Pierre E. Roger

The court dismissed the Defendants’ motion to adjourn the pretrial and trial, finding that the issues before the Divisional Court and those to be resolved at trial were not the same.

The trial would resolve the equitable ownership issue, and proceeding as scheduled would be fair and just.

The court also awarded costs to the Plaintiffs on a partial indemnity basis, finding the motion unnecessary and not required to be decided before trial.

The defendant, Jama Saban, brought a motion for summary judgment, arguing there was no genuine issue requiring a trial on the issue of liability for a motor vehicle accident involving the plaintiff, Micheal Nelson.

The court reviewed dashcam evidence and affidavits from both parties.

The court found that while the plaintiff rear-ended the defendant, there was evidence that the defendant may have stopped unnecessarily and without checking his rearview mirror, potentially contributing to the accident.

As a result, the court held that there was a genuine issue requiring a trial on liability and dismissed the defendant’s motion for summary judgment.

Costs were awarded to the plaintiff.

The Family Responsibility Office sought a warrant of committal against Orrett Fagan for non-payment of child support arrears and ongoing support, pursuant to a default order.

Fagan cross-moved to set aside or vary the default order, citing health issues and reduced income.

The court considered the factors for setting aside a default order under Rule 25(19) of the Family Law Rules, finding Fagan had an arguable defence but had not acted promptly and had a history of non-compliance.

The court suspended the committal order pending further proceedings, set new payment terms, and provided for future review and possible committal if Fagan failed to comply.

The court dismissed the applicant's motion to strike the respondent's pleadings and for other relief, finding such an order would be disproportionate given the circumstances.

While there was imperfect and late compliance with court orders, new counsel had recently produced substantial disclosure, and most outstanding disclosure was sufficiently explained.

The court ordered costs of $3,000 payable by the respondent to the applicant and made procedural orders to streamline the matter toward resolution or trial.

The decision addresses procedural issues arising at the start of a wrongful dismissal trial under the simplified procedure.

The plaintiff sought relief regarding the admissibility of certain documents produced late by the defendant and guidance on trial management.

The court held that a redacted settlement letter could be admitted due to a compelling public interest, but excluded other late-produced documents for lack of explanation.

The court also clarified the treatment of discovery transcripts and trial affidavits, and allowed an amendment to the Statement of Claim on consent.

The plaintiff, Shawn Balla, brought a motion to lift the stay of his action imposed by section 17 of the Crown Liability and Proceedings Act.

The motion was heard on January 7, 2025.

The court found that Balla met the test for leave under subsection 17(7) of the Act, establishing both good faith and a reasonable possibility of success in his claim of bad faith against certain defendants.

The court granted leave against those defendants who wrote "responsive" on the Health Care Observation Forms, allowing the action to proceed against them, and provided directions for further disclosure and amendment of the statement of claim.

Following a judge-alone criminal trial involving allegations of grooming, repeated sexual abuse of two child complainants, and child pornography offences, the court rejected the accused’s testimony as illogical, evasive, and inconsistent with the surrounding evidence.

Applying the W. (D.) framework and relying on corroborative text messages, forensic device evidence, sex toys containing DNA that could not exclude the complainant, and credible child-witness evidence, the court found the Crown proved the sexual offences beyond a reasonable doubt.

The court also found the digital evidence established the accused made, accessed, and possessed child pornography on multiple devices, rejecting speculation that the material had been placed there by others.

Guilty verdicts were entered on all eight counts.

This ruling addresses a third-party records application brought by the accused in a sexual assault case.

The accused sought disclosure of the complainant's therapist's records and Children's Aid Society (CAS) records.

Applying the two-stage analysis under section 278 of the Criminal Code, the court ordered the therapist's records produced to the court for a Stage 2 review, finding them likely relevant and necessary due to the circumstances surrounding the complainant's memory resurfacing.

However, the CAS records were not ordered produced, as they failed to meet the "likely relevant" threshold at Stage 1, lacking an evidentiary foundation beyond conjecture and having weak probative value compared to the complainant's privacy interests.

The applicants sought to appoint Derek Stanley Metcalfe and Richard Cotnam as estate trustees.

The respondent consented to his own removal but opposed the appointment of Mr. Metcalfe, alleging conflict of interest and bias.

The court found that while there was friction between the parties, it did not rise to a level that would prevent the proper execution of the trust or show a lack of impartiality.

The court appointed the applicants' proposed trustees and awarded partial indemnity costs of $19,600 payable by the respondent personally.

The defendants, Canada School of Public Service et al., brought a motion to set aside a noting of default entered by the self-represented plaintiff, Elsa Joseph.

The plaintiff argued that a 20-day timeline applied under the Rules of Civil Procedure and that the defendants were in contempt for non-compliance with court orders.

The court found that while the Crown Liability and Proceedings Regulations suggested a 30-day timeline, even assuming a 20-day timeline, the interests of justice favored setting aside the default.

The court found the defendants' delay was extremely short (about three days), their reasons for delay reasonable (seeking to finalize the statement of claim content), and that they showed a continued intention to defend the matter.

The court also ordered the matter to case management, finding it a useful tool for this complex action with a self-represented plaintiff who misunderstood the Rules of Civil Procedure.

The plaintiff was ordered to pay $2,500 in partial indemnity costs due to her unreasonable conduct in noting default and refusing to set it aside.

The offender, Justin Cassie-Berube, was sentenced for manslaughter, assault causing bodily harm, and assault related to the death of a five-year-old child, Chloe.

The court found that the offender failed to provide necessities of life and medical attention to Chloe, leading to her death, and had repeatedly abused her.

The sentencing considered aggravating factors such as the victim's vulnerability, breach of trust, and the deliberate failure to seek medical help to avoid legal jeopardy.

Mitigating factors included the offender's lack of criminal record, young age, and mental health issues, though his lack of true remorse limited mitigation.

A global sentence of 14 years imprisonment was imposed, emphasizing denunciation and general deterrence.

The defendant brought a motion seeking an order that the plaintiffs disclose and produce information regarding an adverse costs insurance policy held by their law firm, which could satisfy a costs judgment.

The plaintiffs argued the policy was not disclosable under the Rules of Civil Procedure and was protected by privilege.

The court granted the defendant's motion, ruling that Rules 30.02(3) and 31.06(4) require disclosure of such policies regardless of who holds them, as they may be liable to satisfy a judgment.

The court found prior conflicting decisions unpersuasive and ordered specific disclosure, reserving on the issue of privilege for later determination if the parties could not agree.

The court heard two applications concerning the interpretation of an Asset Purchase Agreement.

The vendor (1000197094 ONTARIO INC.) sought a declaration that Section 3.04 of the agreement constituted an arbitration agreement.

The purchaser (1872488 ONTARIO INC.) argued against this and brought a cross-application seeking disclosure of information related to Work in Progress and Net Earned Revenue valuations, and a determination that the valuation process was not arbitration.

The court found that Section 3.04 was indeed an arbitration agreement, requiring a final and binding determination by an independent accounting firm.

The court also ordered ongoing disclosure of relevant information by both parties regarding Work in Progress and Net Earned Revenue, clarifying that these two items were the subject of the dispute.

The applicant sought a finding that the respondent condominium corporation failed to meet its repair obligations under the Condominium Act, acted oppressively, and sought damages.

A leak in the applicant's unit, originating from a common element mechanical room, remained unrepaired for over two years.

The court found the respondent acted unreasonably in investigating and repairing the leak, causing significant delay.

However, the court dismissed the oppression claim, finding no evidence of unfair conduct or bad faith.

Damages were awarded for the applicant's wasted expenses from being unable to reside in the unit, and full indemnity costs were granted to the applicant based on the interpretation of "costs incurred" under the Condominium Act.

The defendant brought a motion to enforce an alleged settlement agreement reached on December 8, 2023, in a professional negligence action.

The plaintiff opposed, claiming a misunderstanding with his own counsel regarding the scope of settlement authority.

The court applied Rule 49.09 of the Rules of Civil Procedure, finding that an objective review of the correspondence between counsel clearly indicated a mutual intention to create a legally binding contract.

The court held that any misunderstanding was solely between the plaintiff and his lawyers, not between the parties, and therefore did not invalidate the settlement.

The motion to enforce the settlement was granted, and costs were awarded to the defendant.

The accused, Justin Cassie-Berube, was charged with six counts relating to the death of a five-year-old girl, including failing to provide necessaries of life, criminal negligence causing death, manslaughter, assault causing bodily harm, and assault.

The court found the accused guilty on all counts.

The judgment detailed the child's deteriorating health due to a bladder rupture and other injuries, and the accused's conscious decision to withhold medical attention due to fear of legal jeopardy from the child's visible bruises.

The court concluded that the accused's conduct constituted a marked and substantial departure from the standard of a reasonably prudent person, directly contributing to the child's death.

The accused was charged with four counts of sexual assault and sexual interference involving his two stepdaughters.

The court, after hearing testimony from the complainants, the accused, and the accused's wife, found the complainants' evidence unreliable due to numerous inconsistencies, contradictions, and a concerning possibility of collusion.

The accused's testimony was found to be convincing.

Applying the principles of reasonable doubt and credibility assessment, the Crown failed to prove the case beyond a reasonable doubt.

The accused was acquitted on all counts.

The defendants brought a motion seeking a ruling that serving a subpoena on a doctor would allow them to receive the doctor's entire clinical notes and records without the doctor being sworn or called as a witness.

The plaintiffs opposed this.

The court dismissed the defendants' motion, holding that Rule 53.04(1) of the Rules of Civil Procedure requires a witness's attendance and testimony at trial, and that a subpoena cannot be used to bypass established discovery processes or to obtain documentary disclosure without the witness being subject to cross-examination.

The court emphasized that such a practice would lead to "trial by ambush" and discourage early settlement.

The defendants brought a motion for leave to admit an expert report from Dr. Armstrong concerning the plaintiff's life expectancy in a personal injury action.

The court found that while the defendants provided a reasonable explanation for the late delivery of the report and that the plaintiffs were not prejudiced by the delay, the report itself was inadmissible.

The report failed to comply with Rule 53.03(2.1)6 by not providing a methodology or listing all relied-upon documents.

Furthermore, its probative value was deemed very low due to the expert's inappropriate analytical approach (life insurance vs. annuity) and use of general population statistics without proper explanation.

Finally, Dr. Armstrong was not qualified to provide a medical diagnosis as he had not been a member of the College of Physicians and Surgeons since 2010.

The motion for leave was dismissed, and the report was ruled inadmissible.

This judgment addresses a motion to change child support and Section 7 expenses for the parties' 13-year-old daughter.

The primary issue was the father's argument that a prior agreement in 2020 permanently waived child support, preventing review despite a material change in circumstances (the child now primarily residing with the mother).

The court rejected this argument, affirming that parents cannot contract away a child's right to support and that the 2020 agreement did not meet the criteria for an exception under Section 33(12) of the Family Law Act.

The court ordered the father to pay table child support and a pro rata share of certain Section 7 expenses, while disallowing others.

Costs were awarded to the mother.