R. Cary Boswell

The defendant, charged with first-degree murder, applied to sit at counsel table during his upcoming jury trial, rather than in the prisoner's dock.

The court considered two lines of authority regarding the presumptive seating position and emphasized the trial judge's wide discretion, which should be contextually driven.

Balancing the defendant's fair trial rights and dignity against security concerns, and noting the absence of specific security risks, the court granted the application, finding it would attenuate prejudice and facilitate solicitor-client communication.

Thomas Chan, while in a drug-induced psychotic state after consuming magic mushrooms, fatally stabbed his father and gravely wounded his father's partner.

He was charged with murder, attempted murder, and aggravated assault, with the Crown seeking convictions for manslaughter and aggravated assault.

The defence argued for a verdict of not criminally responsible (NCR) under s. 16 of the Criminal Code, asserting that a pre-existing mild traumatic brain injury (MTBI) contributed to the psychosis, making him incapable of knowing his actions were wrong.

The court applied a holistic approach, considering internal cause, continuing danger, and policy factors, and concluded that the psychosis was primarily caused by self-induced intoxication, not the MTBI as a "disease of the mind" for the purposes of s. 16.

Consequently, Chan was found guilty of manslaughter and aggravated assault.

This is a costs ruling following a successful motion by the defendant to add the Ministry of Transportation as a third party in a motor vehicle accident claim.

The defendant sought costs on a substantial indemnity basis, or alternatively partial indemnity, while the Ministry argued no costs should be awarded due to alleged delays and complexities caused by the defendant.

The plaintiff, though not a direct party to the motion, also sought costs for attendances.

The court awarded the defendant partial indemnity costs of $15,000, finding no conduct warranting substantial indemnity, and denied costs to the plaintiff who lacked standing on the motion.

John Adamovsky appealed his three convictions for mischief, which arose from his unauthorized alteration of a neighbour's waterfront property on Georgian Bay.

The appellant, representing himself, argued that the trial judge erred in admitting hearsay evidence, assessing witness credibility, misapprehending evidence, and rendering an unreasonable verdict.

The Superior Court of Justice dismissed the appeal, affirming the trial judge's findings that the evidence was properly admitted for a non-hearsay purpose, the credibility assessment was entitled to deference, there was no material misapprehension of evidence, and the verdict was reasonable given the wilful damage and interference with the lawful enjoyment of property, irrespective of the appellant's subjective view of "improvement."

The defendant, Ari Da Costa, brought a mistrial application during his jury trial for first-degree murder, arguing that his right to a fair trial was irreparably compromised due to an eleventh-hour change in opinion by a key Crown forensic psychiatrist, Dr. Klassen.

Dr. Klassen, initially a Crown witness who did not support an NCR defence, provisionally changed his diagnosis to schizophrenia after reviewing extensive new records.

The court found that this significant change in expert opinion, coupled with the necessity of a lengthy adjournment to allow Dr. Klassen to finalize his report, would unduly prejudice the defendant by making it impossible for the jury to retain the nuances of the defence expert testimony.

The court granted the mistrial application, emphasizing the paramount importance of a fundamentally fair trial.

The defendant, Brian Jeffery, brought a motion to add Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation (MTO), as a third party in a negligence action arising from a motor vehicle collision.

The MTO resisted, arguing lack of statutory authority and failure to provide timely notice under the Public Transportation and Highway Improvement Act (PTHIA).

The court found that the PTHIA permits the Crown to be added as a third party for contribution and indemnity claims and that the defendant had a reasonable excuse for late notice, causing no prejudice to the MTO.

The motion was granted.

The Township of Tay sought an interlocutory injunction to stop the respondents from operating a large-scale cannabis grow operation in a residential area zoned Village Commercial (C1), which violated the Township's Zoning By-Law.

The respondents, licensed for medical cannabis production, argued the by-law was vague and that their activities were for personal medical use.

The court applied the RJR-MacDonald test for interlocutory injunctions, finding the Township had a strong prima facie case, would suffer irreparable harm (due to by-law enforcement in the public interest), and the balance of convenience favored the Township.

The injunction was granted, effective January 15, 2019, to allow relocation.

The applicants, adult children of Hilda Anne Willis, brought a motion seeking declarations of their mother's incapacity and their appointment as guardians for her property and personal care, as well as financial disclosure from her husband, David Joseph Burgie.

The court found Ms. Willis, an 86-year-old with dementia, incapable of managing her property and personal care.

However, it declined to appoint the applicants as guardians.

For property, the court noted a subsisting Power of Attorney in favour of Danny Willis, making a guardianship order unnecessary.

For personal care, the court ordered Ms. Willis to return to her home under Mr. Burgie's care, supplemented by at least three hours of daily homecare, finding that Mr. Burgie's care was not irresponsible, though needing supplementation.

The application was adjourned, and costs were to be addressed by written submissions if no agreement was reached.

The appellant employer appealed a Small Claims Court judgment awarding the respondent employee $25,000 for breach of a fixed-term employment contract.

The employee was hired for a one-year term to cover a maternity leave but was terminated after five months due to a shortage of work.

The employer argued the trial judge erred by inferring the contract guaranteed full-time hours, as the written agreement was silent on hours.

The Divisional Court dismissed the appeal, finding ample evidence to support the trial judge's conclusion that the parties objectively intended a full-time position, and no palpable and overriding error in the damages calculation.

The plaintiff, Parker Lee, sued the defendants, Feng Qing He and Jie He, for the balance owing on a $700,000 mortgage after default.

The defendants disputed various claimed fees, alleging they were illegal or unreasonable, and counterclaimed for damages due to an inability to refinance.

The court conducted a mini-trial to determine the validity of an increased interest rate, a three-month bonus interest, and several administrative, investigation, rent attornment, property management, and legal fees.

The court found the increased interest rate and most administrative and property management fees invalid, but allowed some statement fees, rent attornment fees, and legal fees.

The defendants' counterclaim for damages was dismissed as they failed to prove they were ready, willing, and able to refinance.

The plaintiff suffered catastrophic injuries in a snowboarding accident and sued the resort and others.

In a separate action, the plaintiff sued a rehabilitation centre for negligent care.

The resort brought a third-party claim against the rehabilitation centre in the main action for contribution and indemnity.

The rehabilitation centre moved to strike the third-party claim under Rule 21.01(1)(b).

The court granted the motion, finding that because the plaintiff had expressly limited his claim against the resort to its several share of liability, the resort faced no risk of paying a disproportionate share of damages.

Consequently, the third-party claim for contribution and indemnity was untenable in law.

The applicants sought an injunction to stay power of sale proceedings, a declaration that a Notice of Sale was invalid, and the release of trust funds to redeem a mortgage.

The respondent opposed, arguing the application should be stayed due to unpaid costs and that the trust funds were subject to a prior court order.

The court declined to stay the application for costs.

It ruled that the trust funds must remain in trust pending the judgment in a separate consolidated action concerning other mortgages.

The court found the respondent's Notice of Sale invalid because it was issued in breach of a forbearance agreement, but clarified that the respondent was free to issue a new, compliant notice.

The request to stay the power of sale proceedings was otherwise dismissed.

The applicant, 2303757 Ontario Inc. ("230"), sought forfeiture of a $200,000 deposit held in trust by Bratty's LLP following a failed real estate transaction.

The respondent, 2149589 Ontario Inc. ("214"), claimed entitlement to the funds, arguing they were its money, paid without its full authorization, and that 230 was not a bona fide purchaser for value without notice.

The court found that the funds constituted a deposit subject to the Agreement of Purchase and Sale (APS), that 230 became a bona fide purchaser for value without notice when the agreement terminated due to the buyer's breach, and that 230 acquired an absolute interest in the funds at that time, regardless of whether they were physically in its hands.

The application for forfeiture was granted.

The applicants sought to enforce registered easements over a shared access road (Brewers Close) on the respondents' property, seeking injunctive relief to restore the road to its original condition after the respondents unilaterally relocated a portion of it.

The respondents argued the easements were invalid due to vagueness and, alternatively, that the relocation did not substantially impair the applicants' use.

The court found the easements were not invalid due to vagueness, considering extrinsic evidence, but could not declare them fully valid without tracing their roots.

Crucially, the court determined that the relocation did not substantially impair the applicants' reasonable use of the easement for its granted purpose.

Consequently, both the application and the respondents' counter-application for a declaration of invalidity were dismissed.

The defendants, North American (Park Place) Corporation and North American (Park Place East) Corporation, brought a motion under s. 47(1) of the Construction Lien Act to dismiss the plaintiff M. Fuda Contracting Inc.'s construction lien action for delay and release the remaining security.

The court considered the four-year delay, the complexity of the case, the plaintiff's explanation, and the prejudice to the defendants.

While acknowledging the plaintiff's delay exceeded the presumptive two-year ceiling for lien actions, the court found the delay was partially explained by the case's complexity and a document dispute.

The prejudice to the defendants was attenuated by significant reductions in security and the existence of a companion slander of title action.

The motion to dismiss was denied, but the plaintiff was given a "last chance opportunity" to have the matter on the ready trial list by spring 2019, serve expert reports, and arrange a settlement conference by year-end.

The plaintiffs, Kevin Patrick O’Hare and Karen O’Hare, brought a motion for summary judgment against Christopher William Wyton for breach of an Agreement of Purchase and Sale (APS) for a residential property.

Wyton failed to close the transaction, leading the O'Hares to resell the property at a lower price and incur additional carrying costs.

Wyton argued that the closing date was extended by the O'Hares' agent and that the O'Hares failed to reasonably mitigate their damages.

The court found that the closing date was not extended as per the APS's requirement for a written agreement, and that the O'Hares took reasonable steps to mitigate their losses.

Summary judgment was granted in favour of the O'Hares for damages totaling $56,861.90, less an $8,000 deposit.

The accused, charged with murder, attempted murder, and aggravated assault after stabbing his father and his father's partner while hallucinating on magic mushrooms, brought an application challenging the constitutionality of s. 33.1 of the Criminal Code.

Section 33.1 precludes the defence of self-induced intoxication for general intent offences involving violence.

The court found that while s. 33.1 violates the accused's rights under ss. 7 and 11(d) of the Charter by substituting the intent to become intoxicated for the fault and voluntariness elements of the offences, the provision is saved under s. 1 of the Charter.

The court held that protecting victims, particularly women and children, from intoxicated violence and ensuring offender accountability are pressing and substantial objectives that justify the Charter infringements.

The Crown applied for a ruling on the voluntariness of a statement made by the self-represented accused to a homicide investigator.

The accused, charged with the first-degree murder of his father, argued he lacked an operating mind during the interview due to mental health issues.

The court applied the Oickle and Whittle tests, finding that the accused understood what he was saying, knew he was speaking to a police officer, and appreciated the potential consequences.

The court concluded beyond a reasonable doubt that the statement was voluntary, not the result of threats, promises, or trickery, and ruled it admissible in its entirety.

During a murder trial involving a Mr. Big undercover operation, the Crown sought to introduce statements the accused made to an undercover officer about his prior involvement in the cocaine trade.

The defence objected, arguing the evidence was highly prejudicial bad character evidence.

The court applied the framework for propensity evidence and found that the evidence was highly probative to the jury's assessment of the reliability of the accused's confession, as it provided context regarding his sophistication and vulnerability to inducements.

The court ruled the evidence admissible, concluding its probative value outweighed the risk of prejudice, which could be managed with a limiting instruction.

The plaintiffs brought a supplemental motion for summary judgment to hold the individual defendants personally liable for the unpaid purchase price of a fitness club business.

The court found that the individual defendants, as the controlling minds of the corporate defendant, used the corporation to engage in improper and dishonest conduct by converting the plaintiffs' assets without payment.

Applying the principles of good faith dealing and piercing the corporate veil, the court granted summary judgment against the individual defendants for $58,697.06.