Patricia C. Hennessy

The accused, charged with robbery, brought applications for a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter.

The total delay from the date of arrest to the anticipated end of trial was 25 months.

The court attributed significant portions of the delay to the Crown, including late disclosure of a 9-1-1 audio recording and failure to expedite scheduling.

Finding that the delay was unreasonable and that the accused suffered real prejudice from restrictive bail conditions, the court granted the applications and stayed the charges.

A community advocacy organization sought leave to intervene as a friend of the court in a family law dispute concerning a declaration of parentage and access involving a child conceived through a known sperm donor arrangement.

The court considered the criteria for intervention under Rule 13.02 of the Rules of Civil Procedure, including the nature of the case, the issues raised, and whether the intervenor could make a useful contribution without causing injustice to the parties.

The dispute raised broader socio‑legal questions about assisted human reproduction, donor agreements, and the recognition of diverse family structures.

The court found the proposed intervenor possessed relevant expertise, a substantial interest in the subject matter, and a distinct perspective that could assist the court.

Leave to intervene was granted subject to limitations designed to prevent duplication, expansion of issues, or additional costs.

In a criminal prosecution for sexual assault, the Crown brought a motion to admit two alleged prior consistent statements made by the complainant to third parties.

The Crown argued the statements were admissible under the narrative exception to explain the timing and fact of the complaint.

The court reviewed the governing principles that prior consistent statements are generally inadmissible except for limited purposes such as narrative context.

The statement made to one witness was found to be vague, lacking detail, and too remote in time to form part of a narrative, and was excluded.

The statement made to another witness, who was present on the night of the alleged incident and could identify the circumstances with specificity, was admitted for the limited purpose of establishing the fact and timing of the complaint.

The respondent mother brought a motion to change a consent order made at a settlement conference that declared a sperm donor agreement invalid.

The mother's former counsel had consented to the order via telephone while the mother was not present, and without prior notice that the agreement's validity would be determined.

The court found it had jurisdiction under Rule 25(19)(d) of the Family Law Rules to change the order because it was made without notice and the mother's counsel lacked ostensible authority to consent.

The motion was granted and the order was changed.

In a family law proceeding involving access and a declaration of parentage following a sperm donation, the parties jointly sought an order protecting the privacy of the child at the centre of the dispute.

The requested relief included amending the title of proceedings to use initials, prohibiting publication of identifying information, and sealing the court file.

The court held that the sensitive and intimate nature of the information in the proceedings created a risk of future emotional or psychological harm to the child if identifying details entered the public domain.

Relying on analogous cases and statutory authority under the Courts of Justice Act, the court concluded that the proposed anonymity and sealing measures were necessary and would not impair public debate about the legal issues.

The requested orders were granted to protect the child’s privacy and best interests.

The plaintiff brought a motion under rule 34.19 of the Rules of Civil Procedure seeking permission to video and audio record the defendant’s examination for discovery and to tender the recordings as evidence at trial if the defendant could not attend.

The action arose from historic sexual assaults committed when the defendant was a parish priest and for which he had been criminally convicted.

The court considered the defendant’s age, medical conditions, incarceration status, and the possibility that he might be unavailable or unwilling to attend trial.

It held that videotaping the examination would not cause meaningful prejudice or inconvenience to the defendant and could provide a superior evidentiary record compared to a written transcript.

The court concluded that there was a higher-than-average risk the defendant might not be available at trial and that the trier of fact should not be denied the best available record of the evidence.

The father appealed and the Children's Aid Society cross-appealed a motion judge's decision on a summary judgment motion for Crown Wardship.

The motion judge had found a triable issue regarding the mother but effectively granted summary judgment against the father, limiting his participation at trial.

On appeal, the Superior Court found the motion judge erred in law by failing to properly apply the summary judgment test, instead dismissing the motion to give the mother a 'last chance' to improve her parenting.

The court allowed the Society's cross-appeal, set aside the motion judge's decision, and granted summary judgment for Crown Wardship without access to either parent.

The respondent was successful on appeal and sought costs on a partial indemnity basis in the amount of $9,458.72.

The appellant challenged the amount based on proportionality.

The Divisional Court fixed costs at $6,000 inclusive of disbursements and HST, noting the appeal was not complicated and took half a day to argue.

The accused, charged with historical sexual offences against his stepson and step-grandson, brought an application to sever the counts relating to each complainant.

The Crown opposed the application, arguing it intended to bring a similar fact evidence application.

The court considered the factors for severance, including the risk of reasoning prejudice and the lack of a strong factual or legal nexus between the two sets of allegations separated by 20 years.

Finding minimal benefits to a joint trial and some risk of prejudice, the court granted the application to sever the counts.

Following an application for judicial review involving the interpretation of the Pay Equity Act and the Human Rights Code, the successful respondent sought costs of $47,506.45 on a partial indemnity basis.

The applicant argued for a lower quantum of $10,000 based on expectations in the labour relations community.

The Divisional Court found the respondent's request exceeded reasonable expectations but acknowledged the importance of the case, awarding costs to the respondent in the amount of $20,000 inclusive of HST and disbursements.

The accused brought a motion seeking the trial judge’s recusal on the basis of a reasonable apprehension of bias.

The allegations included courtroom conduct, delay in issuing a written endorsement, the judge’s prior ruling on a motion under s. 140 of the Courts of Justice Act, and an out‑of‑court inquiry involving another judicial officer.

Applying the established test for reasonable apprehension of bias, the court emphasized the presumption of judicial impartiality and the requirement for cogent evidence demonstrating partiality.

After reviewing the context of the proceedings and each allegation, the court found that none of the incidents would lead a reasonable and informed observer to conclude that the judge could not decide the matter fairly.

The motion for recusal was therefore dismissed.

Following the dismissal of the appeal, the parties made written submissions on costs.

The respondent sought costs on a full indemnity basis, which the court rejected, awarding partial indemnity costs of $6,209.88.

Both parties also sought costs for the earlier motion for leave to appeal, on which the appellants had been successful.

The court found that due to divided success between the leave motion and the appeal, no costs should be awarded for the leave motion.

The accused brought a motion seeking the trial judge’s recusal on the basis of alleged bias in ongoing criminal proceedings.

The court dismissed the recusal motion and delivered written reasons.

The endorsement also addressed procedural issues including a Crown motion under s. 486.3(4) of the Criminal Code to appoint counsel to cross-examine the complainant, directions regarding disclosure of electronic evidence, and scheduling of related motions.

The court provided directions to resolve technical issues with the accused’s access to digital disclosure and set timelines for further materials and assignment court scheduling.

A surviving spouse brought a motion for an extension of time to file an election under s. 6(1) of the Family Law Act and sought directions regarding whether a pre‑retirement death benefit payable from a pension plan to the deceased spouse’s estate should be included in the deceased’s net family property.

The parties disputed whether the spouses were separated at the time of death, which would determine entitlement to the pension benefit.

The court held that a pre‑retirement death benefit payable to the estate is not an asset owned by the deceased on the valuation date and therefore cannot be included in the deceased’s net family property for equalization purposes.

The request for directions on including the benefit in the estate’s NFP was refused.

However, the court granted a 90‑day extension for the surviving spouse to file her election under the Family Law Act.

The parties, unmarried parents of a four-year-old son with a complex feeding disorder, disputed custody, access, child support, and spousal support.

The mother sought sole custody and supervised access, arguing the father could not properly care for the child's special needs.

The court ordered joint custody with unsupervised access, finding both parents capable and loving, though granting the mother final decision-making on health matters.

The father, a professional online gambler with highly fluctuating income, was imputed a minimum income of $60,000 for child support purposes, with additional support payable on income up to $150,000.

The mother's claim for spousal support was dismissed as the court found the parties never cohabited in a relationship of some permanence and were therefore not spouses under the Family Law Act.

The applicants sought judicial review of two decisions of the Pay Equity Hearings Tribunal.

The Tribunal had dismissed applications by the unions to eliminate different rates of progression through the wage grids of comparable male and female job classes, holding that the Pay Equity Act does not require the harmonization of wage grids.

The Tribunal also rejected the argument that its interpretation of the Act authorized a contravention of the Human Rights Code.

The Divisional Court dismissed the applications for judicial review, finding that the Tribunal's decisions were reasonable and that the Pay Equity Act does not require or authorize a contravention of the Human Rights Code.

Following the dismissal of an application that was found to be without merit, the applicant and the respondent union both sought costs.

The Divisional Court dismissed the applicant's claim for costs, noting the usual rule that costs follow the event.

The respondent union was awarded costs fixed at $12,000, payable by the applicant.

The appellant, an internationally trained teacher from France, appealed the refusal of the Ontario College of Teachers Accreditation Committee to grant her a certificate of qualification.

The Committee found she met the linguistic and degree requirements but concluded her distance education program did not meet the professional education requirement.

The Divisional Court found the Committee's decision unreasonable because it focused on extraneous factors, such as the program being online and not granting a diploma, rather than assessing whether the program was substantially different from an accredited Ontario program.

The appeal was allowed and the matter remitted to the Committee for reassessment.

In a motor vehicle action brought by a bankrupt plaintiff, the defendant moved for a declaration that a claim for loss of future income constituted property that vested in the trustee in bankruptcy under the Bankruptcy and Insolvency Act.

The court considered conflicting authorities regarding whether damages for future income loss should be characterized as property or as income for the purposes of the Act.

Adopting the reasoning in Re Conforti, the court held that damages for future income loss are properly treated as income rather than property.

Accordingly, the claim forms part of the bankrupt’s total income under s. 68(2) of the Act rather than vesting in the trustee as property.

The appellant appealed a decision of the License Appeal Tribunal (LAT) denying him an extension of time to request a hearing regarding the Registrar's proposal to revoke his motor vehicle dealer registration.

The appellant had missed the 15-day deadline by three days.

The Divisional Court applied the reasonableness standard of review and upheld the LAT's decision, finding that the LAT reasonably applied the Frey v. Macdonald factors, including the lack of a bona fide intention to appeal within the time limit, the absence of a reasonable explanation for the delay, and the lack of merit to the appeal.