Robert E. Charney

The defendant/plaintiff by counterclaim, Durham Label Inc., brought a motion seeking costs for wasted discovery time and a further and better affidavit of documents from the plaintiff/defendants by counterclaim (Labow Defendants).

The court dismissed the motion, finding that the request for further documents should be addressed after examinations for discovery, and that a motion for interim costs thrown away is generally not appropriate during the course of a proceeding.

This decision outlines the reasons for sentencing Romario Watts and Lamar Bartley following their convictions for multiple armed robberies and related offences.

Watts was found guilty of six armed robberies, six counts of masking, one attempted armed robbery, and possession of a loaded restricted firearm.

Bartley was found guilty of one armed robbery, one count of masking, and several motor vehicle offences related to fleeing police.

The court applied sentencing principles including denunciation, deterrence, proportionality, and totality, emphasizing the seriousness of firearm offences.

Aggravating factors for Watts included the number of robberies, use of a loaded firearm, and planning.

Mitigating factors for Watts were his age and lack of criminal record.

For Bartley, mitigating factors included his role (not armed) and surrender, while aggravating factors included the dangerous flight from police.

The court also considered pre-trial custody credits and potential immigration consequences for Bartley.

Watts received a global sentence of 12 years, and Bartley received a global sentence of 5 years and 3 months.

The applicant, a first mortgagee, sought the appointment of a receiver over a property due to mortgage default and unpaid realty taxes.

The registered owner consented, but a respondent claiming fraudulent transfer of title opposed the application and sought an adjournment to investigate.

The court dismissed the adjournment request, finding that the applicant's mortgage was valid under the Land Titles Act, as the mortgagor was the registered owner at the time, and the applicant was an innocent party entitled to rely on the register.

The court granted the application, finding it just and convenient to appoint a receiver given the ongoing default, the Mareva injunction on the mortgagor's assets, and the potential insufficiency of property value to cover debts.

The respondent Wolfgang Tyll brought a motion to remove Norbert Tyll as Estate Trustee for the Estate of Waltraud Tyll and as co-Estate Trustee for the Estate of Eric Tyll, and to appoint Alison Lester as Estate Trustee During Litigation for both estates.

The motion also sought a finding of contempt against Norbert Tyll for non-compliance with previous court orders.

The court found that Norbert Tyll failed to comply with prior orders, raising serious concerns about the administration of the estates.

The court granted the removal of Norbert Tyll and the appointment of Alison Lester as Estate Trustee During Litigation but held the contempt motion in abeyance, allowing for potential resolution through the new trustee's actions.

The Bank of Nova Scotia brought a motion for default judgment against Carlos Manuel Rosario Rosado for a professional student line of credit obtained through fraudulent misrepresentation.

The defendant failed to file a statement of defence and was noted in default.

The court found the defendant liable for the outstanding loan amount, awarded punitive damages for the fraudulent conduct, granted an accounting order, and preserved the Bank's right to elect between constructive trust/equitable lien and damages.

The court also made a finding of fraudulent misrepresentation relevant to the Bankruptcy and Insolvency Act.

Damaine Sitladeen was found guilty by a jury of possession of a prohibited firearm, occupying a vehicle with a prohibited firearm, and possession of Fentanyl and Cocaine.

He was also found guilty of possession of a firearm while prohibited due to prior s. 109 orders.

The court considered aggravating factors, including his criminal record involving prior firearm offences and the dangerous combination of drugs and guns.

Mitigating factors included family support.

The court emphasized denunciation and deterrence for firearm offences.

A global sentence of 7 years and 3.5 months was imposed, with credit for pre-trial custody, resulting in a remaining sentence of 5 years and 2 months.

Ancillary orders included a lifetime s. 109 prohibition, a DNA order, and forfeiture of seized property.

Shamar Cole was found guilty by a jury of 19 counts related to drug possession and firearm offences, and subsequently six counts of possessing a firearm while prohibited.

The charges stemmed from his arrest where he discarded a backpack containing large quantities of various drugs (cocaine, fentanyl, crack, methamphetamine) and three loaded, prohibited handguns (two converted to automatic, all with overcapacity magazines) from a condominium balcony.

The Crown sought a global sentence of 17 years, while the Defence argued for 5 years, emphasizing the jury's verdict of simple possession rather than possession for the purpose of trafficking.

The court considered numerous aggravating factors, including the arsenal of weapons, the large quantity of drugs, discarding items in a public place, and the offender's significant criminal record with prior firearm prohibitions and a bail breach.

Mitigating factors included a difficult childhood and harsh pre-trial detention conditions.

The court imposed a global sentence of 10 years, with various counts running concurrently and consecutively, and applied pre-sentence custody credits, resulting in 6 years and 2 months remaining.

Ancillary orders for a lifetime weapons prohibition, DNA, and forfeiture were also granted.

The defendant, Terry Walman, brought a motion to strike the Statement of Claim against him, arguing it disclosed no reasonable cause of action.

The plaintiffs, mortgagors, had sued Walman, the mortgagee's lawyer, alleging breach of contract, improvident sale, and Charter violations related to a power of sale.

The court found that a lawyer owes no duty of care to opposing parties and that allegations of Walman being a 'controlling mind' were bald and unsupported.

Furthermore, Charter rights do not apply to private disputes.

The Statement of Claim was found to lack material facts for a recognized cause of action against Walman.

Leave to amend was denied due to the plaintiffs' failure to address deficiencies despite ample time.

The Crown appealed a stay of proceedings granted to the respondent for unreasonable delay under s. 11(b) of the Charter.

The application judge had included a six-month period during which the respondent pursued a good faith application for leave to appeal to the Court of Appeal in the delay calculation.

The Superior Court of Justice, on appeal, found this to be an error.

The court held that a good faith defence appeal period, being outside the Crown's control, constitutes an "exceptional circumstance" and should be deducted from the total delay.

With this deduction, the total delay was well below the Jordan presumptive ceiling, and thus not unreasonable.

The Crown's appeal was allowed, the stay of proceedings was set aside, and the matter was remitted for trial.

The self-represented moving party in an estate administration dispute sought to appeal and judicially review an interlocutory order of a Superior Court judge.

The Divisional Court struck the application for judicial review, noting it lacks jurisdiction to review decisions of a Superior Court judge.

The court also struck the Notice of Appeal, as the underlying order was interlocutory and required leave to appeal.

The court stayed a paragraph of the underlying order that vaguely permitted the responding party to retrieve personal belongings, finding it unenforceable.

The court also clarified that provisions waiving privilege and confidentiality were subject to the rights of non-parties to raise objections.

The proposed defendants in a medical malpractice action brought a motion to strike a supplementary affidavit sworn by the plaintiffs' lawyer.

The proposed defendants argued the affidavit was an abuse of process, violated rules of professional conduct regarding lawyers acting as witnesses, and constituted improper reply evidence.

The court dismissed the motion, holding that disputes over whether the affidavit attempted to change or repudiate earlier evidence should be determined by the judge hearing the substantive leave motion.

The court also found that Rule 39.02(2) did not preclude the plaintiffs from delivering the supplementary affidavit because they had not cross-examined on an adverse party's affidavit.

The defendants, Julia Fraser and James Lewis, brought a motion for an interlocutory order for possession of a custom-built houseboat, which was the subject of a contract dispute with the plaintiff, 2834277 Ontario Inc. The defendants had paid 70% of the contract price and were registered owners, but the plaintiff was unlawfully detaining the vessel.

The court granted the motion, finding that the defendants met the requirements under section 104 of the Courts of Justice Act and Rule 44.01 of the Rules of Civil Procedure, and that the balance of convenience favoured granting possession to the defendants.

The applicant sought a declaration that a mortgage was paid off and for its discharge, alleging payment to the respondent law firm via third-party bank drafts.

The law firm denied accepting the funds as payment for the mortgage, citing issues with third-party identity verification and authorization.

The court found significant factual disputes not amenable to a short application hearing.

Procedural orders were made, including a timetable for evidence, consolidation with a related action, payment of disputed funds into court, and a ruling that the law firm's counsel, who had sworn an affidavit, could not continue to act as counsel for the corporate respondent.

The client obtained an Order for Assessment of his former solicitor's unpaid accounts but later brought a motion to amend the Order to remove the unpaid accounts, claiming he had not retained the solicitor for those matters.

The solicitor brought a cross-motion to add the client's corporations to the assessment.

The court dismissed the client's motion, finding the belated dispute of the retainer was a subterfuge to delay payment.

The court granted the solicitor's cross-motion to add the corporations, as the client was their directing mind and their exclusion was an oversight.

The court dismissed the plaintiff's action against the Attorney General of Canada as frivolous, vexatious, and an abuse of process under Rule 2.1.01 of the Rules of Civil Procedure.

The plaintiff sought $100 billion for alleged violations related to various judicial orders, claiming they were fraudulent and negligent.

The court affirmed the doctrine of judicial immunity, stating that judges are exempt from civil liability for acts in their judicial capacity, even if alleged to be in bad faith.

It also held that the Attorney General of Canada is not responsible or vicariously liable for judicial decisions, underscoring the independence of the judiciary.

The claim disclosed no reasonable cause of action.

The defendant insurance company brought a motion to strike the plaintiffs' statement of claim regarding a fire insurance policy cancellation.

The court struck the claims alleging Charter breaches and conspiracy, as the Charter does not apply to private entities and conspiracy requires multiple actors.

The court also dismissed the personal plaintiff's action because he lacked standing to sue on a contract issued solely to the corporate plaintiff.

However, the court allowed the corporate plaintiff's breach of contract claim to proceed.

Motions regarding corporate representation and security for costs were adjourned.

The plaintiff, New Haven Mortgage Corporation, brought a motion for default judgment or, alternatively, summary judgment, and leave to issue a writ of possession against the defendants due to a mortgage being in default for sixteen months.

Despite a previous court order setting aside an initial default judgment and requiring the defendants to file a statement of defence, the defendants failed to comply or respond to the summary judgment motion.

The court granted the plaintiff's motion, finding the plaintiff entitled to default judgment due to non-compliance, and alternatively, summary judgment as there was no genuine issue requiring a trial.

A writ of possession for the property was also granted.

The defendants brought a motion to set aside default steps taken by the plaintiff and to strike, stay, or dismiss the action.

The court found that the plaintiff's counsel acted improperly in noting the defendants in default, as the defendants had promptly indicated their intention to bring a motion to strike/stay the action, which constitutes a defence.

The court also determined that the plaintiff's action was duplicative of an existing lien action by Prompt Builders Inc. and violated the corporate separateness principle (*Foss v. Harbottle*), as the plaintiff, as a sole shareholder, was suing for damages owed to the corporation.

The court granted the motion, setting aside the noting in default and dismissing the plaintiff's action, without prejudice to the plaintiff's right to amend the original lien action to include any personal claims.

Costs were awarded to the defendants on a substantial indemnity basis for the default issue and partial indemnity for the rest, totaling $8,500.

The plaintiff, Michael Levinson, brought a motion for summary judgment to enforce a second mortgage against the defendant, Janina Joseph-Walker, due to her default on payments.

The mortgage matured in August 2022, and no payments had been made since May 2022.

The defendant argued for a stay of proceedings, citing ongoing fraud litigation against other parties involved in the mortgage transaction, but the plaintiff was not implicated in the alleged fraud.

The court, applying the Hryniak framework for summary judgment, found no genuine issue requiring a trial.

The defendant failed to file responding material or demonstrate a valid defence.

The court granted summary judgment, including possession of the mortgaged property and leave to issue a writ of possession, with a provision to hold in trust any sale proceeds otherwise owing to the parties involved in the alleged fraud.

The applicant, a declared vexatious litigant, sought leave under s. 140(3) of the Courts of Justice Act to institute an application for judicial review against the Lake Simcoe Regional Conservation Authority and the Attorney General of Ontario.

The proposed judicial review sought to challenge his 2018 convictions under the Conservation Authorities Act and a subsequent restoration order.

The court dismissed the application, finding that the proposed judicial review was an improper collateral attack on previous decisions and an abuse of process, and that the applicant failed to demonstrate reasonable grounds for the proceeding.