SCJ 2014

The plaintiff employee brought a motion to determine two questions of law following his dismissal without cause.

First, he argued that the termination clause in his employment contract was void because it excluded the continuation of group insurance benefits during the statutory notice period, contrary to the Employment Standards Act, 2000.

Second, he argued he was entitled to statutory severance pay because the employer's global payroll exceeded $2.5 million, even though its Ontario payroll did not.

The court agreed on both issues, finding the termination clause null and void for violating the Act's minimum standards, and ruling that the calculation of an employer's payroll under section 64 is not restricted to wages paid in Ontario.

During a first degree murder trial, the Crown sought a publication ban under s. 486.5 of the Criminal Code to prevent publication of information identifying the deceased victim, primarily to shield an elderly relative from learning distressing details of the death through media reporting.

The court held that the Dagenais/Mentuck framework governs discretionary publication bans even when sought under a statutory provision.

The Crown failed to establish that the order was necessary to prevent a serious risk to the proper administration of justice or that a significant public interest justified limiting openness.

The concern raised was characterized as a private interest unsupported by medical evidence demonstrating likely harm.

The interim publication ban was therefore set aside.

During a murder trial, the defence advised that the accused intended to testify that he witnessed another individual commit the killing.

The defence argued that such evidence could be introduced without a formal third-party suspect application, relying on appellate authority concerning direct confessions by third parties.

The Crown submitted that the anticipated testimony should have been raised during the earlier third-party suspect application already dismissed by the court.

The court held that the law was unclear as to whether the rule permitting direct evidence of a third party’s confession without a formal application extends to testimony by an accused alleging another person committed the offence.

The judge indicated a preliminary inclination to permit the evidence but required the defence to provide a written outline of the proposed allegations to be put to the third party to ensure a sufficient nexus existed before making a final ruling.

The plaintiffs brought a motion seeking relief to prevent an administrative dismissal and to permit substituted service of court documents.

The court considered evidence that the responding party had been difficult to serve and that traditional service methods were ineffective.

The court found that staying any administrative dismissal was necessary in the interests of justice.

The court further concluded that service by posting the documents to the responding party’s Facebook page was likely to bring the materials to their attention.

The motion was granted and the requested orders were directed to issue.

During a criminal jury trial for extortion, robbery, and death threats, the Crown sought to re‑examine the complainant about her understanding of one accused’s reputation to explain her delayed report to police.

Defence objected, arguing the evidence constituted inadmissible character evidence with prejudicial impact.

The court held that the proposed testimony was admissible not to prove the truth of the accused’s alleged reputation, but to establish the complainant’s state of mind and rebut defence suggestions that the allegations were fabricated due to delayed reporting.

Applying the balancing approach to discreditable conduct evidence, the court found the probative value in addressing credibility outweighed the potential prejudice.

The Crown was therefore permitted to ask the proposed questions with a limiting jury instruction.

The applicant mother and respondent father separated after a short relationship, with the mother maintaining primary care of their young son.

The mother sought sole custody, while the father sought joint custody.

The court found that the parties had a high-conflict relationship characterized by poor communication, largely driven by the father's rigid and uncooperative behaviour.

Applying the principles from Kaplanis, the court concluded that joint custody was unworkable and awarded sole custody to the mother to ensure stability and effective decision-making for the child.

The accused brought a pre‑trial application seeking a stay of proceedings under s. 24(1) of the Charter alleging breach of the right to trial within a reasonable time under s. 11(b).

The case involved numerous sexual offences and child pornography charges and required extensive forensic analysis of electronic devices and categorization of thousands of images and videos.

Applying the analytical framework from Morin, the court assessed the overall delay, waiver, reasons for delay, institutional delay, and prejudice to the accused.

While the total delay approached two years, the court found much of the delay attributable to the inherent complexity of the case and investigative requirements, with only a short period attributable to the Crown.

The court concluded there was no significant prejudice and that the delay was not unreasonable in the circumstances.

Following guilty pleas to sexual assault, sexual interference, and breach of a prohibition order, the Crown applied to have the offender designated a dangerous offender under s. 753 of the Criminal Code.

The offender had a history of sexual offences against children, including prior convictions and repeated conduct demonstrating a pattern of sexual violence against minors.

Expert psychiatric evidence diagnosed pedophilia and antisocial personality traits, with actuarial assessments indicating a moderate‑high to high risk of sexual recidivism.

The court concluded there was no reasonable expectation that a determinate sentence followed by long‑term supervision would adequately protect the public.

An indeterminate sentence was imposed after the offender was declared a dangerous offender.

During a jury trial arising from a motor vehicle accident, the defendants brought a threshold motion under s. 267.5(15) of the Insurance Act seeking a determination that the plaintiff had not sustained a permanent serious impairment of an important physical, mental or psychological function.

The court reviewed the statutory test and the regulatory criteria under the Ontario Regulations, including the requirements of substantial interference, importance of function, and permanence.

Based on extensive medical evidence diagnosing chronic pain syndrome, orthopedic injuries, and psychiatric conditions including major depressive disorder and somatic symptom disorder, the court found the impairments substantially interfered with employment and daily living.

The court accepted the evidence of multiple treating and expert physicians and rejected the defence medical expert’s opinion as unreliable.

The court concluded the plaintiff met the statutory threshold and was not barred from recovering damages for non‑pecuniary losses.

The accused was sentenced following convictions for assault causing bodily harm and uttering a threat to cause death.

The offences arose from a violent attack in a restaurant washroom where the accused struck the complainant, banged her head against a wall, and threatened to kill her.

The court considered aggravating factors including the vulnerability of the victim, the gratuitous violence, and the offender’s significant criminal record, including prior robbery convictions, while recognizing mitigating factors such as the offender’s youth and difficult upbringing.

Applying the sentencing principles in ss. 718–718.2 of the Criminal Code, the court imposed a custodial sentence of two years for assault causing bodily harm and three months concurrent for the uttering threats offence, followed by probation.

Credit was granted for pre‑sentence custody and time spent in a residential facility, and ancillary orders including a DNA order and lifetime weapons prohibition were imposed.

The parties separated following a trip to Jamaica in December 2010, during which the applicant alleged the respondent attempted to kill her by slashing her throat, while the respondent alleged the applicant attacked him with a knife.

The respondent was acquitted in a Jamaican criminal trial.

In this family law trial, the court could not determine on a balance of probabilities who attacked whom.

Given the extreme conflict, the court awarded sole custody to the applicant but ordered increasing, unsupervised access for the respondent, culminating in a week-about shared parenting schedule.

The court also addressed child support, found the applicant in contempt for denying telephone access, and ruled that the applicant's family cottage qualified as a matrimonial home.

The plaintiff, a highly successful salesman who managed a lucrative drill rig production account, agreed to a temporary layoff during an economic downturn.

Upon his recall, the defendant employer offered him a vague sales position that excluded the lucrative drill rig account, fundamentally altering his duties and compensation.

The court found the plaintiff was constructively dismissed and was not required to mitigate his damages by accepting the ill-defined new role.

The plaintiff was awarded 16 months' pay in lieu of notice.

In a multi‑accused murder trial, the Crown sought to introduce a PowerPoint presentation prepared by an Ontario Provincial Police analyst summarizing extensive cell phone records already entered in evidence.

Defence counsel objected, arguing the presentation was redundant, prejudicial, and effectively allowed the Crown to present its theory of the case twice.

The court held that the PowerPoint itself was not evidence but an illustrative aid reorganizing evidence already admitted.

Although useful and reliable, its probative value was outweighed by prejudice arising from duplication, significant trial time, and the unfair advantage of allowing the Crown to present its theory through a witness before closing submissions.

The court excluded the presentation from evidence but permitted the Crown to use it in closing argument and ordered the Crown to disclose the presentation to defence counsel in editable PowerPoint format.

The moving party sought summary judgment declaring that the co-defendant’s insurer was the first loss insurer under s. 277(1.1) of the Insurance Act arising from a single-vehicle accident involving a rented car in New York State.

The motion also sought a declaration that Ontario law governed vicarious liability issues and that the insurer fund the defence.

The court held that there were genuine issues requiring trial, including whether the driver was a renter or co-lessee under the rental agreement and whether New York law governed liability under the lex loci delicti rule.

The court further concluded that the narrow injustice exception to lex loci delicti did not clearly apply at this stage.

The insurer’s cross-motion to amend pleadings to plead New York law was granted because the amendment did not withdraw an admission and caused no non-compensable prejudice.

Several defendants in an insurer’s civil fraud action brought motions seeking full particulars of allegations relating to allegedly inflated or fabricated accident benefit invoices submitted through medical service providers.

The insurer alleged improper billing practices involving treatment plans and treatment invoices but refused to provide detailed particulars, asserting privacy concerns under the Personal Health Information Protection Act and offering only a spreadsheet during discovery.

The court held that the pleadings lacked sufficient material facts and that allegations amounting to misrepresentation require full particulars under Rule 25.06(8) of the Rules of Civil Procedure.

The court rejected the argument that the issue became moot after the insurer served an amended pleading removing the words “fraud” and “collusion”, finding the core allegations still required particularization.

The insurer was ordered to deliver the requested particulars within 30 days.

The moving parties sought leave to appeal to the Divisional Court from an interlocutory order dismissing their Rule 21 motion challenging the court’s jurisdiction over a wrongful dismissal claim brought by a probationary police officer.

The court considered the test under Rule 62.02(4) of the Rules of Civil Procedure, which requires either a conflicting decision or a reason to doubt the correctness of the order combined with issues of sufficient importance.

The court found a conflicting decision concerning whether disputes involving probationary police officers fall within the exclusive jurisdiction of labour arbitrators or police disciplinary regimes.

Given the potential conflict and broader importance for labour law and police discipline frameworks, leave to appeal was granted.

An inmate serving a life sentence applied for habeas corpus challenging his continued detention in a medium-security institution following a settlement that required his transfer from a maximum-security institution to a medium-security federal penitentiary in Ontario.

The applicant argued that transfer to a particular medium-security facility imposed more restrictive housing conditions and therefore constituted a deprivation of liberty.

The court held that the move from maximum to medium security increased, rather than reduced, the applicant’s liberty and therefore did not establish the deprivation required for habeas corpus.

The court further found that the transfer complied with the parties’ settlement terms and that the correctional authorities retained discretion to determine the specific institution.

The application was dismissed.

Following the dismissal of a motion to add proposed defendants in a negligence action relating to a heating fuel oil spill, the proposed defendants sought costs of the motion.

They requested partial indemnity costs exceeding $17,000, while the plaintiff argued that $5,000 was reasonable.

The court reviewed comparable authorities and the principles governing costs under Rule 57, emphasizing that costs must be fair and reasonable rather than strictly reflective of actual expenditures.

Finding the hours claimed excessive but acknowledging the applicants’ success, the court fixed costs at $10,000 inclusive of disbursements and taxes.

The appellant father brought a motion for a stay pending appeal of an Ontario Court of Justice order that transferred the children’s primary residence from him to the mother.

The court reviewed the applicable framework for stays of custody orders under s. 74 of the Children’s Law Reform Act and considered jurisprudence addressing the RJR‑MacDonald test and its modification in family law contexts.

The court found the appeal raised a serious issue, particularly regarding whether the trial judge misapprehended evidence about an ex parte custody order and improperly discounted the status quo.

Given the young ages of the children and the risk of instability if they were moved pending the appeal, the court concluded that their best interests favoured maintaining the current arrangement.

A stay of the trial judge’s custody order was granted pending the appeal.

The accused brought a Charter motion seeking exclusion under s. 24(2) of digital evidence obtained from Blackberry phones and a Blackberry Playbook after the court previously found the searches violated s. 8 of the Charter.

Applying the framework in R. v. Grant, the court assessed the seriousness of the Charter breach, the impact on the accused’s privacy interests, and society’s interest in adjudication on the merits.

The court admitted certain communications data, including BBM chats, SMS messages, emails, notes, and call logs, but excluded other categories of device data such as browser history, cookies, multimedia files, and related metadata.

The accused also challenged production orders issued to telecommunications and health authorities.

The court rejected those challenges, holding that sufficient grounds existed for the issuing justice and declining to excise references to chats that were also lawfully obtained from another device.