Pierre E. Roger

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.

The Brisson defendants brought a motion seeking to reinstate Christian Pilon and Charron Langlois S.R.L. as defendants to their counterclaim, to determine costs thrown away for amendments, and to compel disclosure of certain unredacted documents.

The court granted leave to amend the defence and counterclaim, ordered the reinstatement of both Christian Pilon and Charron Langlois S.R.L. as defendants to the counterclaim, and ordered the production of unredacted partnership agreements, a share purchase agreement, and Christian Pilon's 2015 T4/income tax return/notice of assessment.

Banking records were ordered with appropriate redactions.

The court declined to order costs thrown away, finding it unnecessary at this stage, and awarded partial indemnity costs of $14,000 all-inclusive to the Brisson defendants, noting the moving parties' excessive motion record and unnecessary cross-examination.

The defendant brought a motion under section 47 of the Construction Act to discharge a construction lien registered by the plaintiff, alleging it was registered out of time due to contract abandonment.

The court addressed whether the enhanced powers of Rule 20 of the Rules of Civil Procedure (weighing evidence, assessing credibility) apply to section 47 motions, concluding they do not.

Finding multiple triable issues regarding the timing of contract abandonment, the court dismissed the defendant's motion.

The defendants, excluding Justin Noseworthy, brought a motion to set aside a prior order from January 31, 2023, which had dismissed their motion to adjourn trial and ordered costs against them.

They argued that the plaintiff had misled the court by later increasing the number of witnesses, leading to the trial's adjournment.

The court dismissed the defendants' motion, finding that the additional witnesses would not have changed the original decision to refuse the adjournment.

The court emphasized that reopening a motion is reserved for exceptional circumstances and that the plaintiff's actions did not constitute misleading the court.

The court also maintained the prior order prohibiting further motions without leave due to the parties' history of unnecessary motions.

Costs were awarded to the plaintiff on a substantial indemnity basis due to the defendants' unfounded allegations of misleading the court.

The Children's Aid Society sought a secure treatment order for a 14-year-old child under s. 164 of the Child, Youth and Family Services Act, 2017, due to severe self-harming behaviors linked to mental disorders.

The child and mother opposed, while the father supported the application.

The court found all six statutory criteria for secure treatment were met, including the child's mental disorder, recent serious self-harm, the effectiveness and availability of the proposed program at Syl Apps Youth Centre, and the lack of less restrictive alternatives.

The court also exercised its residual discretion, concluding that secure treatment was in the child's best interests despite the mother's objections and potential limitations on the placement duration.

A 180-day commitment was deemed necessary.

This family law decision addresses a dispute over parenting time and holiday schedules following the parties' divorce.

The applicant father sought to change the existing 2-2-5-5 shared parenting schedule to a week-about schedule, citing high conflict and negative impacts on the children.

The respondent mother argued the current schedule was effective and the case was not high conflict.

Applying the "best interests of the child" principle under the Divorce Act, the court dismissed the father's request for a week-about schedule, finding the current 2-2-5-5 schedule better served the children's needs, particularly during the school year.

The court also determined the case did not meet the threshold for "high conflict." However, the court formalized specific arrangements for Christmas and March school breaks, largely based on the parties' consent, including fixed transition dates and early notification requirements.

The accused brought a Charter motion alleging breaches of Sections 8 and 9 due to an unlawful warrantless arrest and an unlawful search incident to arrest, including the observation of a phone notification.

The court found that the arrest was lawful, based on reasonable and probable grounds derived from police surveillance and communication with the accused, who was believed to have sexually assaulted the complainant.

The court also ruled that observing a plain-view phone notification on a lawfully seized phone did not constitute a search engaging Section 8 Charter rights, as there was no reasonable expectation of privacy.

Consequently, the accused's application to exclude evidence was dismissed.

This medical malpractice action concerned the plaintiff's claim of chronic pain resulting from the defendants' alleged negligence in treating a ruptured Achilles tendon.

The court found that while Dr. Boivin breached the standard of care by failing to properly immobilize the plaintiff's foot or refer her to a specialist, and Kingsway Health Centre was negligent in administrative follow-up, these breaches did not cause the plaintiff's injuries.

The plaintiff's own non-compliance with medical advice and delay in seeking surgery were found to be the cause of her worsened condition.

The court also found the plaintiff to be an unreliable and incredible witness regarding her injuries and financial losses.

The action was dismissed.

The applicants sought a declaration that their home insurer was required to reimburse them for legal costs and settlement amounts from an underlying action, despite providing notice to the insurer almost seven years after the action commenced.

The insurer denied coverage due to the late notice.

The court held that while relief from forfeiture can apply to pre-tender defence costs, it should not be granted in this case.

The applicants failed to establish that the nearly seven-year delay was not a grave breach or that the prejudice to the insurer was disproportionate to the forfeited coverage.

The application was dismissed.

The parties sought costs following a motion and cross-motion regarding parenting time, decision-making responsibility, and exclusive possession of the matrimonial home.

The applicant mother sought $8,398.27 in costs, while the respondent father sought $18,146.03.

The court found that success was divided, with the father being only slightly more successful but having engaged in some unreasonable litigation conduct.

Considering all circumstances, the court ordered that each party bear their own costs.

The accused brought a Garofoli application to exclude evidence obtained from a search warrant and production orders, arguing the underlying informations to obtain (ITOs) were invalid.

The court previously found the authorizations invalid due to improper oaths and a lack of officer notes.

After recalling the affiant officer, the court varied its findings, concluding the officer did prepare the ITOs, though the oath defects remained.

Applying the Grant framework under s. 24(2) of the Charter, the court held that while the state conduct in failing to properly swear the oaths was moderately serious, the impact on the accused's Charter rights was mitigated by the existence of reasonable grounds, and society's interest favoured adjudication on the merits.

The application to exclude the evidence was dismissed.

The defendant brought a motion for summary judgment to dismiss the defamation action against him.

The plaintiff opposed the motion, arguing that partial summary judgment was inappropriate because the issues were intertwined with claims against other defendants and a trial was already scheduled.

The court dismissed the motion, finding that partial summary judgment could lead to inconsistent findings and would not achieve a proportionate, cost-effective, and timely dispute resolution given the upcoming trial.

Following cross-motions for summary judgment where the plaintiff was successful in recovering the residual proceeds of a power of sale, the court determined costs and prejudgment interest.

The court awarded the plaintiff costs of $45,515.37, noting the plaintiff beat its Rule 49 offer and the defendants unreasonably rejected a settlement proposal.

The court also awarded prejudgment interest at 2% from the date of the power of sale.

The accused brought a Garofoli application to quash a search warrant and two production orders issued during a tax fraud investigation.

The court found the search warrant invalid because the information to obtain (ITO) was never sworn under oath.

The court also found the production orders invalid because the affiant swore the ITOs without personal knowledge of their contents, and one of the ITOs was commissioned by a lawyer not authorized to take oaths in Ontario.

The application was granted and the warrants were quashed.