Roger Chown

The respondent brought a motion to amend his answer to claim occupation rent after the parties had reached a partial settlement on spousal support and the sale of the matrimonial home.

The applicant opposed, arguing that the proposed amendment would cause non-compensable prejudice and was an attempt to circumvent the partial settlement.

The court found that the issues of occupation rent, matrimonial home sale, and spousal support were interconnected and that allowing the amendment would undermine the benefits of partial settlements.

The respondent's motion to amend his answer to claim occupation rent was dismissed, while other amendments were permitted.

The court also ordered the applicant to sign a Miglin release as per the partial settlement, with consequences for non-compliance.

This motion concerned the sale of five jointly owned farm properties following a marital breakdown.

The applicant sought an order for sale, while the respondents argued that section 11 of the Family Law Act prohibited such a sale for an operating farm.

The court determined that section 11 of the Family Law Act applies to jointly owned farms and that the "home farm" was indispensable to the operation and should not be sold.

However, the court found that the other jointly owned properties could be sold without seriously impairing the farm's operation, and that reasonable alternative methods existed to satisfy any equalization award.

The accused, Jasper Dieter, brought an application to quash a search warrant for his residence, arguing that the Information to Obtain (ITO) lacked sufficient grounds for its issuance.

The court reviewed the ITO, including redacted portions and information from confidential informants and Crime Stoppers tips, applying the "reasonable grounds to believe" standard.

Despite some criticisms regarding dated information, conclusory statements, and surveillance not fully corroborating expectations, the court found that the totality of the circumstances, including detailed information from multiple sources and corroboration of neutral details, provided the justice of the peace with a strong basis to issue the warrant.

The application to quash the search warrant was dismissed.

The accused, Soheyl Tahan, was charged with sexually assaulting the complainant.

The complainant had no memory of the events due to severe intoxication, and the accused claimed memory loss.

The court found the complainant lacked the capacity to consent due to extreme intoxication, specifically her inability to understand the identity of her sexual partner.

The court also found the accused's claims of memory loss and intoxication to be fabricated, indicating a guilty mind.

Tahan was found guilty.

This decision details the findings from the first portion of a bifurcated trial in divorce proceedings, primarily addressing the valuation of farm properties and farm equipment.

The court also considered the applicant's motion for partition and sale of jointly owned properties.

The judgment provides detailed analysis of expert appraisal methodologies, including fair market value, depreciation, comparable sales, and the influence of factors like drainage and solar panels on property values.

The court made specific findings on the values of seven farm properties and various pieces of equipment as of the marriage, separation, and trial dates.

The decision on the motion for partition and sale was reserved, pending further submissions from the parties regarding the impact of a recent case.

In a sexual assault trial arising from a first in-person encounter after online communications, the Crown alleged non-consensual sexual activity on three theories: forceful conduct during oral sex, intentional anal penetration, and continuation of intercourse after withdrawal of consent.

The court reviewed the law of sexual assault, subjective consent, withdrawal of consent, and the accused's mens rea under the Criminal Code and the governing authorities on consent and credibility.

Applying the W.(D.) framework and the principles in Ewanchuk and related cases, the court found a reasonable doubt on whether the alleged head touching occurred, whether the anal penetration was intentional, and whether the complainant subjectively ceased consenting to the subsequent vaginal intercourse.

The accused was acquitted.

The applicant brought a guardianship application regarding one of the respondents, which was dismissed.

The respondents sought costs.

The court found no reason to depart from the normal rule that costs follow the event.

The court awarded partial indemnity costs to the respondents, fixing the costs at $56,224.11 for one respondent and $44,000 for the other, payable by the applicant in three instalments.

The defendants in a personal injury action brought a motion for a further examination for discovery of the plaintiff, relying on surveillance footage that allegedly showed the plaintiff working despite his discovery evidence to the contrary.

The defendants argued the plaintiff had a duty to correct his answers under Rule 31.09 or that the surveillance constituted a material change in circumstances.

The court dismissed the motion, finding that the plaintiff maintained his answers were correct and that the generation of surveillance evidence did not constitute a change in circumstances justifying further discovery.

The parties disputed the funding of their children's post-secondary education.

The children had significant RESPs and large informal trust funds gifted by their maternal grandfather.

The applicant father argued the children had the means to fully fund their education, while the respondent mother argued the parents should still contribute.

The court rejected both all-or-nothing positions, ordering that education costs be funded first by scholarships and RESPs, followed by a $7,500 annual contribution from the parents shared proportionally to their incomes, with the children funding the balance from their own means.

Two competing applications were brought by family members.

The applicant daughter applied for guardianship over her 90-year-old mother and challenged the validity of her mother's new will, powers of attorney, and the transfer of her home to her other daughter, alleging undue influence and lack of capacity.

The mother applied to remove the applicant daughter as a joint account holder on her investment account.

The applicant daughter moved to consolidate the applications into an action requiring a trial.

The court found that the mother's capacity was the controlling issue and could be decided on the application record without a trial.

Relying on expert psychiatric evidence and the mother's own testimony, the court concluded that the mother had the requisite capacity to manage her property and personal care, grant powers of attorney, make a will, and make an inter vivos gift.

Because the mother had capacity and the impugned instruments were executory, the court declined to direct a trial on the issue of undue influence.

The applicant daughter's application was dismissed, and the mother's application to remove the applicant daughter from the joint account was granted.

The plaintiff, a volunteer fire captain and administrative assistant, was terminated without cause by the municipality's CAO based on unfounded, sexist rumours and gossip.

The court found the termination was conducted in bad faith and was tainted by patent gender-based discrimination.

The CAO also made defamatory statements about the plaintiff to the municipal council, which lost the protection of qualified privilege due to malice.

The court awarded the plaintiff six months' reasonable notice, $75,000 in moral damages, $35,000 for Human Rights Code violations, $20,000 for defamation, and $60,000 in punitive damages.

The defendants sought costs following the dismissal of the plaintiff's action.

The plaintiff argued that he brought the action in good faith, suffers from a head injury, and has limited income.

The court fixed costs payable by the plaintiff to the defendants at $10,000 all inclusive on a partial indemnity basis.

The defendant brought a motion to strike certain passages of the statement of claim and to transfer the matter to small claims court.

The plaintiff claimed $53,500 arising from a joint property investment.

The court dismissed the request to transfer the matter, finding it was not plain and obvious that the claim fell within the small claims court's monetary jurisdiction.

However, the court struck the plaintiff's claim for a Certificate of Pending Litigation as there was no interest in land in question, and struck several paragraphs of the statement of claim that were argumentative or lacked connection to the alleged breach of contract.

The court, on its own motion under Rule 2.1.03, stayed the plaintiff's action because it was instituted without leave, contrary to a prior vexatious litigant order.

The court directed that the action will be dismissed if the plaintiff does not commence an application for leave under s. 140(3) of the Courts of Justice Act within 60 days.

The plaintiff, previously declared a vexatious litigant, brought a motion seeking retroactive leave under s. 140(4) of the Courts of Justice Act to commence and continue an action against the police board and several officers for false arrest and related claims.

The court reviewed the plaintiff's history of litigation against the police and the evidence provided in support of the current claim.

The court found that while the proceeding was not an abuse of process, the plaintiff failed to meet the onus of showing reasonable grounds for the proceeding, as he provided only a bald affidavit adopting the statement of claim and failed to refute police disclosure records indicating he was intoxicated and caused a disturbance.

The motion for leave was dismissed.

The plaintiffs brought a motion for summary judgment after the defendants failed to close on an agreement of purchase and sale for a residential property.

The defendants argued that the plaintiffs failed to mitigate their damages by rejecting an offer to reduce the purchase price by $50,000 and subsequently selling the property to a third party for $298,000 less than the original contract price.

The court found that the plaintiffs acted reasonably in their mitigation efforts and were not obligated to accept a new bargain from the breaching purchasers.

Summary judgment was granted, awarding the plaintiffs $368,585.95 in damages, representing the difference in sale price and carrying costs, less the deposit.

The plaintiffs brought a motion for substituted service on a defendant driver who could not be located following a motor vehicle accident.

Despite extensive efforts by process servers, the defendant's whereabouts remained unknown.

The court found that substituted service at the defendant's last known address was inappropriate because the documents were unlikely to come to his attention.

However, the court ordered that service be dispensed with and deemed the defendant noted in default.

The applicant, a candidate in the 2019 federal election, applied for relief under s. 477.7 of the Canada Elections Act from the consequences of the late filing of his electoral campaign return.

The applicant's official agent failed to file the return by the deadline and subsequently resigned and passed away.

The court found that the late filing occurred without the applicant's knowledge or acquiescence, satisfying the criteria under s. 477.7(a).

The application was granted, relieving the applicant from the consequences of the late filing.

The respondent father brought a motion to have the parties' 11-year-old daughter attend a French immersion school, while the applicant mother wanted her to attend a homogeneous French-language school.

The parties shared parenting time equally.

The court considered the best interests of the child, weighing factors such as the benefits of French-only instruction, the child's attachments to friends, the father's ability to participate in her education, and the status quo.

The court concluded that it was in the child's best interests to attend the homogeneous French-language school, as it represented the status quo and offered the benefits of full French instruction, despite the father's concerns about his ability to participate in her education.

The father's motion was dismissed.

Following a motion in which the moving party was fully successful, the court determined the quantum of costs.

The moving party sought full recovery of $4,886.69 due to the responding party's failure to comply with court orders.

The court fixed costs at $4,000, an amount above partial indemnity but less than full recovery, noting the responding party's non-compliance did not quite justify an extraordinary order for full costs.

The court also deferred scheduling a further hearing regarding the sale of the property to allow the responding party's intended appeal and stay motion to advance.