R. Cary Boswell

The moving party brought a motion for leave to appeal an order of the Superior Court of Justice dated November 13, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the fixed amount of $5,000.

The moving parties sought leave to appeal an order of Kimmel J. dated October 20, 2020.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs were awarded to the responding parties in the fixed amount of $3,500.

The moving party brought a motion for leave to appeal an order dated December 9, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party on a partial indemnity basis in the amount of $3,500.

The moving parties brought a motion for leave to appeal an order of Myers J. dated November 2, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $7,500.

The appellant tenant appealed a Landlord and Tenant Board order terminating her tenancy and evicting her family following an altercation with the building superintendent over a clogged sink.

The Divisional Court allowed the appeal, finding the Board made several errors of law.

Specifically, the Board failed to consider whether the tenant 'permitted' the illegal act (spitting) under s. 61(1) of the Residential Tenancies Act, improperly speculated about future risk under s. 66(1), and failed to consider all relevant circumstances for relief from eviction under s. 83.

The eviction order was set aside and the landlord's applications were dismissed.

The plaintiffs commenced an occupiers' liability action after one plaintiff allegedly struck her head on a staircase in the defendants' building.

At a pre-trial conference, the pre-trial judge ordered the appointment of a court expert to report on liability and human factors, despite objections from the defendants and the plaintiffs' objection to paying the costs.

The pre-trial judge provided no reasons for the order.

The defendants appealed.

The Divisional Court allowed the appeal and set aside the order, holding that the pre-trial judge erred by failing to provide reasons and by issuing an order that required the expert to investigate and weigh evidence, thereby usurping the role of the trier of fact.

The defendant construction management firm moved under s. 44(5) of the Construction Lien Act to reduce the security it posted to vacate the plaintiff subcontractor's lien.

The parties' contract stipulated that payment was conditional on certification by an authorized engineer.

The engineer certified that the plaintiff had been overpaid, and the plaintiff provided no evidence of bad faith or fraud by the certifier.

The court held that the certifier's decision was binding and reduced the security from over $500,000 to $24,000, accounting only for unpaid holdbacks and HST.

The defendants in a complex defamation action brought motions for the production of documents related to 'Project Maple Tree', an operation undertaken by foreign investigative agents (including Black Cube) retained by the plaintiffs.

The plaintiffs asserted solicitor-client and litigation privilege over the documents.

The court held that it had jurisdiction to hear the motions despite the stay provision in s. 137.1(5) of the Courts of Justice Act.

The court rejected the claims of solicitor-client privilege, finding the third-party investigators were not essential to the solicitor-client relationship.

The court also rejected the claims of litigation privilege for the vast majority of the documents, finding their dominant purpose was not legitimate litigation and that the 'Blank exception' applied because the agents engaged in improper conduct, including pretext stings on a former judge and opposing party employees.

Mr. Thakur pleaded guilty to one count of theft under $5,000.

The offence involved him sharing $5,000 of DRPS money, obtained by a co-accused police officer (Husen Aswat) through a sting operation, to purchase a fishing boat.

The Crown sought a conditional discharge with probation, while the defence sought an absolute discharge.

The court considered Mr. Thakur's exemplary career as a police officer, his undiagnosed PTSD and depression at the time of the offence, and the significant collateral consequences he suffered, including the loss of his career and public stigma.

Despite his status as a police officer being an aggravating factor, the court found that the unique circumstances, including his mental health and the profound impact of the proceedings, warranted an absolute discharge, concluding that probation would serve no meaningful purpose and offend the principle of proportionality.

The defendant was convicted of internet child luring following a police sting operation known as Project Raphael.

The defendant's initial application for a stay of proceedings based on entrapment was dismissed by the court, relying on horizontal precedent that found the project was a bona fide investigation.

Following a recent decision by another judge who reversed his own prior ruling and found the project constituted entrapment, the defendant applied to re-open his entrapment application.

The court granted the request, finding that the reversal in horizontal precedent constituted a material change in circumstances that justified re-opening the application to hear evidence and make an independent determination.

The accused, charged with assault and sexual assault, applied to vary his bail conditions to allow him to leave his residence without his surety.

He had been on strict house arrest for seven months without any breaches, despite 50 police compliance checks.

The court considered the accused's lengthy criminal record and the serious nature of the charges, but found that his unblemished compliance and the delayed trial date justified a modest loosening of his conditions.

The application was granted, and the release order was amended to permit the accused to leave the residence on specific days with his surety's written permission.

The plaintiff in a motor vehicle accident claim moved to strike the defendant's jury notice, arguing that the COVID-19 pandemic created uncertainty about when in-person jury trials could proceed.

The court granted leave to bring the motion but dismissed it as premature.

The court noted that the case was not yet trial-ready, having not been pre-tried and with a recent medical report served.

Following a wait-and-see approach preferred in the Central East Region, the court held that the motion could be renewed if in-person hearings were suspended again or if the action was not scheduled for trial by April 1, 2021.

The plaintiffs brought a motion to strike the defendant insurer's jury notice, arguing that the COVID-19 pandemic would cause indefinite delays for a civil jury trial.

The action arose from a 2014 motor vehicle accident involving an uninsured motorist.

The court granted leave to bring the motion under Rule 48.04(1), finding the pandemic constituted a substantial and unexpected change in circumstances.

However, the court dismissed the motion to strike the jury notice, adopting a 'wait and see' approach.

The court noted that the Central East Region had established a running civil trial list and was making efforts to accommodate in-person jury trials, making it premature to conclude that retaining the jury would cause disproportionate delay.

The accused pleaded guilty to dangerous driving causing bodily harm after striking his neighbour with his pick-up truck.

A Gardiner hearing was held to determine whether the accused struck the victim intentionally, an aggravating factor for sentencing.

The Crown presented circumstantial evidence, including accident reconstruction and mechanical expert testimony, to prove the accused deliberately drove off the road and into the victim due to suspicions of an affair with his wife.

The court rejected the accused's testimony that the collision was accidental, finding it implausible and inconsistent with physical evidence.

The court concluded the Crown proved beyond a reasonable doubt that the collision was intentional.

The plaintiff, who was injured after falling from scaffolding while doing drywall work at the defendants' home, sought to amend his statement of claim after the expiry of the limitation period.

The original claim was framed in occupiers' liability, alleging acts of omission.

The proposed amendments alleged acts of commission, specifically that the defendant distracted the plaintiff or bumped the scaffolding.

The court dismissed the motion, finding that the amendments raised a new cause of action that was statute-barred, as the plaintiff knew or ought to have known of the facts giving rise to the new claim on the date of the incident.

The defendant in a medical malpractice action brought a motion to compel the plaintiffs to re-attend examinations for discovery to answer questions they previously refused.

The questions related to when the deceased and the plaintiffs first retained counsel and requested medical records, which the defendant argued was relevant to their limitation period defence.

The court granted the motion, finding that facts regarding the date a cause of action arises and when counsel was retained are relevant to discoverability and are not protected by solicitor-client privilege.

The plaintiffs were ordered to re-attend at their own expense.

The Crown applied for certiorari with mandamus in aid to quash a preliminary hearing judge's decision discharging the accused on firearms offences.

The accused was the driver of a vehicle in which a loaded handgun was found under the passenger seat.

The reviewing court found that the preliminary hearing judge committed a jurisdictional error by failing to consider the whole of the circumstantial evidence, including the accused's evasiveness and evidence of drug dealing, which could reasonably support an inference of constructive possession.

The discharge was quashed and the matter remitted with a direction to commit the accused to trial.

The plaintiffs brought a medical malpractice action against the defendant obstetricians, alleging that their negligence caused the infant plaintiff to suffer a severe brain injury.

Following a jury trial, the jury found that the defendants breached the standard of care and that the breaches caused the injuries.

However, the trial judge refused to enter judgment on the verdict, finding that the jury's answers explaining how the breaches caused the injuries were insufficient and non-responsive.

The trial judge ordered a new trial.

The plaintiffs appealed, arguing the trial judge exceeded her jurisdiction.

The defendants cross-appealed, arguing the action should have been dismissed for lack of evidence on causation.

The Divisional Court dismissed both the appeal and cross-appeal.

The majority held that the trial judge correctly concluded the jury's answers on causation were insufficient, as they merely repeated the breaches of the standard of care and failed to explain the causal link, leaving the central issue in doubt.

The plaintiffs commenced two actions arising from the purchase of a property with structural issues: one against Stewart Title for breach of title insurance contract and a "tort action" against multiple parties (vendors, home inspector, township, contractors) for property defects.

Stewart Title moved to consolidate the two actions.

The plaintiffs and two defendants from the tort action (the vendors) opposed consolidation, preferring the actions be heard together or one after the other.

The court, applying Rule 6.01 of the Rules of Civil Procedure, conducted a costs/benefits analysis.

It rejected the notion of an elevated onus for consolidation and found that ordering the actions to be heard together, with common discoveries and pre-trial, best served efficiency and fairness.

This decision was primarily to avoid significant costs and delays associated with potential crossclaims and pleadings disputes that full consolidation would trigger, particularly regarding Stewart Title's potential subrogation claims.

The motion for consolidation was dismissed, and an order for the actions to be tried together was granted with specific directions for common pre-trial and discoveries.

The plaintiff obtained default judgment for mortgage payment and possession due to the corporate defendant's default, with Mr. Casano as guarantor.

The defendants repeatedly sought stays of enforcement of the writ of possession, citing refinancing efforts and disputing the outstanding balance.

Despite multiple stays granted by the court over 19 months, no refinancing occurred, and the mortgage remained unsatisfied.

The defendants' latest ex parte motion for a further 30-day stay was denied, with the court finding a lack of credibility in their refinancing efforts and noting their failure to formally dispute the balance through proper legal channels.

The court emphasized that further extensions would bring the court's reputation into disrepute.