Patrick Smith

The accused brought a pre‑trial motion to exclude evidence consisting of oxycodone tablets discovered during a search of checked luggage at an airport.

The court found that the accused had a reasonable expectation of privacy in checked luggage notwithstanding airport security screening regimes.

The physical search of the bag by CATSA personnel and police was not authorized by law, the accused was psychologically detained without being informed of his right to counsel, and the decision to conduct the physical search was influenced by racial profiling.

Applying the test under s. 24(2) of the Charter, the court held that admission of the evidence would bring the administration of justice into disrepute.

The evidence was excluded.

A systems integration contractor sued an electrical subcontractor for breach of contract on two correctional facility projects involving integrated security systems.

The dispute concerned the scope of work, including responsibility for supplying and installing wiring and terminating field devices.

The court found the subcontractor breached the contracts by refusing to perform required work and drew an adverse inference due to spoliation of electronic evidence and fabricated quotes.

The subcontractor’s counterclaim for unpaid work was dismissed.

The court also held the company’s principal personally liable for breach of the statutory trust under the Construction Lien Act but declined to declare the debt non‑dischargeable in bankruptcy.

The moving party father brought a motion seeking rescission of long-standing child support arrears and asserting that he had overpaid child support.

The responding party mother opposed the motion and sought a retroactive order requiring payment of a share of section 7 extraordinary expenses.

The court found that the father had repeatedly failed to comply with earlier support orders, had avoided enforcement by changing employment, and had failed to disclose income or provide tax documentation.

The court was not satisfied that the arrears should be rescinded and found no evidence of overpayment.

The mother’s request for retroactive section 7 expenses was also dismissed for lack of supporting evidence.

In a personal injury action arising from a motor vehicle accident, the plaintiffs sought an order under Rule 30.10 of the Rules of Civil Procedure requiring a non-party medical assessment company to produce its complete files relating to defence medical examinations.

The plaintiffs alleged that partial productions suggested the company may have reviewed or revised draft expert reports prepared for the defendants.

The court applied the two‑part Rule 30.10 test of relevance and trial fairness, emphasizing concerns about the independence and integrity of expert witnesses.

Finding that the requested documents could reveal whether third‑party influence affected expert reports and that the materials were unavailable from other sources, the court concluded that production was necessary for trial fairness.

Leave to bring the motion was granted and the non‑party was ordered to produce the complete files.

In an estate accounting dispute, a residual beneficiary sought disclosure of legal accounts issued by the estate solicitor to the estate trustee, alleging possible double billing to both the trustee personally and the estate.

The estate trustee resisted production on the basis of solicitor‑client privilege.

The court held that communications between an estate trustee and solicitor regarding administration and distribution of the estate are not privileged as against beneficiaries due to the “joint interest” principle.

Because the documents related to estate administration rather than personal protection of the trustee against claims, privilege did not apply.

The court ordered production of the legal fee documents and noted that, if discovery were necessary, the trustee could be examined by written questions due to medical limitations.

In a motor vehicle accident damages trial where liability was admitted, the court conducted a voir dire to determine the admissibility of surveillance video evidence of the plaintiff.

The defendant sought to use the video under Rule 30.09 of the Rules of Civil Procedure to impeach the plaintiff’s credibility regarding the extent of her physical limitations.

Applying the principles from Landolfi v. Fargione, the court held that evidence tendered solely for impeachment must be relevant to credibility on a material issue and its probative value must outweigh its prejudicial effect.

The surveillance showing the plaintiff performing daily activities was relevant to credibility and its probative value, while modest, was not trifling.

The court ruled the videos admissible solely for impeachment purposes, with a limiting instruction to the jury.

The applicant sought an order clarifying and quantifying child support obligations under a prior consent order so that the Family Responsibility Office could enforce the support provisions.

The respondent argued that changes in his employment and income after moving provinces justified recalculating support based on fluctuating earnings.

The court held that the issue before it was not a variation application and that the consent order’s adjustment mechanisms must be enforced as written.

The court issued an order implementing several provisions of the applicant’s draft order to clarify the calculation of periodic child support and section 7 expenses.

However, the court declined to make prospective orders regarding future section 7 expenses such as orthodontia, summer camp, and piano lessons due to the speculative nature of those costs.

The appellant appealed convictions for impaired driving and refusal to provide a breath sample following a trial in which he was acquitted of leaving the scene of an accident.

He argued that the trial judge misapplied the W.(D.) credibility test, provided insufficient reasons, misapprehended evidence, and demonstrated bias.

The court held that the trial judge was entitled to reject the appellant’s testimony as unreliable and that ample evidence supported findings of impairment and refusal.

Minor misapprehensions of evidence were found to be immaterial and did not result in a miscarriage of justice.

The appellate court concluded that the verdicts were reasonable and supported by the evidence.

In a high-conflict custody and access dispute, both parents sought interim sole custody of their child, who had special needs associated with the autism spectrum.

The court considered an expert custody and access assessment recommending that one parent be granted final decision-making authority due to the parties’ extreme conflict and inability to communicate.

The court concluded that joint custody would expose the child to ongoing parental conflict and was not feasible.

Interim sole custody was granted to the mother, with a week‑on/week‑off parenting schedule designed to minimize contact between the parties.

The court also imputed income to the father due to inadequate financial disclosure and ordered interim child support.

Following a successful motion dismissing all claims against one defendant in a civil action alleging negligence, fraud, and conspiracy, the court addressed the issue of costs.

The unsuccessful plaintiff argued that no costs should be awarded due to financial hardship.

Applying s. 131 of the Courts of Justice Act and relevant cost considerations, the court found that the defendant had been completely successful and was entitled to costs.

The court also considered the seriousness of the allegations and the lack of merit in the plaintiff’s claim.

A lump sum costs award of $10,000 was ordered payable forthwith.

The applicant spouse brought a motion seeking interim spousal support, occupation rent for the matrimonial home, and an order for the sale of the matrimonial home.

The court declined to grant interim relief, noting the matter was already scheduled for trial within two months and that the requested orders would require credibility findings and fuller financial disclosure.

The court held that issues relating to occupation rent, ownership interests, equalization, and entitlement to spousal support should be determined by the trial judge after a full evidentiary hearing.

Concerns also existed regarding incomplete financial disclosure and the respondent’s ongoing payment of household and child-related expenses.

The motion was dismissed with costs reserved to the trial judge.

The moving party brought a motion to vary prior orders respecting child support and spousal support following divorce.

The court considered whether there had been a material change in circumstances since the earlier orders, including the recipient’s medical expenses, ongoing financial assistance from family, and the payor’s bankruptcy.

The court found the payor’s income for the relevant year and held that the table amount of child support under the Ontario Child Support Guidelines should apply.

The child support obligation was increased and the spousal support obligation reduced but not to the minimal level sought by the moving party.

The court declined to award costs despite the moving party’s limited success.

The applicant sought urgent judicial review of a government decision denying funding under the Second Career program for a proposed Master’s degree in public administration.

The respondent argued the matter was not urgent and that the decision was neither reviewable nor unreasonable.

The court held that the applicant failed to demonstrate that proceeding in the Divisional Court would cause a failure of justice as required under s. 6(2) of the Judicial Review Procedure Act.

The court further found that the government program was a discretionary public funding initiative not subject to judicial review absent a Charter or fundamental rights violation.

The application was dismissed.

During a scheduled motion hearing, the plaintiffs sought an adjournment and additional procedural orders, including the examination of corporate legal counsel whose affidavit was attached to another affiant’s evidence and permission to communicate verbally with a former lawyer involved in the matter.

The defendants did not oppose the adjournment but objected to the additional requests.

The court adjourned the motion and imposed a timetable for cross-examinations and filings during the adjournment period.

The court declined to order the requested examination of the corporate counsel, finding the examination of the primary affiant sufficient.

Due to concerns about prior abusive voicemail communications, the court ordered that all communications with specified individuals occur only in writing.

The plaintiff brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking production of the Crown brief and police investigation file from a criminal prosecution arising from a motor vehicle accident that caused the death of the plaintiff’s father.

Liability for the accident had been admitted, but damages remained in dispute.

The plaintiff argued the materials were relevant to aggravating circumstances affecting psychological injury damages, including allegations the defendant was texting while driving.

Applying the third‑party production test and factors articulated by the Court of Appeal, the court held the requested materials were reasonably likely to contain information probative of damages and that it would be unfair to require the plaintiff to proceed without access to them.

Given the Crown’s consent and the potential evidentiary relevance, production was ordered.

The responding party brought a motion to vary and set aside a prior court order that had been based on a separation agreement.

The court found that the agreement had been drafted by the other party and signed without legal advice or proper financial disclosure, and in circumstances involving coercion and safety concerns.

Considering the brief and tumultuous relationship, the short period of cohabitation, and the support already paid, the court concluded that continued enforcement of the agreement was not warranted.

The prior order was terminated retroactively, arrears were rescinded, and enforcement through the Family Responsibility Office was stayed.

The self-represented plaintiff brought a motion for judgment after noting the defendant in default for failing to file a statement of defence in time.

The statement of claim sought $15,000 in general damages, loss of income, or loss of competitive advantage.

The court held that there was insufficient evidence to substantiate the damages claimed.

The motion for judgment was denied, but the plaintiff was granted leave to obtain a date for an assessment of damages.

The appellant appealed a summary conviction for assault contrary to s. 266 of the Criminal Code arising from allegations that he struck his spouse while driving.

The appellant argued the verdict was unreasonable, that the trial judge improperly dismissed defence evidence, misapprehended evidence, and failed to provide coherent reasons.

The court held that credibility determinations are primarily matters for the trier of fact and found no error in law or manifest error in the appreciation of the evidence.

Independent eyewitness testimony and corroborative observations by police supported the conviction.

The court concluded that the verdict was reasonably supported by the evidence and that the trial judge’s reasons were sufficient for appellate review.

Following a settlement conference in a civil action, the court addressed the readiness of the matter for trial and concerns about the refusal of a non-party insurer to participate in settlement negotiations.

The court observed that the insurer’s absence from negotiations created a significant impediment to resolution and left the plaintiffs facing trial risks and costs.

The judge strongly urged the insurer to participate in negotiations and warned that cost sanctions might apply if it failed to do so.

The matter was confirmed as ready for trial with two weeks of trial time required.

On a voir dire in a prosecution involving allegations of voyeurism and child pornography relating to the surreptitious filming of a minor in her bedroom, the accused challenged the admissibility of his statement and evidence obtained from a video camera and a household computer.

The defence argued that the statement was involuntary and that multiple Charter breaches occurred under ss. 7, 8, 9, 10(a), and 10(b), including alleged inducement, improper detention, and unlawful searches and seizures.

The court found the statement voluntary under the framework in R v Oickle and concluded the accused had been properly informed of his rights and given an opportunity to consult counsel.

It further held that the initial cursory examination of the camera and its seizure were justified as part of confirming the offence and as incident to arrest, that the computer was seized with valid consent from residents of the home, and that subsequent searches were authorized by valid warrants.

The court determined that no Charter breaches occurred and ruled that the evidence and statement were admissible at trial.