Patricia C. Hennessy

The defendant Civita Vitiello brought a motion for summary judgment, arguing the plaintiff's claim was statute-barred due to the expiration of the limitation period.

The central issue was discoverability, specifically when the plaintiff, Marie Leblanc, discovered or ought to have discovered her claim against Civita Vitiello.

The court found that Marie Leblanc had sufficient knowledge or suspicion of Civita Vitiello's involvement by December 2010, and her son's 2014 disclosure did not constitute new information to trigger a fresh limitation period.

The plaintiff failed to demonstrate reasonable diligence in pursuing her claim.

Consequently, the action was dismissed as statute-barred.

The plaintiff accounting firm brought an action to recover unpaid professional fees for work performed for the defendants (a numbered company operating a resort lodge and its sole shareholders) in 2012 and 2013.

The defendants asserted a fixed-rate agreement but failed to present any evidence to support this claim.

The court accepted the plaintiff's evidence, which included signed engagement letters and regular invoices, establishing that work was billed at standard hourly rates.

The court found the plaintiff had proven its claim for $44,052.72, with the individual defendants personally liable for $34,939.21 of that amount based on a specific engagement letter.

Additionally, a motion for recusal brought by one of the defendants at the outset of trial, based on the judge's prior stay at the lodge and presiding over an unrelated motion, was dismissed as there was no perceived partiality or link to the current case.

The minor plaintiff, Bayden Zachary Azzeh, brought a motion to add the City of Greater Sudbury and other parties as defendants in an action for traumatic brain injuries sustained in a 2007 motor vehicle accident.

The City opposed, arguing prejudice due to late addition, an expired limitation period, and failure to meet the Municipal Act's ten-day notice requirement.

The court found no uncompensable prejudice to the City, determined the limitation period for the minor did not run until a litigation guardian was appointed (June 2014 at earliest), and accepted that being an infant constituted a reasonable excuse for the initial lack of municipal notice.

The court further found that the subsequent litigation guardian provided notice within ten days of her appointment.

The motion to add the City as a defendant was granted, and other parties were added by consent, with the order made nunc pro tunc.

The Crown brought applications to quash subpoenas issued by the defence against two prosecutors, David Holmes (federal) and Steven Scharger (provincial).

The defence sought to compel their testimony at a preliminary hearing regarding an officer's alleged history of misconduct and excessive force, arguing it was material to the officer's credibility and the accused's ability to make full answer and defence.

The court found that the proposed evidence was not likely material to the preliminary hearing issues, was governed by the collateral fact rule, and that the necessity test for compelling counsel's testimony was not met.

The applications to quash the subpoenas were granted.

The plaintiffs sought leave to appeal an interlocutory order that allowed them to amend their statement of claim to increase damages from $550,000 to $2,500,000, exposing the defendants personally beyond their $1 million insurance policy limits.

The motion judge granted the amendment but imposed terms, including suspending prejudgment interest on the increased amount until the date of the amendment.

The plaintiffs argued this term was punitive and conflicted with existing case law.

The Superior Court of Justice dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's exercise of discretion to compensate the defendants for the prejudice caused by the late amendment.

The applicant, Dirk Plate, sought an order to be tried separately from his co-accused, Paul Caron, on charges of fraud and theft arising from an alleged $20 million kickback scheme.

The Crown alleged a common criminal enterprise, invoking the Carter rule for the admissibility of evidence.

The court balanced the factors under the interests of justice test, including the truth-seeking function, judicial economy, and potential prejudice.

The court found that a joint trial was the best way to assess witness credibility and avoid inconsistent findings, and that the applicant failed to demonstrate a real likelihood of injustice if tried jointly.

The application for severance was dismissed.

The accused applied for bail after being charged with first degree murder arising from a group assault that culminated in the fatal stabbing of the deceased by a co‑accused.

The court considered the primary, secondary, and tertiary grounds for detention under s. 515(10) of the Criminal Code.

Although the Crown argued the evidence was overwhelming and that detention was necessary to maintain public confidence, the court found the accused’s role in the fatal act was uncertain and that a strict release plan with multiple sureties, house arrest, and extensive conditions sufficiently mitigated risks.

The proposed sureties were found credible and capable of supervising the accused.

The court concluded detention was not justified and ordered release on stringent conditions.

The applicant sought a declaration that the informal name “Domestic Violence Court” was unconstitutional and should be replaced with “Domestic Court”.

He alleged the name violated ss. 7, 12, and 15 of the Canadian Charter of Rights and Freedoms by stigmatizing accused persons and affecting fairness in criminal proceedings.

The court held the applicant failed to establish any deprivation of security of the person or other Charter rights, noting that subjective feelings of stigma were insufficient without objective evidence of serious psychological harm.

The court also found the name rationally connected to the court’s legitimate purpose of addressing domestic violence cases and rejected claims of cruel and unusual treatment or discrimination.

The application was dismissed.

The plaintiff sued police officers and a police services board alleging negligent investigation, bad faith, and Charter breaches after he was charged with sexual assault and related offences but later acquitted at trial.

He alleged the police relied on an unreliable complainant, fabricated evidence, failed to pursue exculpatory witnesses, and caused reputational harm through media reporting.

Applying the framework from Hill v. Hamilton‑Wentworth Regional Police Services Board, the court held that the officers had reasonable and probable grounds to arrest and charge based on the complainant’s statement, observed injuries, and corroborative circumstances.

The investigation, although imperfect, fell within the bounds of reasonable police discretion.

The court found no evidence of fabrication, bad faith, or Charter violations and dismissed the claim.

The appellant appealed summary conviction findings under the Fisheries Act arising from a highway washout that deposited debris into fish-bearing waters and damaged fish habitat.

The appellant argued the trial judge erred in rejecting a due diligence defence and in concluding that a highway and culvert constituted a “work or undertaking” under the Act, and further argued that the Kienapple principle should bar convictions on both counts.

The court held that the trial judge made no palpable and overriding error in rejecting the due diligence defence and properly applied the relevant factors.

It further held that maintaining road infrastructure constitutes “carrying on a work or undertaking” for the purposes of s. 35 of the Fisheries Act and that the two offences addressed distinct statutory purposes.

The appeal was dismissed.

Following a successful trial, the plaintiff sought substantial indemnity costs after obtaining a judgment exceeding its settlement offer.

The defendant argued that proportionality warranted a reduced costs award.

The court considered the factors under Rule 57 of the Rules of Civil Procedure and the principle of proportionality under Rule 1.04(1).

The court held that the defendant could not rely on proportionality after forcing the plaintiff to prove every aspect of its claim despite an earlier favourable default judgment and an unaccepted settlement offer.

The requested costs were found to be fair and reasonable and were awarded in full.

The accused was charged with sexual assault and invitation to sexual touching involving a child who was between four and six years old at the time of the alleged incidents.

The complainant described three incidents involving fellatio and digital penetration occurring at a park, a bedroom, and a bathroom while the accused lived with her mother.

The accused denied the allegations and suggested a third-party suspect, but the court rejected that theory after reviewing the evidence.

Applying the credibility framework in R. v. W.(D), the court found the accused’s evidence inconsistent and implausible and accepted the complainant’s testimony as credible and reliable.

The court concluded beyond a reasonable doubt that the accused committed the offences.

Following a successful application declaring that an insurer owed a duty to defend, the applicant sought costs of $23,228.50 on a substantial indemnity basis.

The respondent did not dispute the applicant’s responsibility to fund its own defence but challenged the number of hours claimed.

The court considered the principles governing costs under Rule 57 and the Court of Appeal guidance emphasizing fairness and reasonableness rather than full indemnification.

The court found some duplication of effort and reduced the claimed amount.

Costs were fixed at $20,000 inclusive of HST plus disbursements.

The applicant sought a declaration that the respondent insurer owed it a duty to defend and indemnify in a slip-and-fall action brought by customers allegedly injured in the applicant’s store.

The applicant had been named as an additional insured under a contractor’s commercial general liability policy covering janitorial operations.

The insurer refused to defend, arguing the pleadings alleged independent negligence by the occupier and that issue estoppel applied because earlier litigation had rejected contractual indemnity claims against the contractor.

The court held that issue estoppel did not apply because the earlier proceedings addressed contractual indemnity rather than the insurer’s duty to defend.

Applying the pleadings rule, the court concluded the factual allegations potentially fell within policy coverage because the incident arose from janitorial operations, thereby triggering the duty to defend.

The insurer was ordered to indemnify the applicant for defence costs incurred in the underlying action.

The accused brought a Charter motion seeking exclusion of drug evidence seized during a warrantless vehicle search following his arrest for drug trafficking.

The defence argued that late disclosure of additional confidential informant tips undermined police credibility and that the Crown had failed to establish reasonable and probable grounds for arrest.

The court held that although disclosure had been late and piecemeal, any prejudice was cured by an adjournment and there was no evidence of bad faith.

Applying the test in Debot for informant-based police action, the court found the confidential source reliable and the information sufficiently corroborated through police investigation.

The court concluded that police had reasonable and probable grounds to arrest and that the search incident to arrest was lawful.

The accused was charged with sexual assault and sexual interference involving a three‑year‑old child in a campground washroom.

The Crown relied primarily on the child’s out‑of‑court statements alleging touching of the penis and buttocks.

The accused admitted touching the child’s buttocks briefly but denied touching the penis or acting for a sexual purpose, asserting he had intended to help the child with his pyjamas.

Applying the credibility analysis in R. v. W. (D.), the court found significant risk that the child’s statements were influenced by parental reactions and concluded the Crown failed to prove beyond a reasonable doubt that the touching was sexual in nature or for a sexual purpose.

The accused was acquitted of sexual assault and sexual interference but convicted of the included offence of common assault for the non‑consensual touching.

The father appealed a child protection order declaring the child a Crown ward with no access and sought placement of the child with proposed caregivers under a supervision order.

The appellant argued that the trial judge misapprehended evidence regarding the caregivers’ ability to care for the child and erred in concluding that continued parental access was not in the child’s best interests.

Applying the standards of correctness and palpable and overriding error, the court found ample evidence supporting the trial judge’s findings, including concerns about the proposed caregiver’s health, past parenting difficulties, and the risks associated with parental access.

The trial judge properly weighed the competing placement proposals and emphasized the importance of permanency for a child who had been in care since birth.

The appeal was dismissed.

The accused brought a motion seeking a stay of proceedings for alleged breaches of s. 7 of the Charter arising from late disclosure and alleged refusal to provide information relating to a proposed third-party suspect.

The late disclosure involved photographs and notes that had not been transmitted through the police forensic database to the Crown and defence due to an inadvertent failure in the evidence transfer process.

The court held that late disclosure alone does not establish a Charter breach and that the accused must demonstrate prejudice affecting the ability to make full answer and defence.

As no prejudice or abuse of process was proven and the requested investigative material relating to a third party was speculative and unsupported by evidence, the court found no violation of s. 7.

The motion for a stay of proceedings was dismissed.

The responding spouse moved for a final order enforcing a settlement allegedly reached through correspondence between counsel resolving multiple family law issues including spousal support, property division, and possession of the matrimonial home.

The applicant spouse argued that the draft Minutes of Settlement should also include a term requiring the respondent to designate her as an irrevocable beneficiary under his group life insurance policy.

The court held that the correspondence exchanged between counsel constituted a complete and binding settlement agreement as of March 25, 2013, and that the life insurance term had never been negotiated or agreed upon.

The court rejected the attempt to insert additional terms into the settlement and held that it lacked authority under s. 34 of the Family Law Act to add such a provision to the final order.

The settlement was therefore enforced as reflected in the correspondence, excluding the life insurance requirement.

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.