SCJ 2012

During a jury trial for homicide, the Crown brought a mid‑trial application seeking to introduce similar fact evidence of the accused’s alleged violent conduct toward individuals he believed to be paedophiles, including an assault on another inmate while in custody after the charged offence.

The Crown argued the evidence was relevant to motive, animus, intention, and to cross‑examine a defence psychiatric expert regarding the accused’s mental state.

Applying the framework from R. v. Handy, the court held that although the evidence had some relevance to hostility toward paedophiles, its probative value was significantly reduced because similar animus was already before the jury and the proposed incident occurred two years after the alleged homicide.

The court found the moral and reasoning prejudice from introducing the detention‑centre assault—particularly a surveillance video—far outweighed its probative value and risked diverting the jury from the issues in the trial.

The Crown was therefore prohibited from adducing evidence about that assault but was permitted limited cross‑examination about other admitted past altercations and hostility toward child molesters.

The defendant brought a motion for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure, arguing that the corporate plaintiff lacked sufficient assets in Ontario to satisfy a potential costs award.

The court also addressed a request by the defendant for leave under Rule 39.02(2) to file a late affidavit after cross‑examinations, which was refused because the evidence should have been delivered earlier and did not justify departure from the rule’s purpose of ensuring parties know the case to meet before cross‑examination.

On the security for costs issue, the court found there was good reason to believe the plaintiff had insufficient assets, given substantial debts and writs of execution.

However, the plaintiff failed to establish impecuniosity due to insufficient evidence regarding the finances of the shareholder and the principal beneficiary of the action.

Although the claim was found to have a good chance of success, balancing the interests of the parties justified ordering staged security for costs.

The offender was sentenced following jury convictions for multiple offences including possession of a loaded prohibited firearm, possession of cocaine for the purpose of trafficking, possession of proceeds of crime, and several breaches of firearms prohibition orders.

Police located drugs, cash, and a loaded handgun in a safe in an apartment connected to the offender, and cocaine in a vehicle he was driving.

The offender had a lengthy criminal record involving firearms and drug trafficking offences and was already subject to prohibition orders at the time.

Applying principles of denunciation, deterrence, and totality, the court imposed a global sentence of ten years’ imprisonment.

Credit of approximately 29 months was granted for pre‑sentence custody, including limited enhanced credit for triple bunking and lack of yard access.

The plaintiff moved under rule 37.14(1)(c) of the Rules of Civil Procedure to set aside a registrar’s order dismissing her wrongful dismissal action for delay under rule 48.14(5).

The court applied the contextual analysis derived from appellate jurisprudence and considered the four Reid factors: explanation for the delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendant.

While the plaintiff established inadvertence and moved promptly after learning of the dismissal, the court found the litigation delay inadequately explained and concluded that the plaintiff failed to rebut the presumption of prejudice arising from the expiry of the limitation period.

Balancing the competing principles of deciding cases on their merits and ensuring timely justice, the court declined to grant a further indulgence.

The motion to set aside the dismissal was therefore refused.

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.

The appellant appealed a trial decision granting custody of a child to the mother and addressing the issue of mobility.

The appellant argued the trial judge erred by considering custody and mobility together rather than determining custody first, and by misconstruing evidence relating to the parties’ circumstances.

The court held the trial judge properly focused on the best interests of the child under s. 24(1) of the Children’s Law Reform Act and reasonably concluded both parents were capable caregivers.

It was open to the trial judge to find that the child’s contact with both parents would be maximized if the child resided with the mother.

No palpable and overriding error was established and the appeal was dismissed.

The accused brought a Corbett application seeking to exclude his criminal record from being used for cross‑examination should he testify at trial on a sexual assault charge.

The record consisted of three minor convictions arising after the alleged offence and did not involve crimes of dishonesty.

The court held that the probative value of the record for credibility assessment was minimal and that its admission risked unfair prejudice and improper propensity reasoning before the jury.

Given the central credibility contest between the complainant and the accused and the absence of any character attack on the complainant, the balance favoured exclusion.

The plaintiff contractor brought an action under the Construction Lien Act against the defendant owners for unpaid invoices relating to masonry work on a remote island cottage.

The defendants argued the plaintiff over-billed, delayed the project, and performed deficient work.

The court found the parties had a time and materials contract, the plaintiff's billings were largely accurate, and the defendants' complaints about deficiencies were unfounded or related to work outside the plaintiff's scope.

The court awarded the plaintiff $117,554.43, including interest and late charges, and declared a lien on the property.

A tenant brought an application seeking a declaration that the Landlord and Tenant Board lacked jurisdiction to hear a landlord’s arrears of rent application because the tenant had vacated the unit before the hearing and because the named landlord was allegedly not a legal entity.

The court considered the interpretation of s. 87(1) of the Residential Tenancies Act, 2006 and the scope of the Board’s authority.

The court held that jurisdiction is established if the tenant was in possession of the rental unit when the landlord’s application was filed.

Issues relating to jurisdiction or the identity of the landlord should be raised before the Board itself.

The application was dismissed as the proper forum to determine the issues was the Landlord and Tenant Board.

The defendant brought a motion seeking an order compelling the plaintiff to attend further defence medical examinations with a vascular surgeon and an ophthalmologist in a motor vehicle personal injury action.

The court considered the discretionary authority under s. 105(2) of the Courts of Justice Act and Rule 33.02(2) of the Rules of Civil Procedure governing additional medical examinations.

The plaintiff had not pleaded vision loss and existing expert evidence suggested the visual impairment was unrelated to the accident, making an ophthalmological examination unnecessary and disproportionate.

However, causation of the plaintiff’s significant leg injuries remained a central issue and an orthopaedic expert had raised the possibility of vascular disease, recommending assessment by a vascular surgeon.

The court held that fairness required allowing the vascular examination but not the ophthalmological assessment.

A child protection matter where the child suffered severe injuries including liver lacerations and rib fractures of unexplained origin.

The Children’s Aid Society initially commenced a protection application but later sought to withdraw it after concluding the child was not in need of protection.

Investigations indicated the injuries likely occurred within 24 hours prior to hospital admission, but no criminal charges were laid and concerns arose regarding the child’s daycare provider.

The Society reported positive observations of the parents’ caregiving and entered into a three‑month Voluntary Service Agreement permitting supervision and services.

The court found the decision to withdraw the protection application reasonable and accepted the withdrawal.

A commercial tenant sought a determination that it was not liable under a net‑net lease for its proportionate share of the cost of completely repaving a parking lot and for the cost of replacing a damaged vehicle door.

The landlord argued the tenant was responsible for common area maintenance and repair expenses.

The court held that full replacement of a 19–20‑year‑old parking lot constituted a capital replacement caused by reasonable wear and tear, not “maintenance” or “repair” contemplated by the lease.

The court also preferred the tenant’s evidence that the door damage pre‑dated the tenancy.

The tenant was therefore not liable for the repaving cost, the door replacement cost, or bailiff fees relating to a dispute about last month’s rent.

At the commencement of his sexual assault trial, the accused applied under s. 278.1 of the Criminal Code for disclosure of Toronto Police Service occurrence reports relating to the complainant.

The accused argued the records, which included a 2009 finding that the complainant was not criminally responsible in an unrelated matter, were relevant to her credibility and reliability.

The court dismissed the application, finding the records were sought solely for impermissible impeachment purposes, lacked a temporal nexus to the alleged assault, and did not meet the threshold of likely relevance required for production.

On a family law motion concerning the matrimonial home, the respondent sought an order for immediate partition and sale, while the applicant sought exclusive possession and a delay in listing the property until the end of the school year for the parties’ children.

The court accepted that exclusive possession would remain with the applicant pending sale but found insufficient evidence that selling the home during the school year would cause harm beyond ordinary disruption.

Both parties faced financial pressures and neither could buy out the other’s interest in the property.

Balancing the financial realities and the limited evidence regarding impact on the children, the court ordered the matrimonial home to be listed for sale immediately.

The applicants, a group of companies owned by Dondeb Inc., sought an Initial Order under the Companies' Creditors Arrangement Act (CCAA) to enable an orderly liquidation of their assets.

The application was opposed by approximately 75% of the secured creditors, who argued for individual receiverships due to a lack of confidence in the applicants' principal and the burden of CCAA administrative costs.

The court dismissed the CCAA application, finding it unlikely that a successful plan could be developed and approved by the creditors.

Instead, the court issued a Global Receivership Order, which was supported by the opposing creditors, to achieve an orderly liquidation at a lower cost.

The accused pleaded guilty to fraud over $5,000 arising from a scheme while employed as an accounting manager, but admitted only approximately $303,000 in fraudulent cheque alterations.

The Crown sought to prove a much larger loss at a Gardiner hearing, alleging total fraud exceeding $1.3 million through additional cheques, direct deposits, petty cash withdrawals, and personal purchases charged to the employer.

The court reviewed evidence from internal and forensic investigations, including missing vendor documentation, forged approvals, and irregular payments recorded in the accounting system.

The court found that most of the disputed payments lacked legitimate business justification and were obtained through dishonest means.

The proven total fraud was determined to be approximately $936,000 for sentencing purposes.

The defendants brought a motion to strike portions of the plaintiffs' proposed class action statement of claim, arguing that the statutory cause of action under Part XXIII.1 of the Securities Act was statute-barred because the plaintiffs did not obtain leave before the expiry of the three-year limitation period.

The court held that the common law special circumstances doctrine applies to the limitation period in the Securities Act, giving the court jurisdiction to make an order nunc pro tunc granting leave.

The court found special circumstances existed because the defendants had known of the claims since 2007 and suffered no prejudice.

The motion to strike the statutory claims was dismissed, but the common law negligent misrepresentation claim was struck with leave to amend for failing to plead detrimental reliance.

The applicant father brought a motion seeking regular unsupervised parenting time with the parties’ children following separation.

The respondent mother opposed overnight access and requested that the father’s contact occur only in her presence due to allegations of abusive and aggressive behaviour.

The court applied the best interests of the child test under s. 16 of the Divorce Act and considered the factors in s. 24 of the Children’s Law Reform Act.

Although the evidence included conflicting allegations and credibility concerns, child protection investigations had not identified safety risks.

The court concluded that supervision was not warranted and ordered a graduated schedule increasing the father’s parenting time leading to alternate weekends and mid‑week overnights.

The plaintiff brought a motion in a dependant’s relief action under the Succession Law Reform Act seeking interim support from the deceased’s estate, interim possession of a residence, and possession of a motor vehicle allegedly gifted inter vivos by the deceased.

The court held that the plaintiff failed to establish a prima facie entitlement to support because the evidence did not demonstrate cohabitation for three years or otherwise satisfy the definition of “spouse” under the Act, nor did she establish financial need.

Interim possession of the residence was also refused because the property was owned by a family trust and there was no statutory or injunctive basis to grant exclusive possession.

However, the plaintiff established a strong prima facie case that the deceased gifted her a BMW vehicle, supported by a signed transfer and recorded statements.

The court ordered interim preservation of the vehicle and permitted the plaintiff to elect between possession with security, estate possession with security, or sale with proceeds paid into court.

A solicitor brought a motion under the Solicitor’s Act to oppose confirmation of a hearing officer’s report assessing the solicitor’s account at $0 after the solicitor failed to attend the assessment hearing.

The solicitor explained that the absence resulted from mistakenly entering the wrong hearing date in her calendar and provided affidavit evidence confirming her intention to proceed.

The court accepted that the failure to attend was inadvertent and that the solicitor had intended to participate in the assessment.

Finding no prejudice in allowing the matter to proceed on its merits, the court set aside the hearing officer’s decision and ordered the matter returned for a full assessment hearing.