R. Cary Boswell

The plaintiff, a mechanical engineer with 12 years of service, was laid off by the defendant.

He sued for constructive dismissal, seeking 8 weeks' salary in lieu of notice as per his employment contract, which referenced the Employment Standards Act, 2000 (ESA).

The defendant argued that the lay-off was temporary under the ESA and did not trigger termination pay, and that the plaintiff failed to resign within a reasonable period after the constructive dismissal as required by the ESA.

The court found that the employment contract, containing an "entire agreement" clause, displaced the ESA's provisions regarding temporary lay-offs and resignation requirements for constructive dismissal, except for the expressly incorporated notice period.

Judgment was granted in favour of the plaintiff for 8 weeks' salary in lieu of notice.

The appellant vendor appealed a Small Claims Court judgment limiting her damages for a failed condominium assignment transaction based on a mutual release.

The Divisional Court found the trial judge erred in concluding the release was binding, as it lacked the required signature of the realtor, and erred in finding the appellant was estopped from challenging its validity.

The court set aside the trial judgment, recalculated the appellant's damages for the respondents' breach of contract, and awarded her a net sum of $10,911.90 from the deposit.

The Town of New Tecumseth sought an injunction to shut down Norman Dallard's ice cream shop, "What's the Scoop," alleging multiple zoning by-law infractions related to external evidence of a home-based business and employee residency.

Dallard contended that the Town was unfairly targeting him and acting unreasonably.

The court found that the Town had established several by-law breaches, particularly concerning unapproved signage, patron-accessible patio furniture, and the business not being entirely contained within the dwelling, as well as exceeding the permitted number of non-resident employees.

However, the court rejected the Town's claim that the business had become the predominant use of the property and dismissed allegations of bad faith or unreasonable targeting by the Town.

Instead of a full injunction to shut down the business, the court ordered specific compliance measures and awarded the Town $7,500 in costs, adjourning the application sine die for future compliance issues.

During a murder trial, the defence sought to file their expert pathologist's report as a numbered exhibit, which the Crown opposed.

The report detailed the pathologist's critique of the Crown's expert and offered opinions on the timing of injuries, which could support the defence's theory.

The court denied the request, citing the convention against filing expert reports as exhibits, concerns about them acting as prior consistent statements, and the risk of overemphasizing expert evidence without the full context of cross-examination.

The judge also noted the imprecision of the scientific methods for aging injuries and the potential for misuse if the report was admitted without express caveats.

During a murder trial, the Crown sought to admit preliminary hearing testimony of a witness, Mr. Nassirnia, as substantive evidence under the principled exception to the hearsay rule (KGB application).

Mr. Nassirnia could no longer recall incidents he testified about at the preliminary hearing.

Defence counsel objected, arguing the preliminary hearing evidence lacked sufficient reliability due to the witness's apparent lack of genuine recollection, having repeatedly refreshed his memory from a police statement.

The court found that the necessity requirement was met and that sufficient indicia of reliability were present, particularly the oath and opportunity for cross-examination at the preliminary hearing, and the witness's availability for cross-examination at trial.

The court ruled the evidence admissible, with a direction that Crown counsel should first attempt to refresh the witness's memory with his police statement at trial.

The Crown brought a blended application under s. 9(2) of the Canada Evidence Act and the principled exception to hearsay (KGB application) to cross-examine its own witness, Michelle Paul, on prior inconsistent statements and to admit those statements as substantive evidence in a second-degree murder trial.

The witness had testified at trial but claimed inability to recall details from her prior police statement and preliminary hearing testimony.

The defence opposed, citing reliability concerns due to the witness's apparent intoxication during the police statement and arguing that some evidence constituted inadmissible propensity evidence.

The court denied the application, finding that certain details of the "Birthday Incident" were inadmissible propensity evidence, the "Phone Call" evidence did not materially differ from trial testimony, and the "Misinterpretation" evidence lacked legal relevance.

The court was not satisfied that the ends of justice warranted cross-examination or the substantive admission of the prior statements.

The plaintiff purchased a home with a leaky basement and sued the vendors, her real estate agent, and the home inspector for damages.

The court dismissed claims against the real estate agent for failure to establish the standard of care and causation regarding Tarion warranty advice.

Claims against the vendors were dismissed based on the rule of *caveat emptor*, as active concealment of defects was not proven, despite their likely knowledge of the issue.

The home inspector was found negligent and in breach of contract for failing to inspect the exterior foundation and report obstructions, but an exclusion clause in the inspection agreement limited damages to the cost of the inspection ($325).

This ruling addresses a Crown application to admit two statements made by the accused, Kenneth Johnson, as circumstantial evidence of consciousness of guilt in a murder trial.

The statements, one to police and one to his landlord, were alleged to be false and fabricated.

Applying the O'Connor framework, the court found a sufficient evidentiary basis for a jury to conclude the statements were false and fabricated, and capable of supporting an inference of guilt, despite some reservations about the compelling nature of the inference for the landlord statement.

The court also considered and rejected the defence's request to exclude the evidence based on residual discretion, finding the probative value, though modest, was not outweighed by prejudice.

The Crown sought to introduce evidence of prior disreputable conduct and ante mortem hearsay statements made by the deceased in a murder trial where the accused allegedly beat his roommate to death.

The court ruled that statements by the deceased expressing a desire to move out and fear of the accused were admissible under the present state of mind exception and the principled approach to hearsay.

However, a statement attributing a 'hard punch' to the accused was excluded for lacking threshold reliability.

The court also admitted most of the circumstantial evidence of the accused's prior physical abuse of the deceased to show context and animus, finding its probative value outweighed its prejudicial effect, but excluded observations of bruising that could not be directly linked to the accused.

During a jury trial, a voir dire was held to determine the admissibility of statements made by the accused to police after he called 911 regarding his roommate's medical emergency.

The defence argued the statements were involuntary and obtained in breach of the accused's s. 10 Charter rights, alleging he was psychologically detained without being cautioned.

The court found that a reasonable person in the accused's position would not have felt detained, as the police were responding to a medical emergency and had no reason to suspect foul play at the time.

The court concluded the statements were voluntary and admissible.

The plaintiff, Sarah Salisbury, sued Dr. Stephen Kraft for medical negligence, specifically alleging a lack of informed consent for a strabismus surgery that resulted in permanent double vision (diplopia).

Dr. Kraft moved for summary judgment, arguing that the plaintiff could not satisfy the modified objective test for causation or establish a breach of his disclosure obligations.

The court, applying Rule 20.04 of the Rules of Civil Procedure, found that a reasonable person in the plaintiff's position would have opted for the surgery given the limited alternatives and her prior positive experience with the same procedure.

The court also found the plaintiff's evidence regarding the alleged lack of disclosure unreliable when weighed against Dr. Kraft's contemporaneous notes and invariable professional practice.

The motion for summary judgment was granted, and the plaintiff's claim was dismissed.

The offender was convicted of fraud over $5,000, uttering a forged document, and defrauding the public after holding himself out as a lawyer and defrauding multiple victims, including his employer.

The offender had a lengthy criminal record for offences of dishonesty and committed the index offences while serving a conditional sentence.

The court sentenced the offender to 3 years in the penitentiary, less pre-sentence credit, and ordered restitution to the victims.

The defendant, Marcello Fracassi, was convicted of impaired driving causing death and impaired driving causing bodily harm.

The court considered sentencing principles, including denunciation and general deterrence, and reviewed the evolving sentencing ranges for such offences.

Aggravating factors included the defendant's choice to drink and drive, the fatal and injurious consequences, his high blood alcohol concentration, and prior driving infractions.

Mitigating factors included his first-time offender status, genuine remorse, strong community support, and efforts to address an undiagnosed alcohol addiction.

The court imposed a sentence of six years in the penitentiary, with credit for pre-sentence custody and bail conditions, resulting in a net sentence of 5 years and 6 months, along with a seven-year driving prohibition.

The accused, who allegedly posed as a lawyer and defrauded his employer and the public, brought a motion for a directed verdict on counts of fraud and uttering forged documents at the close of the Crown's case.

The court applied the Shephard test to determine if there was any evidence upon which a reasonable jury could return a guilty verdict.

The court found that while there was no direct evidence of the accused forging cheques or a power of attorney, there was ample circumstantial evidence to support the charges.

The motion for a directed verdict was dismissed.

The plaintiff's action and the defendant's third party claim arising from a failed real estate transaction were dismissed on consent following a summary judgment motion.

The court was tasked with determining liability for and the quantum of costs.

Applying the principles from Milina v. Bartsch, the court found that the third party claim naturally and inevitably flowed from the plaintiff's action, justifying a departure from the normal rule that a defendant pays the costs of a third party it brings into the litigation.

The plaintiff was ordered to pay the costs of both the defendant and the third parties.

Costs were fixed on a partial indemnity basis at $20,000 plus HST and disbursements for each, as the amounts claimed were disproportionate to the complexity of the proceeding.

During a jury trial for a slip and fall in a commercial parking lot, the defendants tendered an expert to give opinion evidence on winter maintenance standards.

The plaintiff opposed the qualification.

Following a Mohan voir dire, the court found that the proposed expert had acquired special knowledge in winter maintenance through his post-graduate training and extensive work experience.

The court qualified the witness as an expert, noting that any deficiencies in his training compared to the plaintiff's expert went to weight rather than admissibility.

During a jury trial for a slip and fall in a parking lot, the defendants (the property owner and the winter maintenance contractor) conditionally settled their crossclaims.

The plaintiff sought disclosure of the settlement agreement.

The court ordered the agreement disclosed to the court and then to the plaintiff, finding that it altered the adversarial landscape.

Consequently, the court ruled that the defendants were no longer adverse in interest and prohibited defence counsel from asking leading questions during the cross-examination of each other's witnesses, except on narrow issues where adversity remained.

The plaintiff in a slip and fall action moved to strike the jury following the defendants' opening statements, arguing that defence counsel made improper arguments, impugned plaintiff's counsel, and injected personal opinions.

The court reviewed the impugned statements and found that while some comments crossed the line into argument and unfairly bolstered credibility, the transgressions were minimally prejudicial.

The court dismissed the motion to strike the jury, concluding that a short curative instruction would adequately address the issues without compromising the plaintiff's right to a fair trial.

In a slip and fall action arising from an incident in a grocery store parking lot, the parties raised evidentiary issues regarding the admissibility of business records before the commencement of a jury trial.

The plaintiff sought to introduce Ministry of Transportation records regarding weather and road conditions, while the defendants sought to introduce daily work sheets to establish their snow and ice clearing system.

The court found both sets of records to be logically relevant to the live issues of prevailing weather conditions and the defendants' response.

The court admitted both sets of records, noting that any potential prejudice from the MTO records could be addressed with a limiting instruction to the jury.

The accused, charged with fraud-related offences, brought a Garofoli application to exclude evidence obtained from search warrants executed at his home and business.

He sought leave to cross-examine the police officer who swore the Information to Obtain (ITO), alleging material misrepresentations.

The court denied leave, finding no evidentiary basis to support the alleged misrepresentations and concluding that cross-examination would not elicit testimony tending to discredit the preconditions for the warrants.

The Garofoli application was dismissed, as the court found ample support in the ITO for the issuance of the warrants.