Renee M. Pomerance

The Niagara Escarpment Commission applied for judicial review of a Joint Board decision granting conditional approval to Walker Aggregates Inc. to develop a quarry in the Niagara Escarpment Plan area.

The applicant argued the Board failed to properly apply the Niagara Escarpment Plan, improperly delegated approval of an Adaptive Management Plan to the Minister of Natural Resources, and erred in assessing noise impacts.

The Divisional Court dismissed the application, finding the Board's decision reasonable, as it correctly applied the relevant planning documents, did not improperly delegate its authority, and reasonably assessed environmental and noise impacts.

During a jury trial for sexual assault, defence counsel sought to use Sandro Boticelli's painting 'Calumny of Apelles' as a visual prop during his closing address to illustrate the theme of false accusation.

The trial judge ruled that the painting could not be used, finding that its depiction of women as symbolic representations of slander, ignorance, suspicion, fraud, and conspiracy risked resurrecting offensive myths and stereotypes about female complainants.

The court concluded that the potential for prejudice and distortion of the fact-finding process substantially outweighed any legitimate persuasive impact.

The appellant, a lawyer whose licence was revoked for participating in mortgage fraud, appealed the Law Society appeal panel's decision affirming the revocation.

He argued that the hearing panel denied him procedural fairness by refusing an adjournment on medical grounds and later granting an adjournment on the condition that he refrain from practising law.

The Divisional Court dismissed the appeal, finding that the hearing panel properly exercised its discretion in assessing the contradictory medical evidence and balancing the public interest against the appellant's requests.

The tenant appealed a Landlord and Tenant Board decision awarding the landlord $10,439.50 for damages to the rental unit, including a destroyed kitchen countertop.

The tenant argued the Board erred by relying on hearsay evidence in the form of repair estimates and by double-counting expenses.

The Divisional Court dismissed the appeal, finding that hearsay evidence is permitted under the Statutory Powers Procedure Act and that the Board reasonably concluded the countertop needed replacement without double-counting.

The applicant sought judicial review of an Assessment Review Board decision directing a rehearing of a property tax assessment appeal.

The Divisional Court held that the matter should proceed as an appeal under s. 43.1 of the Assessment Act rather than a judicial review, to preserve the court's gate-keeping function.

Converting the application to an appeal, the court granted leave and allowed the appeal, finding the Board erred in law by concluding there was a procedural fairness violation.

The Board had admitted the landowner's evidence but gave it no weight, which is a matter of evidentiary weight, not procedural fairness.

Two truck drivers were charged with importing cocaine and possession of cocaine for the purpose of trafficking after border officers discovered 45 kilograms of cocaine hidden in boxes of peppers in a commercial shipment.

The Crown relied on circumstantial evidence, including driver logs and an unexplained stop during the trip, to argue that the accused concealed the drugs after loading the cargo in California.

The defence pointed to irregularities in the loading process captured on video, the absence of forensic evidence linking the accused to the boxes, and the possibility that the drugs were inserted before the truck was loaded.

The court held that the Crown failed to prove knowledge and control beyond a reasonable doubt.

Both accused were acquitted.

The applicant sought judicial review of a decision by the Human Rights Tribunal of Ontario summarily dismissing his complaint against the Toronto Police Service and Toronto Police Services Board.

The applicant alleged discrimination based on mental disability, race, and country of origin, as well as threats of reprisal.

The Divisional Court applied the reasonableness standard of review and found that the Tribunal reasonably concluded there was no evidence of discrimination or reprisal.

The court also found no breach of procedural fairness or bias.

The application for judicial review was dismissed with costs.

The applicant sought judicial review of the respondent transit authority's decision to enter into a contract for diesel multiple units for an air-rail link.

The applicant argued the respondent exceeded its jurisdiction by failing to conduct an electrification feasibility study and improperly accepting ministerial direction.

The Divisional Court dismissed the application, finding that the decision to enter a commercial contract did not constitute a 'statutory power of decision' under the Judicial Review Procedure Act as it did not determine any legal rights.

Furthermore, the court held that the respondent acted within its statutory authority under its governing legislation.

During a murder trial, the court was required to determine the admissibility of a statement made by the accused to police after earlier statements had been excluded due to a breach of s. 10(a) of the Charter.

The defence argued the later statement was tainted by the earlier constitutional breach and was not voluntary.

Applying the analytical framework for tainted statements and the common law confessions rule, the court held that the earlier breach had been cured by intervening events, including the accused’s arrest for murder and multiple opportunities to consult counsel.

The court further found the police interview tactics did not constitute inducements or oppression and did not overbear the accused’s will.

The statement was proven voluntary beyond a reasonable doubt and was admissible.

Two offenders pleaded guilty to armed bank robberies committed in Windsor and four additional robberies in Toronto involving firearms, disguises, and violence against bank employees.

The parties jointly proposed a global sentence of 10 years’ imprisonment.

The court held that although a higher sentence in the range of 12 to 15 years would otherwise be fit given the seriousness and multiplicity of the offences, the joint submission did not meet the high threshold required to reject it.

The court also considered the application of the Truth in Sentencing Act and the proper credit for pre‑sentence custody under s. 719 of the Criminal Code.

Credit was granted at 1:1 for the period before the guilty pleas and 1.5:1 for the period after the pleas due to sentencing delay beyond the offenders’ control.

The accused was charged with importing cocaine and possession for the purpose of trafficking after 45 kilograms of cocaine were found in his transport truck at the border.

He brought an application for a stay of proceedings under s. 11(b) of the Charter, arguing that the delay of nearly three years from the time of the charge to the trial was unreasonable.

The court analyzed the periods of delay, attributing some to late disclosure by the Crown and institutional delay, but also noting delay caused by the defence and a co-accused.

The court concluded that the state-attributable delay of 18.5 months did not meaningfully offend the Morin guidelines and was outweighed by the strong public interest in trying a serious offence on its merits.

The application was dismissed.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission suspending its liquor licence for 14 days for permitting drunkenness.

The appellant raised several grounds of appeal, including allegations of procedural fairness, improper admission of evidence, incorrect burden of proof, improper adverse inference, and failure to provide adequate reasons.

The Divisional Court dismissed the appeal, finding no merit to any of the grounds and concluding that the Board's reasons, while sparse, were sufficient.

The appellants appealed a decision declining to certify a class action regarding an alleged design defect in digital cameras that caused an 'E18' error message.

The motions judge had struck the evidence of the appellants' proposed expert on the basis that he lacked the necessary qualifications in camera design.

The Divisional Court upheld the motions judge's decision, finding no error in the exclusion of the expert evidence or the conclusion that there was no basis in fact for the common issue.

The appeal was dismissed with costs awarded to the respondents.

The applicants sought judicial review of the Minister of Revenue's decision denying their request for an extension of time to file Retail Sales Tax returns.

The applicants had been assessed for unpaid taxes and failed to file a Notice of Objection within the 180-day limitation period.

Seven years later, they requested an extension to file late returns.

The Divisional Court dismissed the application, finding it moot because the four-year limitation period for the Minister to reassess taxes had expired, meaning an extension would have no practical effect.

The court also declined to exercise its discretion because the applicants had failed to utilize the statutory remedies available to them.

The Aboriginal offender pleaded guilty to sexual assault and robbery after breaking into a 62-year-old victim's home.

The sentencing judge addressed systemic issues regarding the availability of Gladue reports in Windsor, Ontario, noting the offender had to be transferred to Sarnia to obtain one.

Applying Gladue principles and considering the offender's severe background of trauma and systemic disadvantage, alongside the extreme gravity of the home invasion and sexual violence, the court imposed a sentence of 9 years in the penitentiary.

The Crown's request to delay parole eligibility under s. 743.6(1) was denied.

During a murder trial, the Crown sought to admit videotaped out‑of‑court statements made by a witness to undercover officers in a “Mr. Big” operation as substantive evidence under the principled hearsay exception.

The witness recanted or professed lack of memory during cross‑examination under s. 9(2) of the Canada Evidence Act.

The court held that although necessity was established, the Crown failed to demonstrate threshold reliability on a balance of probabilities.

The witness’s repeated claims of memory loss prevented meaningful cross‑examination and undermined the jury’s ability to assess reliability.

Additionally, the inducements and incentives inherent in the “Mr. Big” scenario raised serious concerns about the trustworthiness of the statements.

The videotaped statements were therefore ruled inadmissible as substantive evidence.

In a voir dire during a murder prosecution, the accused sought to exclude three police statements on the basis of Charter violations.

Police had told the accused he was being questioned in relation to a missing persons investigation when they in fact believed the investigation concerned homicides.

The court found this mischaracterization violated s. 10(a) of the Charter by failing to properly inform the accused of the reason for his detention.

Applying the framework in R. v. Grant, the court held the breach was serious, significantly affected the accused’s Charter-protected interests, and that exclusion would not undermine adjudication on the merits.

Statements given during the July 2008 interviews were excluded, while a later statement given after arrest for murder was ruled admissible.

The court issued an amendment to its original judgment released on July 28, 2011, to correct an error regarding the place where the appeal was heard.

The original judgment incorrectly stated the appeal was heard in London, and was amended to reflect that it was heard in Hamilton.

The appellants were entirely successful on their appeal and sought costs.

The court awarded the appellants costs fixed at $1,000 for the motion for leave to appeal and $4,500 for the appeal, noting that the outcome was more favourable than an offer to settle made to them by the respondents.

The court found it was unreasonable for the respondents to oppose the appeal given the lack of reasonable prospect of success.

The appellants appealed an interlocutory order granting the respondents unfettered access to a residential property to retrieve personal belongings.

The motions judge had noted the appellants in default and refused to allow their counsel to make submissions on a motion to set aside the default or on the merits of the respondents' motion.

The Divisional Court allowed the appeal and set aside the order, finding that the motions judge erred in law and denied procedural fairness by refusing to hear counsel, misinterpreting Rule 19.02, granting relief that far exceeded the notice of motion, and failing to provide reasons.