Pierre E. Roger

The plaintiff, 366012 Ontario Inc., brought a status hearing motion under Rule 48.14(15) of the Rules of Civil Procedure to show cause why its action for alleged misappropriation of funds should not be dismissed for delay.

The court found that the plaintiff provided an acceptable explanation for the delay, which included health issues of its counsel, multiple changes in counsel, and scheduling conflicts with the defendants' counsel, as well as delays due to the COVID-19 pandemic.

The court also determined that the defendants would not suffer non-compensable prejudice if the action were allowed to proceed, despite the historical nature of the allegations and the health issues of some defendants.

The motion was granted, allowing the action to continue under a strict new timetable, with no costs awarded to either party.

The offender, Paul David Batchelor, was found guilty of two counts of sexual assault involving two complainants (Ms. B and Ms. R) after a 24-day trial.

The court considered sentencing principles, aggravating factors (significant victim impact, predatory nature, lack of insight), and mitigating factors (first-time offender for these charges, pre-sentence custody, and difficult conditions due to the COVID-19 pandemic, warranting a Duncan credit).

The court imposed a total sentence of two years and six months imprisonment, along with a two-year probation order, lifetime Sex Offender Registry compliance, a DNA order, and a lifetime weapons prohibition.

Miramare Investment Inc. brought a motion to find AOD Corporation and Alain Mercier in contempt of court for violating a prior order that designated Miramare as the sole entity authorized to deal with a specific patent.

The court had previously ruled that Miramare was the sole entity authorized to deal with the patent, a decision upheld on appeal.

The court found AOD and Alain Mercier guilty of contempt, concluding that the sale of the patent was a clear violation of the court's order.

The judge found Alain Mercier's testimony not credible and confirmed that all elements of contempt were proven beyond a reasonable doubt.

The accused brought several pre-trial applications, including to quash the indictment, change venue, for particulars, for further disclosure, for examination for discovery of investigative officers, and for a stay of proceedings for abuse of process.

The court dismissed the applications to quash the indictment, change venue, for examination for discovery, and for third-party records.

The application for particulars was partially granted, and an order for further disclosure, including a Laporte inventory, was made.

The application for a stay of proceedings for abuse of process was not granted but may be revisited at trial.

The accused was found guilty of sexual offenses against a young stepdaughter (aged 10) under ss. 151, 152, and 271 of the Criminal Code.

The court delivered reasons for sentence, staying the s. 271 charge under the Kienapple principle and imposing concurrent sentences for ss. 151 and 152.

The judgment discusses sentencing principles, aggravating and mitigating factors, and the application of "Summers" and "Duncan" credits for pre-sentence detention, particularly in the context of the COVID-19 pandemic.

The court imposed a four-year term of imprisonment, less pre-sentence custody credit, along with probation and various ancillary orders.

The parties, who separated shortly before their child's birth, resolved most decision-making issues but disputed the father's parenting time.

The father sought to increase his parenting time from five out of 14 days to seven out of 14 days on a 2-2-3 schedule, while the mother sought to maintain the status quo.

The court found that both parents were loving and capable, and that maximizing contact with both parents was in the child's best interests.

The court ordered a graduated increase in the father's parenting time, culminating in a 2-2-3 shared parenting schedule by September 2022, and directed that exchanges transition away from the police station to the child's school or the parents' residences.

The accused, charged with sexual offences against two young complainants, sought a pre-trial ruling to cross-examine one of the complainants about her prior viewing of pornography.

The accused argued that viewing pornography alone is not a 'sexual activity' under s. 276 of the Criminal Code.

The court held that s. 276 must be interpreted broadly to protect the dignity and privacy of complainants, concluding that the provision applies to the private viewing of pornography.

Consequently, such evidence is inadmissible unless the conditions of s. 276(2) are met.

Following the dismissal of the defendants' motions for summary judgment regarding a prefabricated building dispute, the parties could not agree on costs.

The plaintiff sought $50,000 in elevated costs or $40,000 on a partial indemnity basis.

The court found no basis for elevated costs but awarded the plaintiff partial indemnity costs.

Noting some excessiveness in the plaintiff's use of two lawyers, the court fixed the costs at $33,000, inclusive of disbursements, to be paid equally by the defendants, and ordered a case conference to manage outstanding issues.

Following a successful application for wrongful dismissal where the applicant was awarded ten months' notice, the parties could not agree on costs.

The applicant sought $74,524.59 on a substantial indemnity basis, while the respondent argued for partial indemnity costs of approximately $30,000.

The court found that neither party's offers to settle triggered Rule 49.10 and that substantial indemnity costs were not warranted.

The court awarded the applicant costs on a partial indemnity basis for the application, a motion to amend, and an abandoned motion to compel, fixing the total all-inclusive costs at $47,000.

Following the dismissal of the defendants' motion for summary judgment in a simplified procedure action regarding the destruction of a tree, the self-represented plaintiff sought costs.

The defendants argued she was not entitled to costs as a federal public servant who allegedly suffered no lost income.

The court applied the principles from Fong v. Chan and Benarroch, finding the plaintiff performed work ordinarily done by a lawyer and incurred an opportunity cost by using vacation time.

The court awarded the plaintiff $5,000 in costs, representing a reasonable allowance for her time and effort.

Following the dismissal of the defendant's motion for summary judgment, the parties could not agree on costs.

The plaintiff sought costs as the successful party.

The court reviewed the costs outlines, noted the motion was of average complexity, and found the amounts sought by both parties to be reasonable.

The court fixed the costs payable by the defendant to the plaintiff at $13,390, inclusive of fees, disbursements, and taxes.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action regarding the defective construction of a storage building.

The defendants argued they owed no duty of care because they followed the plaintiff's specifications for ventilation, and that the action was statute-barred.

The court dismissed the motion, finding the defendants failed to meet their evidentiary burden to show there was no genuine issue requiring a trial regarding their duty of care and reliance.

The court also found the evidence did not establish the claim was discovered outside the two-year limitation period.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action concerning the destruction of a large maple tree on a shared property line during their land development.

The plaintiff alleged intentional destruction, negligence (breach of duty of care arising from site plan agreement and by-laws), trespass, and nuisance.

The court dismissed the defendants' motion, finding that they failed to meet their evidentiary burden to demonstrate no genuine issue requiring a trial.

The court emphasized the inappropriateness of summary judgment in this simplified procedure action given the conflicting evidence, the lack of examinations for discovery, and the risk of inconsistent findings if the matter were to proceed to a summary trial.

The Corporation of the City of Kingston brought a motion for summary judgment to dismiss a trip and fall action by Darlene Petitpas.

The City argued the plaintiff's expert report was inadmissible and there was no genuine issue for trial.

The court found that the City, as the moving party, failed to meet its initial evidentiary burden by not providing evidence on the applicable standards for catch basin grates at the time of the fall (2018) or that the design/condition was in a proper state of repair at that time.

As the onus did not shift to the plaintiff, the motion for summary judgment was dismissed.

The plaintiff brought a motion to strike the defendants' jury notice in a slip-and-fall case where damages had been settled, leaving only liability at issue.

Due to the COVID-19 pandemic, civil jury trials in Ottawa were indefinitely suspended, causing significant delay.

The court granted the motion, finding that the indefinite delay constituted real and substantial prejudice, outweighing the defendants' right to a jury trial in the interest of timely access to justice.

This endorsement addresses the costs arising from a dismissed motion by the plaintiff to strike the defendant's Statement of Defence and Counterclaim and obtain a judgment for possession.

Despite the defendant's success on the underlying motion, the court ordered no costs.

The judge found the defendant's request for $450,000 in costs to be disproportionate and unreasonable, noting that the defendant's conduct unnecessarily lengthened the motion and their costs submissions lacked particulars and evidence of incurred loss.

The appellant, Kunal Tipu, appealed a decision of the Consent and Capacity Board that confirmed a Community Treatment Order (CTO) reissued by Dr. O’Brien.

The appellant argued the Board erred by implicitly concluding the CTO was properly renewed within the statutory timeframe and by not considering the impact of the Covid-19 pandemic on his ability to comply.

The court dismissed both grounds of appeal, finding no palpable and overriding error by the Board.

The court determined the CTO was properly issued/renewed and that evidence supported the appellant's ability to comply with the treatment plan during the pandemic.

The applicant sought an order declaring the respondent a vexatious litigant.

Despite being aware of the application and court date, the self-represented respondent failed to attend the initial hearing.

The court adjourned the application to a peremptory date and issued an interim order under section 139 of the Courts of Justice Act, prohibiting the respondent from initiating new actions or pursuing steps in existing ones without leave of a Superior Court judge until the application is heard.

The accused, a former foster mother, was charged with historical sexual assault and sexual exploitation of a former foster child.

The complainant alleged a sexual relationship occurred when he was a teenager living in the accused's care.

The accused testified and denied the allegations, providing plausible explanations for their relationship and interactions.

Applying the W.(D) framework, the court found the accused's evidence raised a reasonable doubt and noted significant inconsistencies and a lack of detail in the complainant's testimony.

The accused was acquitted on both counts.

The plaintiff bank brought a motion to strike the self-represented defendant's statement of defence and counterclaim in a mortgage enforcement action.

The plaintiff argued the pleadings disclosed no reasonable defence and relied on 'Freemen on the Land' arguments.

The court dismissed the motion, finding that under Rule 21, the facts in the pleading must be taken as true, and the defendant's denial of default could not be deemed patently ridiculous without evidence.

The court noted the plaintiff likely should have brought a motion for summary judgment instead.