Mutual Insurance Company's cross-claim against it, arguing it was not the legal owner of the tractor involved in a motor vehicle accident at the time of the incident.

The court applied the principles of summary judgment and the legal test for ownership under the Highway Traffic Act, which establishes a rebuttable presumption of ownership based on MTO registration.

The court found that Orchid had successfully rebutted this presumption by demonstrating it had transferred all indicia of ownership and control to the driver, Dhillon, prior to the accident.

Consequently, the motion for summary judgment was granted, dismissing all claims against Orchid.

The moving parties brought a motion for leave to appeal to the Divisional Court.

The court dismissed the motion, finding that jurisdiction over the proposed appeal lies with the Court of Appeal pursuant to section 193 of the Bankruptcy and Insolvency Act.

Costs of $2,500 were awarded to the responding party.

The moving parties brought a motion for leave to appeal a costs order made by the lower court judge on February 17, 2023.

The Divisional Court dismissed the motion for leave to appeal.

Costs of the motion were awarded to the responding parties in the fixed amount of $5,000.

The moving party brought a motion for leave to appeal an unreported order of Myers J. The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The moving parties brought a motion for leave to appeal an order of Nieckarz J. dated February 21, 2023, and other related orders.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $2,663.98.

The appellant appealed a motion judge's order directing the partition and sale of the parties' matrimonial home and dismissing her cross-motion for temporary exclusive possession.

The Divisional Court found that the motion judge applied the correct legal test, balancing the prima facie right to sale against potential prejudice, and appropriately considered the status quo of the parties and their adult children.

Finding no palpable and overriding error or error of law, the court dismissed the appeal and awarded costs to the respondent.

The plaintiff, Stephan Wiener, brought a claim for solicitor's negligence against his former lawyer, Paul Strickland, and his firm, Siskinds LLP.

The claim arose from a mediation where a settlement document was prepared.

The plaintiff alleged that Mr. Strickland bound him to the settlement without his instructions, specifically concerning his ability to sue a third-party lawyer (Douglas Gunn) and the expiry of a limitation period for such a claim.

The court found that the settlement document, which referred to "standard releases" did not prevent the plaintiff from suing Mr. Gunn.

The court also rejected the argument that the limitation period had expired, noting that the defendant was not retained to advise on a claim against Mr. Gunn and that a limitation period is a defence, not a bar to launching an action.

The plaintiff's claim was dismissed.

The defence applied under s. 638(1)(b) of the Criminal Code for an order permitting specific challenge for cause questions, arguing a reasonable possibility of juror partiality.

The issues not on consent were the need for a question regarding partiality towards police (a Barnes question) and who would ask the questions.

The court allowed the police partiality question, finding that evidence of systemic racism within the Peel Regional Police Service and related media coverage created a realistic potential for partiality among prospective jurors.

The court also ruled that the trial judge, rather than counsel, would ask all challenge for cause questions to emphasize the court's impartiality and the importance of a fair trial.