Roger Chown

The plaintiff brought a motion to strike the reasons of a previous judge from the public record, alleging the previous order was tainted by fraud regarding an affidavit of service for an amended statement of defence.

The court found no evidence of fraud, noting the plaintiff failed to prove he did not receive the document and misinterpreted email delivery receipts.

The court further held it lacked jurisdiction under Rule 59.06 to strike another judge's reasons from the public record.

The motion was dismissed with no costs.

The offender, Taran Hibma, was found guilty of criminal negligence causing death after inserting lit sparklers into a sleeping cabin, causing a fire that killed Genesis Young, 17.

The court considered principles of sentencing, including denunciation, general deterrence, and rehabilitation, particularly given the offender's youth and substance abuse issues.

Despite arguments for a conditional sentence, the court determined that a custodial sentence was necessary to adequately address denunciation and general deterrence, while also considering rehabilitation.

Hibma was sentenced to 18 months in custody followed by 18 months of probation with conditions aimed at addressing his substance abuse.

The plaintiffs sought summary judgment for $75,000, representing the cost incurred to extend the closing of a property they were purchasing, due to the defendants' failure to close on a related sale.

The defendants admitted breach of contract but disputed the remoteness and mitigation of damages.

The court applied principles of remoteness, particularly the Hadley v. Baxendale rule, and found that it was reasonably foreseeable for sellers to rely on proceeds from one sale to fund another, even if not explicitly communicated.

The court also found that the plaintiffs adequately mitigated their damages by paying the extension fee, which avoided potentially higher costs.

Summary judgment was granted in favour of the plaintiffs for $75,000.

The applicant brought a motion to enforce a purported full and final settlement, which had been incorporated into a consent order, concerning spousal support, equalization, and the return of a vehicle.

The respondent opposed the proposed distribution of funds and sought transfer of the vehicle to her.

The court dismissed the motion to enforce, finding genuine issues requiring a trial.

Key issues included whether all essential terms were agreed upon (specifically regarding the vehicle) and whether the settlement was a result of unilateral or mutual mistake, particularly concerning a significant unilateral withdrawal from a joint line of credit by the applicant.

The court emphasized that the failure of parties to define the basis for relief requested was a sufficient ground for dismissal.

The respondent brought a Rule 14B motion seeking reconsideration of a spousal support order, specifically challenging the finding that he would be eligible for a full pension in 2025, alleging a mistake.

The applicant opposed the motion and sought costs.

The court dismissed the respondent's motion, finding no mistake in the original order that would warrant reconsideration under Rule 25(19), stating any perceived error would require an appeal.

The court then proceeded to determine the costs for both the dismissed 14B motion and the underlying application (trial), assessing success based on the parties' positions and settlement offers, ultimately awarding the applicant partial indemnity costs for both.

The applicant, Ahman Ottley, sought to exclude evidence (drugs and a gun) obtained from searches of his car and residences, alleging breaches of his Charter rights under sections 8 (unreasonable search or seizure) and 9 (arbitrary detention).

The court addressed a preliminary issue regarding the disclosure of confidential informant (CI) information, finding that the judicial summary provided was sufficient for the defence to make full answer and defence.

The court then found that the police had reasonable and probable grounds for Mr. Ottley's arrest, based on CI information, police surveillance, and a prior "found in" incident.

Consequently, his section 9 rights were not violated.

The search of his car incident to arrest was deemed lawful and reasonable, as it was connected to the investigation, thus not violating his section 8 rights.

Finally, the searches of his residences, authorized by a warrant, were also found to be reasonable, as the issuing justice had sufficient grounds to believe evidence of drug trafficking would be found at those locations.

As no Charter breaches were found, the application to exclude evidence was dismissed.

This seven-day trial addressed spousal support, including entitlement, quantum, retroactivity, lump sum, and duration, following a 24-year marriage.

The court found the applicant entitled to compensatory support due to career sacrifices and her primary caregiver role.

It determined the income for both parties, awarded retroactive support from June 1, 2020, and ongoing monthly support of $1,900.

However, the request for a lump sum future support award was denied due to the unpredictable future means and needs of the parties.

Indefinite support was deemed appropriate given the long duration of the marriage.

The court issued a costs endorsement for two consolidated applications concerning beneficial ownership of a property.

The initial applications sought declarations of 100% ownership by each party.

The court found a 75.2% interest for Gandhi and 24.8% for Fajebe, ordering the property sold.

Neither party's offers to settle triggered Rule 49.10 costs consequences as they contained non-ordered terms or were not easily comparable to the judgment.

Considering Rule 57.01 factors, including delays and abandoned claims, the court found both parties largely failed to meet their onuses.

Despite Gandhi being "less unsuccessful" the court ordered no costs, finding divided success and no operative offer to settle.

The plaintiffs brought a motion for summary judgment after the defendant buyer repudiated a residential real estate agreement within hours of acceptance and failed to pay the $40,000 deposit.

The plaintiffs subsequently sold the property to another buyer for $12,473 less than the defendant's agreed price.

The court conducted a comprehensive review of the law on deposits and relief from forfeiture, concluding that the Stockloser test applies to real estate deposits.

The court found that the plaintiffs were entitled to the full $40,000 deposit, as the defendant's breach was not accompanied by unconscionability that would justify relief from forfeiture, despite the deposit exceeding the actual damages.

This consolidated trial addressed the ownership of a property, with both parties seeking declarations of ownership.

Fajebe claimed Gandhi held the property in trust for him after a sale, while Gandhi asserted an outright sale with a lease-back arrangement.

The court rejected the express trust claim but found an implied trust based on Fajebe's initial equity contribution.

The property was ordered to be sold, with net proceeds divided 75.2% to Gandhi and 24.8% to Fajebe, reflecting their proven contributions.

The court also found the lease unenforceable and ordered Fajebe to make monthly payments from the trial start until the property's sale.

The parties resolved all issues in their divorce except for the choice of school for their four-year-old child.

The applicant father proposed a school in Kincardine, while the respondent mother proposed a school in Port Elgin.

The court weighed several factors, including commute times, religious instruction, and the ability to walk to school.

The court found that the mother's proposal offered significantly less overall transit time for the child and avoided potential conflicts regarding religious instruction.

The court ordered that the child be enrolled in the school proposed by the mother.

The applicant sought vacant possession of his property from the respondent, his common-law spouse, who opposed the motion and sought interim spousal support, arguing their cohabitation agreement was void or unenforceable.

The court found a triable issue regarding the agreement's enforceability and the respondent's prima facie entitlement to support based on need.

The court ordered the respondent to vacate the property by a specific date and ordered the applicant to pay a lump sum towards past spousal support and ongoing monthly interim spousal support.

The offender was convicted by a jury of two counts of sexual assault against his great-great nephew, who was between three and five years old at the time.

The offences involved anal intercourse and a significant breach of trust.

The Crown sought a 14-year consecutive sentence, while the defence proposed four to six years concurrent.

The court emphasized denunciation and deterrence, rejecting the offender's expression of remorse due to his false testimony at trial.

Applying the principle of totality, the court imposed a global concurrent sentence of eight years in custody, along with mandatory weapons, DNA, non-communication, and SOIRA orders.

The plaintiff, an elderly woman, claimed recovery of money alleged to have been loaned to her daughters and son-in-law.

The defendants asserted the money was a gift.

The court applied the presumption of resulting trust, placing the onus on the defendants to prove a gift.

Considering the plaintiff's unreliable testimony, inconsistencies with her pleading, and credible evidence from a granddaughter, the court found that the defendants successfully rebutted the presumption, establishing that the payments were intended as gifts.

The action was dismissed.

The respondent moved to set aside an order obtained by the applicant through an uncontested trial, arguing that he believed mediation was ongoing and was not properly notified.

The applicant opposed, but the court granted the respondent's motion, finding his explanation for default adequate and noting the applicant's conduct in proceeding to an uncontested trial without proper notice or clear communication about the end of mediation was problematic.

The court emphasized the importance of deciding cases on their merits and ordered the applicant to pay costs.

The applicant, Tracie L. Galbraith, brought a trust claim against the respondent, Jeremy M. Kinsley, seeking a share of the home he purchased, following their 10-year cohabitation and the birth of three children.

The court found that the parties engaged in a joint family venture and that the respondent was unjustly enriched by the applicant's contributions, which included domestic services and financial support that enabled the respondent to build equity in the property.

A monetary award of $191,000 was granted to the applicant, representing one-half of the adjusted increase in the property's equity, applying a "value-survived" approach.

The Public Guardian and Trustee (PGT), acting on behalf of the plaintiff, brought a motion to re-open the case for the limited purpose of providing additional argument on the presumption of resulting trust, an issue they believed was not adequately addressed at trial.

The court allowed the motion, finding no prejudice to the defendants, and ordered the parties to provide additional written submissions on the specific issue.

This motion concerned competing applications between two sets of shareholders of a family farm corporation regarding the enforcement of a settlement agreement for the division of corporate assets.

The agreement included a 'tax condition' requiring each party's tax counsel approval in their sole discretion.

One party refused to waive this condition, citing tax uncertainties.

The court analyzed the duty to exercise contractual discretion in good faith, finding that the refusal was not a good faith exercise of discretion, as the concerns were abstract or previously known.

The court enforced the minutes of settlement and further ruled that a general increase in milk quota, not explicitly addressed in the settlement, should be considered an 'other asset' of the corporation to be divided equally, rather than solely benefiting the party receiving the quota.

This endorsement addresses a procedural matter where the parties sought an adjournment on consent to permit negotiation, following an issue with the appointment of a litigation guardian.

The court acknowledged the request but indicated its intention to proceed with a hearing to establish a timetable for the resolution of the matter, potentially incorporating time for negotiations.

The plaintiffs, a son and daughter-in-law, took over the operation of the defendants' family dairy farm based on an understanding that they would eventually acquire the farm and milk quota on favourable terms.

After six years of operating the dairy and making significant investments of time and money, the relationship broke down and the plaintiffs were forced to leave.

The plaintiffs sued for unjust enrichment and proprietary estoppel.

The court found that the defendants were unjustly enriched by certain improvements to the property and that the elements of proprietary estoppel were met because the plaintiffs reasonably relied on the defendants' assurances to their detriment.

The court awarded the plaintiffs $405,000 in damages, while allowing $2,000 on the defendants' counterclaim for property damage.