Pierre E. Roger

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.

The applicant brought an application seeking to manage the personal care of her elderly mother, challenging the validity of recent powers of attorney granted to the mother's husband and son.

The applicant alleged the mother lacked capacity and was subject to undue influence, and alternatively sought to be appointed guardian and requested ordered visits.

The court dismissed the application, finding insufficient evidence of incapacity or undue influence to invalidate the powers of attorney.

The court also declined to appoint a guardian or order visits, noting the mother was not found incapable of personal care and the court's parens patriae jurisdiction was not warranted.

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.

The defendants brought motions seeking to adjourn an upcoming wrongful dismissal and defamation jury trial sine die to allow for summary judgment motions, and to sever the claims against one defendant for a separate trial.

The court dismissed the motion to sever, finding significant factual overlap between the claims and concluding that a single trial was more proportionate and efficient.

The court also dismissed the adjournment motion, noting that the eve of trial is rarely appropriate for summary judgment motions, especially where credibility issues exist, and that delaying the trial would prejudice the plaintiff.

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 applicant father brought a motion for temporary equal parenting time and joint decision-making responsibility.

The court dismissed the motion, finding the father's affidavit lacked sufficient evidence regarding the children's best interests under s. 16 of the Divorce Act and improperly sought final relief on a temporary basis without a strong evidentiary record.

The court ordered temporary child support on consent, specified the father's parenting time, and mandated that he take the children to their extracurricular activities.

Costs of $3,500 were awarded to the respondent mother.

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 brought a motion regarding whether their children should attend school in-person or virtually, and to determine parenting time.

The court ordered that the children continue virtual schooling due to health concerns, pending a reassessment by the child's doctor.

The court maintained the temporary parenting schedule, clarifying that the paternal grandmother and other family members could care for the children during the father's parenting time.

The court also set the Christmas holiday schedule and ordered no costs due to divided success.

The offender was convicted by a jury of assault and assault causing bodily harm against his former intimate partner.

The assaults occurred years apart, with one resulting in fractured ribs.

The Crown sought six to eight months of incarceration, while the offender sought a non-custodial or intermittent sentence.

Emphasizing denunciation and deterrence for domestic violence, the court sentenced the offender to 122 days in custody followed by two years of probation.

The accused pleaded guilty to arson and failing to comply with a probation order after setting fire to a garbage can at a hospital while experiencing a substance-induced psychotic episode.

The Crown sought a 15-month jail sentence, while the accused sought a sentence of time served.

The court considered the accused's mental health issues, his proactive steps toward rehabilitation, and the fact that he moved the burning garbage can outside to minimize damage.

The court imposed a suspended sentence with two years of probation, emphasizing rehabilitation alongside denunciation and deterrence.

The accused, a registered massage therapist, was charged with four counts of sexual assault relating to four female clients.

The complainants alleged inappropriate touching of their breasts, glutes, and inner thighs during massage treatments.

The accused denied the allegations, testifying that he always obtained prior consent for treatment and that the touching was clinically indicated.

Applying the W.(D.) framework, the court found the accused's evidence unreliable due to his admitted lax charting and practices.

However, considering the expert evidence on clinical indications for massaging certain areas and inconsistencies in the complainants' testimonies, the court was left with a reasonable doubt as to whether the touching occurred in circumstances of a sexual nature.

The accused was acquitted on all counts.

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 accused brought a section 525 review of his detention.

He was facing charges including human trafficking, bank robbery, and possession of a stolen vehicle, and was arrested for breaching strict release conditions, including house arrest and GPS monitoring.

The court found that the continued detention of the accused was justified under the secondary ground, as he posed a substantial likelihood of re-offending even under the proposed strict conditions of release.

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.