Phillip W. Sutherland

The defendant, A.C., brought an application challenging the constitutionality of subsections 278.94(2) and 278.94(3) of the Criminal Code, arguing they violated sections 7 and 11(d) of the Charter of Rights and Freedoms.

The challenge asserted infringements on the right to a fair trial, against self-incrimination, and prosecutorial independence due to the complainant's right to appear and make submissions at admissibility hearings for sexual activity evidence.

The court applied the Mills/Darrach approach for constitutional challenges to legislation and dismissed the application, finding no Charter breach.

The court clarified that the complainant's involvement is limited to providing perspective on the admissibility of evidence, combating myths and stereotypes, and does not transform the complainant into a second prosecutor or infringe on the accused's fundamental rights.

The Crown brought an application to admit evidence of the defendant's prior discreditable conduct towards the complainant in a sexual assault trial.

The proposed evidence included incidents of shirt-pulling, urinating on the complainant, and taking non-consensual photos.

The court applied the probative value versus prejudicial effect test, finding that evidence must have a "real connection" to the charges.

The application was partially granted, allowing admission of two specific shirt-pulling incidents and the non-consensual photo-taking, as these demonstrated motive or animus and disrespect for the complainant's sexual integrity.

Other general shirt-pulling incidents and the urinating incidents were denied due to insufficient probative value and high prejudicial effect.

The plaintiffs and defendant entered into an unconditional agreement of purchase and sale for a residential property.

The defendant failed to close, claiming she could not obtain financing because she was unable to sell her existing home following a provincial government policy announcement that cooled the real estate market.

The defendant argued the contract was frustrated or contained an implied financing condition.

The court granted summary judgment to the plaintiffs, finding that a market decline is not an unforeseeable supervening event that radically changes the contractual obligation, and the entire agreement clause precluded any implied terms.

The plaintiffs were awarded $623,733.05 in damages for the difference in resale price and carrying costs.

The court rendered a costs decision following a successful motion by the defendant to terminate a temporary injunction.

The defendant sought substantial indemnity costs, while the plaintiff argued for costs in the cause or on an actual indemnity basis.

The court found the defendant to be the successful party and awarded costs on a partial indemnity basis, rejecting the defendant's request for substantial indemnity due to over-resourcing and animosity in submissions.

The court also declined to award costs personally against the plaintiff's counsel, finding their conduct did not meet the high threshold for such an order.

Costs were fixed at $17,263.01, payable by the plaintiff to the defendant within 30 days.

The defendant sought summary judgment to dismiss the plaintiff's action, arguing it was statutorily barred by limitation periods and that the plaintiff failed to comply with policy timelines for notice and proof of claim.

The plaintiff opposed, asserting the action was timely based on discoverability and seeking relief from forfeiture for any non-compliance.

The court dismissed the defendant's motion, finding the evidentiary record insufficient to make definitive factual determinations regarding the date of discoverability of the disability benefits or whether relief from forfeiture should be granted.

The dismissal was without prejudice to the defendant to raise limitation period arguments at trial.

The appellant appealed an order of the Licence Appeal Tribunal directing the revocation of its liquor licence.

The revocation was based on findings that the appellant permitted a patron to remove alcohol, permitted unlawful gambling, and that the manager obstructed and assaulted an inspector.

The Divisional Court dismissed the appeal, finding no error of law in the Tribunal's assessment of the evidence or its application of the test under s. 6(2)(d) of the Liquor Licence Act.

The appellant, a 50% shareholder in a corporation, brought an oppression application against his brother, the other 50% shareholder, regarding the sale and lease-back of the corporation's real estate.

The appellant appealed two motion decisions: one dismissing his claim for a certificate of pending litigation (CPL) and another denying an injunction to halt the sale.

The Divisional Court dismissed both appeals, finding that the shareholder dispute did not give rise to an interest in land to support a CPL, and that the motions judge made no palpable and overriding error in applying the RJR-MacDonald test to deny the injunction.

The court noted the purchaser could rely on the indoor management rule and the appellant's claim was readily quantifiable in damages.

The plaintiff brought a motion to set aside an order of a single judge of the Divisional Court, who had refused to quash the defendant's appeal of an order dismissing a motion to discharge construction liens.

The panel held that the original order dismissing the motion to discharge the liens was interlocutory, not final, because it did not finally determine the validity of the liens, which remained an issue for trial.

The motion was granted, the single judge's order was set aside, and the appeal was quashed.

The applicant insurer sought judicial review of a decision by a delegate of the Financial Services Commission of Ontario, which upheld an arbitrator's ruling that the respondent insured's claim for income replacement benefits was not statute-barred.

The insurer conceded that its notice of denial did not meet the strict requirements set out in Smith v. Co-operators General Insurance Company, but argued that the delegate should have applied a contextual approach rather than a bright-line test.

The Divisional Court dismissed the application, finding that the delegate reasonably applied the bright-line test from Smith.

The court noted that the Court of Appeal in Golic confirmed that the analysis must focus on the notice itself, precluding consideration of outside circumstances to relieve an insurer of its obligation to provide proper notice.

The plaintiff sought to continue a temporary injunction preventing the defendant from restricting access to a water well on the defendant's property, which supplied water to the plaintiff's adjacent property.

The defendant brought a cross-motion to prohibit the plaintiff's entry, declare no easement right, and set aside the injunction.

The court applied the RJR MacDonald and R. v. CBC tests for injunctions, specifically focusing on the "strong prima facie case" criterion.

The court found that the plaintiff failed to demonstrate a strong prima facie case for an implied easement of accommodation or an easement based on common intention, primarily because the requested easement would require positive acts of maintenance and expense from the defendant, which cannot form the subject matter of an easement without privity of contract.

Consequently, the temporary injunction was terminated.

The applicant, Mayor Justin Altmann, sought to quash parts of a by-law passed by the Town of Whitchurch-Stouffville, arguing they were ultra vires and beyond Council's authority under the Municipal Act.

The by-law imposed sanctions on the Mayor for failing to issue an apology as previously directed by Council, following an Integrity Commissioner's report on harassment complaints.

The court found that certain terms of the by-law, which restricted the Mayor's communication with staff and access to municipal facilities, constituted unauthorized penalties not permitted by the Municipal Act or the Town's Code of Conduct.

Consequently, these "offending terms" were declared ultra vires and quashed.

The plaintiff brought a motion to substitute Zachary M. Taylor for the defendant John Doe and to add TD Insurance Meloch Monnex a.k.a.

Primmum Insurance Company as a named defendant, seeking leave to amend the statement of claim.

Primmum opposed being added, arguing the limitation period had expired under the Limitations Act, 2002.

The court granted the unopposed substitution of Zachary M. Taylor.

Regarding Primmum, the court applied the discovery rule for claims against insurers, holding that the limitation period for adding an insurer under OAP 1 coverage commences the day after the plaintiff makes a demand for coverage, not at the time of the accident or the initial statement of claim.

Finding that the plaintiff had put Primmum on notice, the court determined the limitation period had not expired.

The motion to add Primmum and amend the claim was granted, and costs were awarded to the plaintiff.

The defendants brought motions for summary judgment to dismiss the plaintiffs' action, the third party actions, and all counterclaims and crossclaims arising from a 2007 motor vehicle accident.

The plaintiffs did not oppose the dismissal of their action.

A third party opposed the dismissal of her counterclaim and crossclaim for contribution and indemnity.

The court held that because the main action was being dismissed, the third party's claims for contribution and indemnity had no basis in law and could not survive.

The motions were granted and all claims were dismissed.

During a jury trial, the plaintiff brought a motion under Rule 52.10 of the Rules of Civil Procedure to allow the jury to determine if past and future care costs were warranted, despite having called no evidence on these issues.

The plaintiff proposed that if the jury found such costs warranted, the quantum could be determined later by a judge.

The court dismissed the motion, finding that the plaintiff failed to exercise reasonable diligence in obtaining the necessary expert evidence before trial.

The court also held that bifurcating the issue would improperly remove the determination of the extent and quantum of future care costs from the jury.

The applicants, acting as attorneys for Malzina Lozzi, sought an order to transfer title of a property from the respondent, who held it as a bare trustee, back to Malzina.

The respondent, also an attorney for Malzina, opposed the transfer, citing Malzina's original intention for estate tax planning and concerns about the applicants.

The court dismissed the application, finding that Malzina's intention for the respondent to remain the bare trustee was clear and that the applicants failed to demonstrate that transferring the property back was in Malzina's best interest.

The plaintiff brought a motion for leave to file an income loss report served less than 90 days before trial, contrary to Rule 53.03 of the Rules of Civil Procedure.

The defendant opposed the motion, arguing that the plaintiff had ample time to prepare the report over the 8-year history of the action.

The court held that 'undue delay' under Rule 53.08 refers to delay in the conduct of the trial, not the time taken to bring the matter to trial.

Since the defendant did not request an adjournment and there was no prejudice, the court granted the plaintiff leave to file the report.

The plaintiff, a former municipal councillor, brought a motion for summary judgment to quash a municipal by-law that authorized the deduction of postage expenses from his severance pay.

The court found that the municipality lacked the statutory authority to enact a by-law directed specifically at recovering an expense from a single individual's severance pay.

The court concluded that the municipality acted unreasonably, arbitrarily, and in bad faith.

The by-law was declared illegal and quashed.

The defendant, having been convicted of dangerous driving causing death, brought an application under section 11(b) of the Charter seeking a stay of proceedings due to unreasonable delay.

The court found that the defendant had explicitly waived his section 11(b) rights regarding pre-trial delay during a judicial pretrial.

Furthermore, the court held that the presumptive ceiling established in Jordan applies from charge to verdict, not to the sentencing phase, which remains governed by MacDougall.

The net delay of 27 months and 21 days fell below the 30-month ceiling, and the defence failed to demonstrate that the delay was otherwise unreasonable.

The application was dismissed.

The Crown brought an application to admit the video statements of two accused, Vickerson and Fairbarn, obtained during a large-scale fraud and drug trafficking investigation.

Fairbarn also applied to exclude her statements under ss. 10(a) and 10(b) of the Charter.

The court found Vickerson's statements were voluntary and admissible, as he was properly advised of his rights, spoke to duty counsel, and chose to answer questions.

However, the court found Fairbarn's statements were not voluntary due to a combination of factors, including an unrecorded conversation with a detective who allegedly offered inducements, and a failure to fully advise her of her jeopardy regarding the trafficking investigation.

Fairbarn's statements were excluded.

The Personal Insurance Company brought a summary judgment motion seeking a declaration that Linda-Sue Pearce was the owner of a truck involved in a motor vehicle collision, and an order dismissing the action against Personal.

The court found that Pearce, as the registered owner, failed to rebut the presumption of ownership, despite arguments that her son, Trevor James Middleton, was the true owner.

The court granted the declaration that Pearce was an owner of the truck and dismissed the action against Personal, as Pearce's own insurance policy with Wawanesa Insurance would apply.