R. Cary Boswell

Applicants brought an application challenging the validity of sections 3, 4, and 5 of the 2002 Minimum Maintenance Standards for Municipal Roadways under the Municipal Act, 2001, asserting that the regulation was ultra vires.

The challenge arose in the context of a personal injury action alleging negligent winter road maintenance.

After the Court of Appeal’s decision in Giuliani limited the scope of the regulation and the municipality withdrew reliance on it as a defence, the respondents moved to strike the application as moot.

The court held that no live controversy remained between the parties and declined to exercise discretion to hear the matter, emphasizing judicial economy and the limited relevance of the impugned provisions following amendments and appellate guidance.

The applicant, convicted of two counts of second degree murder and awaiting a further murder trial, sought a publication ban on evidence and credibility findings arising from an earlier application under s. 462.34 of the Criminal Code for access to seized funds to pay legal fees.

The court considered whether it had jurisdiction to grant a ban and applied the common law Dagenais/Mentuck test balancing freedom of expression against the accused’s right to a fair trial.

The court concluded that publication of the applicant’s admissions of criminal activity and the court’s adverse credibility findings posed a serious risk to the proper administration of justice in the upcoming jury trial.

A temporary ban was therefore necessary and proportionate.

The court ordered a time‑limited publication ban on the evidence, the fact of the application, and the earlier decision until completion of the pending murder trial.

The accused applied under s. 462.34(1) of the Criminal Code for access to funds seized by police as alleged proceeds of crime in order to pay legal fees while facing multiple serious criminal charges including kidnapping and murder.

The court applied the three‑part test requiring proof of an interest in the funds, the absence of other assets or means to fund legal expenses, and the absence of competing ownership claims.

While the Crown conceded the accused had an interest in the seized funds, the court found he failed to establish that he lacked other available assets.

Given extensive evidence of undisclosed or unaccounted assets and the applicant’s lack of credibility, the court was not satisfied on a balance of probabilities that no other means existed to fund counsel.

The accused applied for a directed verdict of acquittal after the Crown closed its case on a charge of attempted murder.

The Crown relied primarily on eyewitness recognition evidence from the complainant, who identified the accused through photo line-ups and an in-dock identification.

The defence argued the identification narrative was irreparably tainted by flawed police photo line-up procedures and minimal prior familiarity between the witness and the accused.

The court held that although the December 6, 2010 photo line-up was not ideal and raised legitimate concerns, it still met the threshold reliability required to be left to the jury.

The court concluded that the complainant’s recognition evidence and in-dock identification, if believed, could support a conviction beyond a reasonable doubt and therefore the matter should proceed to the jury.

During a jury trial for attempted murder, the accused applied for a stay of proceedings after police lost the photograph used in the initial photo line-up in which the victim identified him.

The court found that the police negligently failed to preserve the photograph, breaching the Crown’s disclosure obligations and the accused’s s. 7 Charter right to make full answer and defence.

However, the court held that the breach did not cause irreparable prejudice because a video recording of the photo line-up and the remaining photographs allowed the defence to challenge the reliability of the identification evidence.

The court concluded that the evidentiary deficiencies actually weakened the prosecution’s case before the jury.

A stay of proceedings was therefore not warranted.

The plaintiff, a cyclist with significant pre-existing psychological and cognitive vulnerabilities, was struck by a police cruiser while riding through a pedestrian crosswalk at night.

The court apportioned liability 60% to the defendant police officer and 40% to the plaintiff.

Applying the thin skull rule, the court found the collision exacerbated the plaintiff's pre-existing conditions and caused a mild traumatic brain injury, rendering him completely disabled and requiring 24/7 attendant care.

Total damages were assessed at over $5.2 million, reduced to $3,131,370 after accounting for contributory negligence.

During a jury trial for attempted murder, the accused sought to exclude evidence that he had provided a cell phone number to his probation officer, which the police later used to obtain records placing him near the scene of the attack.

The accused argued that the statement was compelled and its admission would violate the common law confessions rule and the constitutional principle against self‑incrimination.

The court held that the probation officer was not a “person in authority” within the meaning of the confessions rule because there was no investigation or prosecution underway when the number was provided.

The court further found the number was given voluntarily in a voicemail message and was not compelled by the probation order, which required only that the accused provide an address.

Balancing the contextual factors under s. 7 of the Charter, the court concluded that admitting the phone number did not infringe the right against self‑incrimination and was admissible.

The accused faced a single remaining count of obstructing justice after resolving other charges by plea.

The allegation was that he misled the court about his identity by allowing himself to be presented under an assumed name and by providing a false birth date during a bail appearance.

The court held that giving a knowingly false birth date that perpetuated the court’s misunderstanding of the accused’s identity constituted the actus reus of obstruction under s. 139(2) of the Criminal Code.

Although the accused testified that he intended only to maintain the status quo until consulting counsel, the court found that his purpose at the time was to preserve concealment of his true identity.

The Crown proved both the actus reus and specific intent beyond a reasonable doubt.

The offender was convicted after trial of robbery arising from a planned home invasion robbery targeting jewellery vendors returning home with inventory worth approximately $250,000.

Although not present during the violent robbery, the offender aided the offence by renting a vehicle used in the operation and facilitating access to a building where stolen property was transported.

The court emphasized denunciation and deterrence given the violent home invasion involving masked perpetrators and serious psychological harm to the victims.

A conditional sentence was found unavailable because the offence constituted a serious personal injury offence within the meaning of the Criminal Code.

Considering parity with other participants, mitigating factors including the offender’s lack of criminal record, limited role, pre‑trial custody, restrictive bail conditions, and immigration consequences, the court imposed a custodial sentence of 18 months.

The plaintiffs brought a motion to set aside a registrar’s dismissal for delay in a motor vehicle accident action.

Applying the contextual approach to the Reid v. Dow Corning Corp. criteria, the court considered the explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendants.

The court found uncertainty regarding whether the dismissal order had ever come to the attention of the plaintiffs while they were unrepresented, and accepted that the plaintiffs intended to pursue the litigation.

The court also concluded that the presumption of prejudice from delay had been rebutted and that the defendants failed to establish actual prejudice.

In the interests of justice and adjudication on the merits, the dismissal was set aside.

In a child protection status review proceeding, the mother sought third-party disclosure of school records and therapeutic counselling records relating to the children and the father in order to respond to a pending summary judgment motion.

The court applied Rule 19(11) of the Family Law Rules governing non-party disclosure and considered whether counselling records were protected by case-specific privilege using the Wigmore test.

While school records and the notes of a psychological associate facilitating therapeutic access were ordered produced, the court held that private therapy records were protected by privilege due to the confidential therapist‑patient relationship and the strong privacy interests of the children.

The request for those therapy records was speculative and constituted a fishing expedition.

The court concluded that disclosure was not necessary for the moving party to make full answer and defence.

On an interim family law motion, the applicant sought exclusive possession of the matrimonial home, interim spousal support, and an advance for expert valuation expenses relating to equalization.

The parties continued living in the matrimonial home in intolerable circumstances after separation, while the respondent possessed significantly greater financial resources and alternative accommodation.

The court granted the applicant exclusive possession, finding it reasonable that the respondent vacate given the applicant’s limited means and the presence of extended family members in the home.

Due to incomplete financial disclosure and evidence of substantial assets, the court imputed income of $100,000 to the respondent and ordered interim spousal support of $2,000 per month.

The court also ordered the respondent to advance $60,500 on equalization to permit the applicant to retain experts and ensure trial fairness.

The accused was charged with being a party to a robbery and possession of stolen property.

The Crown alleged she aided the principals of a $250,000 jewellery robbery by renting a vehicle used as a scout and getaway car.

The case was entirely circumstantial.

The court found that the cumulative effect of the evidence, including her association with the principals and presence during the arrival of the stolen goods, led to the inexorable inference that she knew of the robbery and intended to aid it.

She was found guilty of the robbery charges but acquitted of possessing stolen travellers' cheques found in her vehicle due to lack of evidence of knowledge.

The appellant appealed a Small Claims Court judgment, arguing the trial judge exceeded the court's $25,000 monetary jurisdiction by finding the appellant owed the respondents $42,633.57 before setting off $21,094.72 owed to the appellant, resulting in a net judgment of $21,538.85.

The Divisional Court dismissed the appeal, holding that monetary limits restrict the amount recoverable by the final judgment, not the reasoning process or intermediate calculations used to arrive at that amount.

The net judgment was within the court's jurisdiction.

The defendants moved to strike the plaintiffs’ pleadings for failure to comply with a production order requiring an accounting of revenues and supporting documents relating to the exploitation of certain patented shoe insole technology.

The plaintiffs had initially failed to meet the deadline and their early attempts at compliance were deficient, but they later produced extensive supplementary disclosure and accounting materials.

The court held that although the plaintiffs’ record‑keeping was poor, they had made earnest efforts and had achieved substantial compliance with the production order.

The court declined to exercise its discretion to strike the pleadings, emphasizing the preference for deciding civil disputes on their merits and the absence of wilful non‑compliance.

The plaintiffs’ cross‑motion seeking leave to revive a previously adjourned summary judgment motion was also dismissed because the action was imminently scheduled for trial and the motion could disrupt the trial schedule.

The applicant sought interim spousal and child support, section 7 expenses, and a preservation order.

The parties lived a lavish lifestyle during the marriage, funded by a mix of income and capital.

Due to the respondent's inadequate financial disclosure, the court imputed an income of $250,000 for child support purposes and ordered combined interim support of $20,000 per month, recognizing the respondent would need to encroach on capital to pay it.

The request for a preservation order was dismissed to allow the respondent to utilize capital for support.

The accused, charged with first-degree murder, brought a motion for a non-suit on the classification of the murder.

The accused argued that the victim was already dead when the acts constituting the alleged sexual assault occurred, and therefore s. 231(5)(b) of the Criminal Code could not apply.

The court dismissed the motion, applying the 'single transaction' principle from R. v. Paré and R. v. Westergard, which holds that the exact sequence of the murder and the underlying offence is irrelevant as long as they form a continuous sequence of events.

The court found sufficient evidence to leave the charge of first-degree murder with the jury.

Following a successful motion fixing the statutory construction lien holdback amount under the Construction Lien Act, the court determined the appropriate costs payable to lien claimants.

The successful parties sought substantial indemnity costs based on a late offer to settle and alleged litigation conduct by the opposing mortgagee representative.

The court held that the offer did not trigger Rule 49 consequences because it was served fewer than seven days before the hearing, and there were no exceptional circumstances justifying costs beyond the usual partial indemnity scale.

Costs were therefore awarded primarily to the two counsel who carried the motion on behalf of all lien claimants, with modest costs granted to several additional claimants who attended but did not argue the motion.

Following a defence motion compelling the plaintiff to attend certain defence medical examinations, the court addressed costs after partial success on the underlying motion.

The defendant succeeded in obtaining an order requiring attendance at a vascular surgery examination but not an ophthalmological examination.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered proportionality, complexity, divided success, and the reasonable expectations of the parties.

The defendant’s request for nearly $13,000 in costs was found disproportionate for a one‑hour motion.

The court fixed partial indemnity costs at $4,000 payable by the plaintiff.

The Crown prosecuted historical sexual offence allegations said to have occurred between 1985 and 1987 against a child complainant in a household setting.

The trial judge found the complainant to be sincere and generally credible, but held that significant inconsistencies across police, preliminary inquiry, and trial accounts, substantial gaps in recollection, and the risk of memory distortion over time undermined reliability.

The court also found the corroborative evidence of the complainant's mother unreliable.

Applying the reasonable doubt standard to frail historical evidence, the court acquitted on all counts.