Pamela L. Hebner

The accused, Shanice Wynter, brought an application for an order allowing her counsel to make an opening address immediately after the Crown’s opening address in a joint criminal trial for first-degree murder and aggravated assault.

The Crown opposed, and the co-accused did not join the application.

The court, exercising judicial discretion, determined that an early defence opening is only permissible in special or exceptional circumstances.

Considering factors such as the trial's length and complexity, but also the "all or none" approach for co-accused in joint trials, the court dismissed the application.

It concluded that special or exceptional circumstances were not present and that following the procedure outlined in s. 651 of the Criminal Code was the fairest course of action.

This case involved cross-motions for summary judgment concerning a terminated mortgage commitment letter.

The plaintiffs (developer) sought the return of a lender fee, alleging the defendants (lender) made unreasonable demands and acted in bad faith, leading to the termination.

The defendants sought the outstanding balance of the fee.

The court determined that a $100,000 deposit paid by the developer was a valid liquidated damages clause and could be retained by the lender.

However, the remaining $326,500 of the lender fee was deemed an unenforceable penalty, as the lender provided insufficient evidence of damages incurred for work not performed.

The court granted the plaintiffs' motion for summary judgment for the $326,500 and dismissed the defendants' motion.

In a pre-trial Charter motion arising from a first degree murder prosecution, the accused sought exclusion of evidence obtained from cell phones seized from a vehicle and from a residence.

The court held that defects in the initial Nissan warrants and the continuation of the search after withdrawal of charges against a third party did not establish a breach, but the delayed return to justice and prolonged detention of the phones without judicial authorization did breach s. 8.

Applying the Grant framework, the court nevertheless admitted the Nissan phone evidence because the impact of the reporting breach was negligible and the evidence was highly important to adjudication on the merits.

In contrast, the residential warrant was facially invalid, the seizure of a phone from a bedroom bag was not authorized by the warrant, s. 489(1), plain view, or search incident to arrest, and the resulting picture and video were excluded under s. 24(2).

The applicant husband brought a motion for partial summary judgment to determine if a lump sum disability payment received by the respondent wife was excluded from her net family property for equalization purposes.

The court found that the respondent failed to meet her onus to prove that any portion of the settlement related to post-separation payments or that the funds could be traced into her interest in the jointly owned cottage property in a manner that would allow for an exclusion under the Family Law Act.

The motion for partial summary judgment was granted, concluding that the respondent had not proven the claimed exclusion.

This ruling addresses an application by an accused, Ms. Wynter, to be off-screen during pre-trial motions in a first-degree murder trial, specifically during motions where she conceded she lacked standing.

The request was based on a misunderstanding of attendance requirements and employment obligations.

The court dismissed the application, emphasizing the fundamental right and duty of an accused to be present throughout their trial, even in ancillary proceedings where their interests may be affected, and that economic hardship must be substantial to justify absence.

The mortgagee defendants brought a motion seeking an order that the corporate plaintiff pay security for costs under Rule 56.01(d) of the Rules of Civil Procedure.

The underlying action involved a failed real estate development and claims of civil conspiracy and knowing receipt of trust property.

The court found good reason to believe the plaintiff had insufficient assets in Ontario to pay costs, and the plaintiff failed to demonstrate impecuniosity or a real possibility of success on its equitable claims.

The motion was granted, and the plaintiff was ordered to post security for costs in the amount of $186,000.

Following an 18-day trial on parenting issues, the applicant sought costs of $418,795.

The court reviewed the parties' offers to settle, noting the applicant obtained a result more favourable than her final offer, entitling her to elevated costs under Rule 18(14) of the Family Law Rules.

The court found the respondent's behaviour and settlement positions unreasonable.

Applying principles of reasonableness and proportionality, the court awarded the applicant costs fixed at $315,300 plus HST, inclusive of costs for several interim motions.

The accused, Preet Kiran Singh Gill and Suresh Sharma, were charged with importing cocaine and possession for the purpose of trafficking after approximately 25 kg of cocaine were found in their commercial tractor-trailer at the Canadian border.

The Crown's case was circumstantial, relying on evidence of undocumented stops during their return trip from California and Mr. Gill's inconsistent and untruthful statements to authorities.

The defence argued that the accused were blind couriers and the cocaine was loaded at one of the pick-up locations without their knowledge.

The court found Mr. Gill's testimony not credible due to numerous inconsistencies and deliberate deceptions, concluding that the only reasonable inference was his knowledge and control of the cocaine.

However, for Mr. Sharma, the court found a rational inference that he was unaware, as he was sleeping during the undocumented stops and was not the primary driver or decision-maker.

Mr. Gill was found guilty on both counts, while Mr. Sharma was found not guilty on both counts.

The appellant, Sarah Sefton, appealed her conviction for driving over 80, arguing the trial judge erred in dismissing her Charter application to exclude breath test results.

The trial judge had found multiple s. 10(b) Charter breaches (delay in facilitating counsel, failure to advise right to wait for counsel of choice) but dismissed the s. 24(2) Charter application, deeming the breath test minimally intrusive.

The appeal court found the trial judge erred in her s. 24(2) analysis by focusing solely on the physical intrusiveness of the breath test rather than the broader impact of the denial of the right to counsel without delay on the accused's protected interests.

Re-evaluating the Grant factors, the appeal court concluded that the serious and multiple breaches of the right to counsel, including prolonged detention without access to a "lifeline" of advice, warranted the exclusion of the breath test samples.

The plaintiffs (purchasers) and defendants (vendors) entered into an agreement of purchase and sale for a residential property.

On the closing date, the plaintiffs' bridge financing was delayed, and they failed to tender the closing funds by the 6:00 p.m. deadline.

The agreement contained a 'time is of the essence' clause.

The next day, the plaintiffs tendered the funds, but the defendants refused to close unless the purchase price was increased by $50,000.

The plaintiffs made counteroffers, which were rejected.

The plaintiffs sued for specific performance and brought a motion for summary judgment, while the defendants brought a cross-motion for summary judgment.

The court dismissed the plaintiffs' motion and granted the defendants' cross-motion, finding that the defendants acted in good faith, were ready to close, and were entitled to rely on the 'time is of the essence' clause to terminate the agreement.

The parties separated and engaged in a high-conflict dispute over parenting time and decision-making responsibility for their two young children.

The applicant mother sought primary residence and sole decision-making, while the respondent father sought equal parenting time and joint decision-making.

The court found that the parties had a complete inability to communicate and cooperate, largely due to the respondent's disrespectful and antagonistic behaviour.

The court ordered that the children have their primary residence with the applicant, with the respondent having parenting time on alternating weekends and one evening per week.

The court also ordered a parallel parenting arrangement, granting the applicant decision-making responsibility for education, health, and extracurricular activities, and the respondent decision-making responsibility for spiritual upbringing.

During a trial for drug importation, the accused brought an application to exclude his video statement to police, alleging a breach of his s. 10(b) Charter rights.

The accused, whose first language is Punjabi, struggled with English during his police interview, but officers did not offer him the opportunity to speak with duty counsel in Punjabi or with an interpreter.

The court found that special circumstances arose during the interview when the accused's language difficulties became apparent, triggering a duty on police to ensure he understood his rights.

The court concluded the accused's s. 10(b) rights were breached and excluded the statement under s. 24(2) of the Charter.

The offender was convicted of conspiracy to kidnap, conspiracy to commit assault causing bodily harm, and uttering threats.

The offences arose from a plan to abduct and torture a victim over an alleged drug debt, which was thwarted by police intervention.

The court weighed the heinous nature of the planned violence and the offender's role as the ringleader against his limited criminal record and positive community involvement.

The offender was sentenced to a total of 3 years' incarceration, less pre-sentence custody credit.

The plaintiff, an Ontario resident, was struck by a motor vehicle driven by the defendant in Michigan.

The plaintiff commenced an action in Ontario against the Michigan defendant in tort and his own insurer for underinsured coverage.

The Michigan defendant moved to stay the action for lack of jurisdiction.

The court applied the real and substantial connection test and found no presumptive connecting factors linking the tort claim to Ontario.

The court also declined to apply the forum of necessity doctrine, holding that the plaintiff's failure to commence an action in Michigan before the expiry of its limitation period did not create an exceptional circumstance justifying jurisdiction.

The action against the Michigan defendant was stayed.

The offender was convicted of possession of crack cocaine and possession of over two kilograms of cocaine for the purpose of trafficking.

The court found the offender acted as a distributor, packaging the cocaine for sale after a co-accused transported it from Toronto.

Considering the offender's significant criminal record and the large quantity of cocaine, the court imposed a sentence of eight years imprisonment.

The offender received 16 months of credit for time spent on strict house arrest bail conditions and the anticipated impact of the COVID-19 pandemic on his incarceration.

The applicant brought a motion seeking an order that one-half of the sale proceeds of a mobile home owned by the respondent be placed in trust as security for his claim of a joint family venture.

The parties, who were unmarried, lived together for a lengthy period.

The applicant claimed to have made significant financial and physical contributions to the mobile home.

Because the parties were not married, the court determined the applicant could not rely on section 12 of the Family Law Act and instead applied the test for a Mareva injunction.

The court found the applicant established a strong prima facie case, a serious risk of dissipation of assets, and that the balance of convenience favoured granting the injunction.

The motion was granted, requiring one-half of the net proceeds to be held in trust upon the applicant filing an undertaking as to damages.

This case involved a divorce and the equalization of net family property after a 24-year marriage.

The primary dispute centered on the valuation of the applicant's paralegal professional corporation, specifically whether the value of his client contingency contracts for WSIB claims should be included as a corporate asset for equalization purposes.

The court determined that these contracts constituted "property" under the Family Law Act and should be included in the valuation.

The court also addressed the appropriate discount rates for valuing these contracts, the treatment of real properties, a numbered company, and various debts.

The court declined to order a transfer of shares for tax planning reasons, emphasizing that Section 9(1) of the Family Law Act is not for tax optimization but for ensuring payment where there is a proven risk of non-compliance.

The respondent brought a motion to vary a spousal support order, seeking a reduction from $17,224 to $4,835 per month due to a disability that significantly reduced his income from $600,000 to $104,400 annually.

The court found a material and long-lasting change in circumstances, a strong prima facie case for variation, and that continuing the existing support would cause hardship to the payor.

The motion was deemed urgent, partly because the income reduction predated the COVID-19 pandemic.

The court granted an interim variation, reducing spousal support to $4,835 per month and staying the enforcement of accumulated arrears.

The applicants brought an application to enforce minutes of settlement reached at mediation regarding the administration of an estate.

The respondent opposed, arguing the applicants had breached the agreement by failing to transfer a specific property to her.

The court found that the delay in transferring the property was due to the respondent's own failure to provide a necessary direction as to title.

Emphasizing the principle of finality in settlements, the court granted judgment enforcing the minutes of settlement.

The respondent father sought leave to bring an urgent motion for a shared, week-about residency schedule for the two children, alleging the applicant mother's mental health issues, inability to parent both children, and defiance of an existing court order.

The court, acting as a triage justice during the COVID-19 pandemic, determined that the matter met the definition of urgency as it related to the children's well-being and alleged retention of a child, allowing the motion to proceed with directions for filing materials.