SCJ 2013

During a second-degree murder trial, the Crown sought to re-examine the sole eyewitness (the accused's wife) by playing portions of her videotaped police statement.

The defence had cross-examined the witness on prior inconsistent statements made during the interview.

The Crown argued the video was necessary to show the witness's highly emotional state and provide context for the inconsistencies.

The court ruled that the Crown could not play all portions showing the witness in distress, as it would be prejudicial and misleading, but permitted the Crown to play the specific portions upon which the witness was cross-examined to provide full context.

Following a proceeding in which the defendant was entirely successful, the court addressed the issue of costs.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court emphasized that cost awards should reflect the reasonable expectations of the parties and remain proportionate to the dispute.

Given the defendant’s complete success, the court determined that the defendant was entitled to recover costs.

Costs were fixed in a lump sum inclusive of taxes and disbursements.

The accused was sentenced after being convicted of conveying a terrorist hoax, fabricating evidence, public mischief, and obstructing a peace officer.

The offences arose from a fabricated online discovery purporting to reveal jihadist plans targeting the Pickering Nuclear Generating Station, which triggered an extensive multi‑agency national security investigation.

Forensic computer evidence established that the accused had created and embedded nuclear plant plans within an image of the Quran and falsely reported the discovery.

The court emphasized denunciation and deterrence due to the seriousness of terrorist hoaxes and the significant investigative resources expended.

A global custodial sentence of 12 months’ imprisonment was imposed for the principal counts, with a concurrent 4‑month sentence for obstruction, followed by two years’ probation and a five‑year weapons prohibition.

The Applicant Mother sought leave to appeal an interim order that required her to return the children to Haliburton County and established a week-about shared custody regime.

She also sought a stay of the order pending appeal.

The court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order, which drastically changed the status quo without adequately considering the mother's financial situation, lack of accommodation, and allegations of abuse.

The court also granted a stay pending appeal, finding the mother would suffer irreparable financial harm and the balance of convenience favoured allowing the children to remain in Barrie pending the appeal.

A media organization applied for access to and copies of exhibits filed at a criminal trial and sentencing hearing.

The accused did not oppose disclosure except for personal identifying information contained in a pre‑sentence report, a position supported by the Crown.

Applying the open court principle and the Dagenais/Mentuck framework, the court held that no evidence justified restricting access to the exhibits.

The court ordered disclosure of all exhibits but required that identifying information of third parties in the pre‑sentence report be redacted pending notice to those individuals and an opportunity for them to respond regarding potential disclosure.

The court sentenced an offender who pleaded guilty to 16 historic offences involving prolonged sexual, physical, and emotional abuse of two child complainants who had been placed in his care.

Applying the Ontario Court of Appeal's framework for serious child sexual abuse by a person in a position of trust, the court held that denunciation and deterrence were the dominant sentencing objectives and that a low double-digit penitentiary sentence was warranted.

Although the Crown sought consecutive sentences for each complainant subject to totality, the court concluded that a global sentence better reflected the circumstances and imposed concurrent 13-year terms on the lead counts, with concurrent 5-year terms on the remaining counts.

Ancillary lifetime and statutory prohibition orders were also imposed.

The defendants moved to set aside earlier ex parte orders granting a Mareva injunction and appointing a receiver over corporate assets allegedly used to shield property from enforcement of a substantial fraud judgment.

They argued that changed circumstances following a partial appellate reduction of the judgment, the alleged inadequacy of the plaintiffs’ undertaking as to damages, delay in prosecuting the action, and the balance of convenience justified dissolving the orders.

The court held that although the Court of Appeal reduced and modified aspects of the original fraud judgment, the defendant remained liable for over $12 million and the underlying factual basis for asset preservation had not materially changed.

The court also rejected arguments concerning the undertaking as to damages and delay, noting the extensive appellate proceedings that reasonably delayed progress.

The Mareva injunction and receivership orders therefore remained justified to preserve assets pending trial.

Following the defendants’ complete success on a summary judgment motion and related application, the court determined the appropriate costs payable by the plaintiff.

The defendant warranty corporation sought substantial indemnity costs but provided no justification, and the court instead awarded partial indemnity costs.

The court reviewed the defendants’ bill of costs and reduced certain counsel fees while allowing reasonable disbursements.

Additional limited costs were permitted for preliminary legal assistance performed by a lawyer who was not solicitor of record, but no costs were allowed for work related to a third party claim.

The plaintiff was ordered to pay specified partial indemnity costs to the successful defendants.

The accused applied to exclude statements refusing to provide a breath sample following a fatal collision, arguing that his Charter rights under ss. 10(a) and 10(b) were breached.

He contended that once the victim died, the legal jeopardy associated with refusal to provide a breath sample increased to life imprisonment and he should have been informed and given a further opportunity to consult counsel.

The Crown argued that the accused had already been advised of his right to counsel, had consulted a lawyer, and that the jeopardy had not meaningfully changed because he was already facing charges carrying life imprisonment.

The court held that the accused understood the general jeopardy he faced and that no discrete change in the investigation triggered a renewed right to counsel.

The application to exclude the refusal evidence was dismissed.

In the context of ongoing inspection, receivership, and bankruptcy proceedings involving multiple corporations and a charitable foundation, counsel for the foundation sought a suspension of all proceedings pending determination of a contempt motion brought by the receiver against the foundation’s lawyer.

The moving party argued that the contempt allegation created a professional conflict of interest that would impair counsel’s ability to continue representing the client.

The receiver amended its motion to remove the requested contempt remedy against counsel, while reserving the right to bring such a motion in the future.

The court held that because the contempt relief against counsel had been removed, there was no present basis to suspend the proceedings.

Potential future contempt proceedings were insufficient to justify delaying the matters.

Sentencing following jury convictions for possession of a loaded prohibited firearm, possession of a firearm without a licence, possession knowing no licence was held, and possession of a prohibited magazine.

Police located a loaded 9mm handgun with an oversized magazine during execution of a search warrant in a residence where the offender and two young children were present.

The court emphasized denunciation and deterrence in firearm offences and imposed a custodial sentence reflecting the seriousness of possessing a loaded prohibited firearm.

The court applied the Kienapple principle to stay one overlapping count and imposed concurrent sentences for the remaining offences.

Credit for pre‑sentence custody was granted with enhanced credit for periods of triple bunking and lockdown conditions.

The applicants, as landlords and mortgagees in possession, sought declaratory relief concerning a commercial lease and possession of the premises.

The central issue was whether the lease had expired in January 2013 or remained in force pursuant to alleged amendments extending the term and providing automatic renewal.

The court found that no proper notice of the purported amendments had been provided to the applicants after they became landlords.

As a result, the amendments were not binding, the lease terminated on January 14, 2013, and the tenant became an overholding tenant subject to a month‑to‑month tenancy.

The month‑to‑month tenancy was validly terminated under s. 28 of the Commercial Tenancies Act, entitling the applicants to possession and a writ of possession.

Following convictions for criminal harassment and breaches of probation, the Crown sought a dangerous offender designation under s. 753(1) of the Criminal Code.

The court reviewed the offender’s extensive criminal history including numerous sexual offences, violent offences, and repeated breaches of court orders, as well as psychiatric assessments diagnosing schizophrenia, traumatic brain injury, paraphilias, and substance abuse disorders.

Expert evidence established a high risk of future sexual violence and persistent failure to restrain behaviour.

The court concluded the statutory criteria for dangerous offender designation were met under both s. 753(1)(a)(i) and (ii).

The offender failed to establish that community management would adequately protect the public, and the court imposed a penitentiary sentence followed by long‑term supervision.

The applicant sought temporary child and spousal support, while the respondent cross-moved to impute income to the applicant and to calculate his income excluding certain non-cash and bonus components.

The parties shared parenting time equally.

The court declined to impute income to the applicant, finding she was not intentionally under-employed given her ongoing efforts to find work and her historical role as primary caregiver.

The court used the respondent's line 150 income of $217,007 to calculate temporary support, ordering him to pay $2,776 monthly in child support and $3,916 monthly in spousal support pending trial.

The accused was charged with multiple offences including sexual interference and sexual assault involving a complainant under the age of 16.

The defence challenged the complainant’s credibility and reliability and argued the police investigation was incomplete.

The court assessed inconsistencies in the complainant’s testimony and considered forensic DNA evidence linking the accused to semen found on the complainant’s underwear.

Applying the principles governing credibility assessments and the standard of proof beyond a reasonable doubt, the court found the complainant credible and accepted the expert DNA evidence as corroborative of key allegations.

The accused was convicted on all four counts.

Family law trial addressing the date of separation, equalization of net family property, and entitlement to child and spousal support.

The court found the parties separated in February 2009 when the respondent informed the applicant the marriage was over while she was in Tanzania with the children.

Based on incomplete financial disclosure, the court calculated the parties’ net family properties and ordered an equalization payment to the applicant.

The court declined to impute income to the applicant under s.19(1) of the Child Support Guidelines, finding she was not intentionally under‑employed due to caregiving responsibilities and serious health issues.

Spousal support and set‑off child support were ordered, along with payment for extraordinary expenses.

Following a decision on cross-motions where the appellant was permitted to remain in her home provided she paid rent to the respondent, both parties sought costs.

The appellant sought $20,050.64 and the respondent sought $12,674.61.

The court found that both parties had achieved divided success, as the appellant remained in the home and the respondent received rent.

Consequently, the court declined to make any costs order.

The applicant purchaser sought to void a commercial real estate transaction and recover $5.913 million from the respondent vendor, claiming the vendor failed to provide a copy of an environmental Director's Order prior to closing as required by s. 197 of the Environmental Protection Act.

The court dismissed the application, finding on a balance of probabilities that the vendor did provide the order.

Alternatively, the court held that the applicant was estopped from voiding the transaction because its solicitors had represented to the vendor prior to closing that they had no outstanding concerns regarding the receipt of the order.

The defendants moved for summary judgment dismissing claims against several individual defendants on the basis that all contractual dealings were with a corporate entity operating under a business name.

The central issue was whether the plaintiff knew or ought reasonably to have known it was contracting with a corporation rather than individuals.

The court reviewed evidence including cheques, website references, and business name registration and applied the summary judgment framework under Rule 20.04 of the Rules of Civil Procedure.

The court held that the evidence did not establish that the plaintiff had sufficient notice that it was dealing with a corporation, leaving a genuine issue requiring a trial.

However, the claim against one individual defendant was dismissed for lack of any evidence of involvement in the transactions.

The applicants brought an oppression application regarding a family investment company, Naim Investments Limited.

They alleged that the proposed sale of a 10% shareholding by an estate to a third party, Dr. Low, was a disguised sale to a rival family branch that would breach an unwritten control agreement and a written ownership restriction agreement.

The court found no evidence of a control agreement, determined that Dr. Low was an arm's length purchaser, and concluded that the election of a new board to approve the sale was a proper exercise of corporate governance to resolve a deadlock.

The application was dismissed with costs.