J. Ross Macfarlane

Following conviction for sexual assault, the court imposed a 33-month custodial sentence on a first-time offender who penetrated a sleeping friend without consent.

The offender was 18 years old at the time of the offence.

The court applied the sentencing framework established in R. v. A.J.K., which establishes a presumptive range of three to five years for forced penetration.

The court found significant aggravating factors including the assault of a sleeping complainant despite her prior express objection to such contact, the breach of trust and friendship, exposure to disease and pregnancy, and the devastating impact on the complainant.

Mitigating factors included the offender's youth, lack of criminal history, genuine remorse, and pro-social background.

The court declined to impose a SOIRA order, finding the offender unlikely to reoffend.

Following a four-day trial, the offender was convicted of sexual assault contrary to section 271 of the Criminal Code.

The assault involved forced vaginal penetration of the complainant, a trusted friend, without consent or a condom.

At sentencing, the Crown sought four years imprisonment while the defence sought three years.

The court imposed a custodial sentence of three years and six months, reduced by pre-trial custody credits and bail condition credits to a net term of three years.

The court balanced mitigating factors including the offender's role as a father, courses completed in custody, and personal losses, against aggravating factors including the breach of friendship, exposure to disease, and the serious nature of forced penetration.

Ancillary orders included DNA sampling, a 10-year firearms prohibition, a 20-year SOIRA order, and a non-communication order with the complainant.

The court considered whether the plaintiff, Cory McGrath, sustained a permanent serious impairment of an important physical, mental, or psychological function as a result of a motor vehicle collision, as required by the "threshold" in section 267.5(15) of the Insurance Act.

After a jury trial and detailed review of the evidence, including expert and lay testimony, the court found that Ms. McGrath met the threshold, entitling her to recover health care expenses and non-pecuniary loss.

The decision provides a thorough application of the statutory and regulatory framework, and the relevant case law, to the facts of the case.

The defendant, the Municipality of Chatham-Kent, brought a motion for summary judgment to dismiss a negligence claim by the plaintiff, 1375175 Ontario Inc., on the basis that it was statute-barred.

The plaintiff alleged negligent issuance of an Order to Comply (OTC) and negligent maintenance of records related to the multi-tenant use of a commercial building.

The court found that the plaintiff had sufficient knowledge to discover the claim more than two years before the effective commencement date of the amended claim, thus the claim was statute-barred.

The motion for summary judgment was granted, and the action was dismissed.

The accused, James Scott Gallan, brought an application under s. 278.93 of the Criminal Code to determine the admissibility of certain records (videos and text messages from the complainant's phone) in his sexual assault trial.

The Crown objected, arguing an application was necessary despite the complainant's prior consent to police obtaining the information.

The court ruled that the complainant's consent to police disclosure did not waive the need for a s. 278.93 admissibility application, rejecting the reasoning in R. v. Martiuk.

The court then proceeded to rule on the admissibility of specific messages, admitting some relevant to the complainant's credibility and motive to fabricate, while excluding others deemed to have high privacy interest and marginal probative value, such as those related to the complainant's mental health or irrelevant content.

The applicant father sought the return of his child to Ukraine under the Hague Convention on the Civil Aspects of International Child Abduction, alleging wrongful removal by the respondent mother.

The court found the removal was wrongful but dismissed the application, determining that the child was now settled in Canada (Article 12 exception) and that returning her to Ukraine posed a grave risk of physical or psychological harm due to the ongoing war (Article 13(b) exception).

This endorsement addresses costs following a summary trial where the plaintiff's claim was dismissed.

The defendant, who successfully defended the action, sought costs up to the maximum allowed under simplified procedure rules ($84,750).

The plaintiff did not make submissions.

The court considered factors under Rule 57.01, noting the defendant's counsel incurred excessive hours due to travel and having two counsel, and characterized the defendant's litigation approach as "scorched earth" and disproportionate.

The court also found neither party made serious efforts to resolve the case economically.

Ultimately, the court exercised its discretion to award the defendant costs fixed at $45,000, inclusive of fees, disbursements, and HST, which was less than the maximum sought.

The Office of the Children's Lawyer (OCL) brought a motion to be appointed to represent the child A.C. in a child protection proceeding concerning her twin brother, J.C. The biological parents, D.C. and N.C., opposed the motion, arguing they could adequately advocate for A.C. The court granted the OCL's motion, emphasizing A.C.'s right to independent legal representation under the Child, Youth and Family Services Act, the Canadian Charter of Rights and Freedoms, and the United Nations Convention on the Rights of the Child.

The court found that A.C.'s interests, particularly regarding sibling access with J.C. and her communication difficulties, necessitated independent counsel, as the parents' advocacy, however well-intentioned, could not substitute for the child's own voice, especially where their interests might diverge.

The defendants brought a motion under section 137.1 of the Courts of Justice Act to dismiss the plaintiff's action for defamation and intentional interference with economic relations.

The action arose from tweets and newspaper comments made by the defendants criticizing the plaintiff nursing home's COVID-19 policies and care of a resident.

The court found the expression related to a matter of public interest.

The plaintiff failed to demonstrate that its claim had substantial merit and that the defendants had no valid defences.

Furthermore, the court held that the public interest in protecting the defendants' expression substantially outweighed any minimal harm suffered by the plaintiff.

The motion was granted and the action was dismissed.

The appellant, Gillian Boere, appealed her conviction for sexual exploitation and her 12-month prison sentence.

The trial judge had found her in a position of trust towards the 16-year-old complainant.

The appeal raised three issues: the trial judge's finding of a position of trust, the assessment of the complainant's credibility and reliability, and the dismissal of a constitutional challenge to the mandatory minimum sentence as moot.

The court dismissed both the conviction and sentence appeals, upholding the trial judge's findings on the position of trust, the complainant's credibility, and the appropriate application of the mootness doctrine regarding the constitutional challenge.

The plaintiff sued the defendant for damages arising from a car collision.

The court found the defendant negligent and that his negligence caused certain injuries to the plaintiff.

However, the plaintiff's injuries, primarily cervical and lumbar strain exacerbating pre-existing chronic pain, along with some generalized anxiety and headaches, were found not to meet the statutory threshold for recovery of general damages or health care expenses under the Insurance Act.

The court determined that the impairments were not permanent or serious enough to substantially interfere with most of the plaintiff's usual activities of daily living, especially considering her significant pre-existing health issues and inconsistent participation in recommended treatments.

Consequently, the defendant's threshold motion was granted, and the action was dismissed.

The Crown applied for orders under ss. 486.2(2) and 486.1(2) of the Criminal Code to allow the complainant to testify via CCTV and with a support person present.

The complainant, who was 15-16 years old at the time of the alleged sexual offences, suffered severe anxiety and physical illness during a previous court attendance when denied a screen.

The court granted the application, finding that the testimonial aids would facilitate a full and candid account and were in the interest of the proper administration of justice.

The court also noted the defence's opposition was frivolous and caused unreasonable delay.

The court-appointed receiver of Crystal Farms Limited sought approval for the sale of two real properties.

Despite a late, slightly higher conditional offer from a third party, the court applied the principles from Royal Bank of Canada v. Soundair Corp. to approve the original sale agreements.

The court found the receiver had made sufficient efforts to obtain the best price, acted with efficiency and integrity, and that the original transactions were in the best interests of all stakeholders, dismissing the respondent's request to reopen the sale process.

The defendants, Chatham-Kent Children’s Services (CKCS), moved to compel the plaintiffs, Brian and Betty-Jo Kivell, to produce unredacted medical and counselling records and a further affidavit of documents.

The plaintiffs claimed the redacted portions were irrelevant, embarrassing, and subject to Wigmore privilege, relating to a private marital matter.

The court found the redacted information relevant to the plaintiffs' claimed psychological injuries and the defendants' causation defence.

The court rejected the privilege claim, finding insufficient evidence to satisfy the fourth Wigmore criterion (injury from disclosure outweighing benefit to litigation).

The motion was granted, ordering Mr. Kivell to produce the unredacted documents and a further affidavit of documents within 45 days, with a warning that failure to comply would result in dismissal of his claim.

The Attorney General of Canada brought a motion to rectify a mutual release signed with Elmara Construction Co. Limited, asserting it was mistakenly drafted as mutual instead of a one-sided release from Elmara to Canada, contrary to their settlement agreement.

Elmara did not oppose the rectification.

AC Metal Fabricating Limited, a plaintiff in the broader litigation, opposed the motion, arguing the mutual release was intended or that their own mutual release with Canada already precluded Canada's future warranty claims against Elmara.

The court found that the mutual release failed to accurately record the parties' prior agreement, which intended a one-sided release from Elmara to Canada, preserving Canada's warranty rights.

The court held that the mistake was common to Canada and Elmara, or alternatively, a unilateral mistake by Canada that Elmara knew or ought to have known about, and allowing Elmara to benefit would be unconscionable.

The motion for rectification was granted.