R. Cary Boswell

The applicant, an internationally trained dentist, sought judicial review of a decision by the National Dental Examining Board's Appeals Committee dismissing his appeal of a failing grade on his clinical skills assessment.

The applicant argued the Committee breached its By-Laws and procedural fairness by failing to hold an oral hearing and failing to provide a post-evaluation review.

The Divisional Court dismissed the application, finding the Committee's decision reasonable as the applicant failed to provide evidence of a procedural irregularity that would trigger an oral hearing, and failed to prove he was denied a post-evaluation review.

The defendants moved to set aside a default judgment obtained by the plaintiff in a mortgage enforcement action and sought an accounting of disputed amounts.

The court found the defendants' explanation for default and promptness in moving to set aside the judgment to be weak.

While the defendants had arguable defenses regarding certain fees, these represented a small fraction of the total.

The court declined to set aside the default judgment entirely but exercised its jurisdiction to vary it, disallowing a three-month bonus interest penalty as an unenforceable penalty clause, but upholding a management fee after adjusting the principal amount.

The plaintiff sought a constructive trust over the deceased's home and vehicle, claiming unjust enrichment arising from their common law relationship and joint family venture.

The court found that while the parties were in a joint family venture and the deceased was enriched by the plaintiff's contributions to the property and caregiving for his family, the plaintiff had been adequately compensated.

She received approximately $250,000 through beneficiary designations upon his death and had exclusive use of the home and vehicle for over two years.

The plaintiff's claim was dismissed, and the estate's counterclaim for possession of the home and vehicle was granted, though occupation rent was denied.

The accused was charged with drug trafficking and weapons offences following a traffic stop initiated based on a tip from a confidential informant.

During the stop, the accused was arrested for possession of a prohibited weapon and subsequently subjected to a roadside strip search, which yielded cocaine.

The accused brought an application to exclude the evidence under s. 24(2) of the Charter, alleging breaches of his ss. 8, 9, 10(a), and 10(b) rights.

The court found that while the initial detention and arrest were lawful, the roadside strip search violated s. 8, and the police breached ss. 10(a) and 10(b) by failing to promptly advise the accused of the reasons for his detention and delaying his access to counsel.

Applying the Grant framework, the court concluded that the admission of the evidence would bring the administration of justice into disrepute.

The evidence was excluded, and the accused was acquitted.

The accused was tried on a sexual assault charge arising from sexual activity at an after-prom party.

The central issues were consent and whether the accused honestly but mistakenly believed there was communicated consent.

The court found both the complainant and the accused generally credible and reliable, and concluded the conflicting accounts could not be resolved in favour of the Crown beyond a reasonable doubt.

Applying the W.(D.) framework, the accused's evidence raised a reasonable doubt and the accused was acquitted.

Following the successful summary judgment motions of seven defendant physicians in a medical negligence action, the court assessed the defendants' costs.

The defendants sought $78,639.56 on a partial indemnity basis.

The court fixed the costs at $68,694.86, finding the amount claimed for the motions slightly disproportionate to their complexity.

However, recognizing the genuine impecuniosity of the plaintiffs and the tragic circumstances of the underlying case, the court stayed the enforcement of the costs award pending the final disposition of the remaining claims against the other defendants.

During jury selection for a drug trafficking trial, the defence brought three motions regarding the composition of the jury.

The defence sought to strike the predominantly white jury panel for lacking racial diversity, requested the use of the newly amended s. 633 stand-aside discretion to ensure gender balance, and asked to stand aside a nurse for alleged partiality.

The court dismissed all three requests, holding that random selection satisfies the representativeness requirement, that the stand-aside discretion should not be used to manipulate gender balance, and that there was no objective evidence of partiality regarding the nurse.

The defendant brought a s. 8 Charter motion to exclude evidence seized under a search warrant, arguing procedural flaws related to the use of the telewarrant process and substantive flaws regarding the sufficiency of the Information to Obtain (ITO).

The court dismissed the motion, finding that the telewarrant procedure was justified due to impracticability, not necessarily urgency, and that the ITO, when read holistically, provided sufficient grounds for the warrant's issuance despite minor imperfections.

Consequently, the seized evidence was admissible.

During a trial for drug trafficking and weapons offences, the defence brought an application under s. 24(1) of the Charter to exclude a full cell phone extraction report due to late disclosure by the Crown.

The Crown had disclosed a partial report earlier but only provided the full report on the day evidence was to commence.

The court found that while the full report should have been disclosed earlier, the late disclosure did not warrant exclusion of the evidence.

The court held that a one-week adjournment was sufficient to allow the defence to review the report and attenuate any prejudice, ensuring the accused's right to make full answer and defence under s. 7 of the Charter.

The accused brought a Garofoli application challenging the validity of a search warrant issued for several cellular telephones seized from his hotel room.

The accused argued that the Information to Obtain (ITO) was rife with errors and recklessly misled the issuing justice regarding his identification as a theft suspect.

The court found that while the ITO contained drafting deficiencies and inaccuracies, they were the result of inexperience rather than an intention to mislead.

After excising the inaccurate portions and evidence obtained unconstitutionally, the court concluded the remaining evidence of drugs, scales, and a prohibited weapon in plain view provided sufficient reasonable and probable grounds to support the warrant.

The application was dismissed.

The defendant brought a pre-trial application to exclude evidence seized from his hotel room, alleging breaches of his rights under ss. 8, 9, 10(a), and 10(b) of the Charter.

Police officers investigating a theft knocked on the door of the hotel room.

When the door was opened, an officer observed brass knuckles in plain view and saw the defendant dart out of sight, prompting a warrantless entry for officer safety.

Inside, the officer saw the defendant with a bag of drugs and arrested him.

The court found that while the defendant had a reasonable expectation of privacy, the knock was not a search and the entry was a justified safety search.

The court found breaches of the defendant's s. 10(b) right to counsel and an overbroad search incident to arrest, but concluded under s. 24(2) that the evidence seized in plain view should not be excluded.

The accused, charged with drug trafficking and weapons offences, brought a pre-trial Garofoli application challenging the validity of a search warrant for his cellular telephones.

As part of a sub-facial challenge, the accused sought leave to cross-examine the police affiant of the Information to Obtain (ITO).

The court applied the Garofoli threshold test and granted leave to cross-examine the affiant on specific areas probative of whether the issuing justice was recklessly misled, while excluding cross-examination on widely known facts such as the association of weigh scales with drug trafficking.

The plaintiffs brought medical negligence claims against numerous physicians and a hospital following the death of a patient from an acute aortic dissection.

Seven of the defendant physicians moved for summary judgment, arguing the plaintiffs failed to produce expert evidence establishing the applicable standard of care, breach, and causation.

The court granted the summary judgment motions, finding that the plaintiffs' expert reports did not establish the essential elements of negligence against the moving defendants, and that this was not a clear case where expert evidence could be dispensed with.

The court also granted the plaintiffs' counter-motion to consolidate the actions and serve a jury notice, but dismissed their request for production of original hospital records, as those records had been destroyed in accordance with hospital policy after being digitized.

The defendants brought a motion to set aside a default judgment obtained by the plaintiffs in a mortgage enforcement action.

The defendants' counsel had served a Notice of Intent to Defend and requested a brief indulgence due to the defendants' cognitive disabilities, but the plaintiffs' counsel obtained default judgment without replying or providing notice.

The court found the plaintiffs' counsel's actions to be unprofessional and set aside the default judgment as of right.

Alternatively, the court found the defendants had an arguable defence on the merits, alleging unconscionability, undue influence, and deficient independent legal advice regarding the mortgage.

The motion was granted, and costs were awarded to the defendants on a substantial indemnity basis.

The offender was convicted by a jury of sexual assault, sexual exploitation, and sexual exploitation of a person with a disability against a developmentally challenged male.

The court applied the Kienapple rule to conditionally stay the sexual assault conviction but upheld the two exploitation convictions.

Emphasizing denunciation and deterrence for the severe breach of trust and invasive abuse, the court sentenced the offender to 5 years in the penitentiary for sexual exploitation and a concurrent 3 years for sexual exploitation of a person with a disability, along with ancillary orders.

The accused was charged with luring a minor following an undercover police sting operation.

Upon arrest, police seized his cell phone and subsequently obtained two warrants to extract and search its data.

The accused brought a pre-trial motion to exclude the cell phone evidence, alleging multiple breaches of his section 8 Charter rights regarding the warrants' execution and the police's failure to report the seized data back to a justice of the peace.

The court found a section 8 breach due to the failure to report the seized data under section 489.1 of the Criminal Code, but declined to exclude the evidence under section 24(2) of the Charter.

The court also granted the Crown's application to adduce text messages from the phone as bad character evidence, finding their probative value regarding the accused's ability to communicate in English outweighed any prejudicial effect.

The defendant, Sivaratnam Sinnappillai, brought a motion for a directed verdict at the close of the Crown's case in a trial for child luring and inviting sexual touching under s. 172.1 of the Criminal Code.

The defendant argued there was insufficient evidence to establish the first essential element of the offences, specifically the identity of the communicator.

The court dismissed the application, finding that there was sufficient circumstantial evidence, even without relying on the seized cell phone, for a reasonable jury to infer the defendant's guilt.

Issues regarding the continuity of the cell phone were deemed to go to the weight of the evidence, not its admissibility at this stage.

This ruling addresses the relevance of evidence concerning a sexual assault complainant's lack of avoidant behaviour towards the accused.

During a trial for sexual assault and exploitation, defence counsel sought to argue that the complainant's continued association with the accused undermined his credibility.

The Crown objected, asserting this argument relied on impermissible myths and stereotypes about how sexual assault victims should behave.

The court upheld the Crown's objection, ruling that such a submission was based on a generalized, stereotypical notion of victim behaviour and was irrelevant in this specific case, particularly given the complainant's intellectual disability and suggestibility.

The court ruled on the admissibility of the defendant's prior consistent statement, a denial made when first confronted with sexual assault allegations.

The Crown objected, arguing the statement was not spontaneous and lacked a reliable record.

The court found the statement admissible under the `Edgar` exception, emphasizing its spontaneity upon initial confrontation, and also for trial fairness to complete the narrative initiated by the Crown.

The jury will be instructed on its limited use for credibility and circumstantial evidence, not for the truth of its contents.

The defendant, D.M., faced charges of sexual exploitation of a person with a disability, sexual exploitation, and sexual assault.

At the close of the Crown's case, defence counsel applied for directed verdicts of acquittal on the two sexual exploitation charges.

The court applied the Shephard test, which requires determining if there is any evidence upon which a reasonable jury, properly instructed, could return a guilty verdict.

The core issue was whether the Crown had adduced sufficient evidence to establish a relationship of trust, dependency, or an exploitative relationship between D.M. and the complainant (W.C.), an intellectually disabled young man.

The court found ample evidence in the record to support a jury's conclusion that such a relationship existed, given W.C.'s significant intellectual disability, vulnerability, and the power imbalance in the relationship.

Consequently, the application for directed verdicts was dismissed.