SCJ 2014

Accused charged with bid‑rigging and conspiracy challenged the constitutionality of s. 69(2) of the Competition Act, which deemed certain documents and records found in possession of a “participant” to constitute prima facie proof of knowledge and related facts.

The applicants argued the provision created evidentiary and legal presumptions that effectively shifted the burden of proof onto the accused, contrary to the presumption of innocence under ss. 7 and 11(d) of the Charter.

The court held that the section required the trier of fact to accept knowledge of documents as proven and could compel the accused to respond before the Crown proved guilt beyond a reasonable doubt.

The provision therefore infringed the presumption of innocence and fundamental justice and was not justified under s. 1 of the Charter.

Section 69(2) was declared of no force or effect in criminal proceedings, though its use in Competition Tribunal proceedings was unaffected.

The moving party brought a motion to change prior custody and support orders, seeking to appoint a supervisor for the respondent’s access, vary section 7 expense contributions, increase child support based on updated income, and obtain permission to relocate with the children.

The responding party sought various procedural and disclosure orders and the cancellation of a restraining order.

The court found the moving party’s requests regarding section 7 expenses, child support, and relocation to be reasonable and granted them.

The court rejected the responding party’s requests, finding no evidentiary basis for the relief sought and noting the responding party’s failure to comply with access conditions and previous orders.

Significant trial costs were awarded to the moving party.

The court addressed three issues regarding the distribution of proceeds from the sale of properties by a court-appointed Sales Officer.

The court approved the Sales Officer's recommendation to reduce the general reserve and distribute funds following the closing of two properties.

The court also directed that future costs of the Sales Officer be allocated to the sole remaining property.

Finally, the court declined to eliminate or reduce a $7.5 million Settlement Liquidity Holdback, maintaining it to ensure liquidity for accounting adjustments and to incentivize the parties to advance the long-standing family litigation.

Sentencing decision following a jury conviction for fraud over $5,000 arising from a long‑running mortgage investment Ponzi scheme that defrauded 33 victims of more than $7.5 million.

The offender solicited investments through misleading promotional materials and used investor funds primarily to pay earlier investors and finance personal expenses and an affluent lifestyle.

Many victims were elderly retirees who suffered devastating financial and psychological consequences.

The court emphasized denunciation and general deterrence for large‑scale fraud involving breach of trust.

A seven‑year penitentiary sentence was imposed before credit, with enhanced credit for pre‑sentence custody reducing the custodial term to three years, along with restitution orders and a fine in lieu of forfeiture equal to the fraud amount.

Sentencing following guilty pleas to robbery and aggravated assault arising from a violent group attack on a neighbour accused of "snitching." The offender and a co‑accused repeatedly punched, kicked, and stomped the victim, causing severe injuries including fractures requiring surgery and prolonged hospitalization, while also stealing the victim’s cell phone.

The court considered aggravating factors including the vulnerability of the victim, the retaliatory motive, the severity of the injuries, and the significant impact on the victim.

Mitigating factors included the offender’s lack of criminal record, relative youth, guilty plea, remorse, and rehabilitative prospects.

Balancing denunciation and deterrence with rehabilitation and parity principles, the court imposed a custodial sentence followed by probation.

Following conviction after trial for arson causing damage to property and arson to property under ss. 433 and 434.1 of the Criminal Code, the court determined a fit sentence.

The offender set fire to items in his apartment within an occupied multi‑unit residential building, creating significant risk to residents and firefighters and causing property damage.

Aggravating factors included the risk to occupants and first responders, the locked apartment door delaying entry, and the removal of a smoke detector.

Mitigating factors included the offender’s lack of criminal record, mental health struggles, compliance with bail conditions, and rehabilitative efforts.

The court imposed 15 months’ imprisonment followed by two years’ probation, ordered a DNA sample and a weapons prohibition, and declined to order restitution due to the offender’s inability to pay.

The defendant moved for security for costs under Rule 56.01(1)(a) and (d) of the Rules of Civil Procedure on the basis that the plaintiff corporation was resident outside Ontario and lacked assets within the jurisdiction.

The plaintiff argued that it possessed sufficient assets in Michigan and that reciprocal enforcement legislation would permit enforcement of any costs award there, and also relied on the defendant’s delay in bringing the motion.

The court held that the defendant met the threshold for ordering security because the plaintiff was a non-resident corporation with insufficient Ontario assets and had failed to provide convincing evidence of sufficient exigible assets in Michigan.

While the defendant had delayed bringing the motion for several years, the circumstances justified ordering security only for costs incurred after the motion rather than the full estimated costs of the action.

The plaintiff was ordered to post staged security totalling $35,000.

Following a spousal support variation proceeding, the court addressed competing claims for costs.

The moving party sought substantial costs relying on an offer to settle under Rule 18(14) of the Family Law Rules, while the responding party sought partial costs based on disclosure delays and litigation conduct.

The court held that the moving party could not rely on the offer to settle because it was not properly signed under Rule 18(4) and the result obtained was not as favourable as the offer.

Considering divided success, disclosure issues, litigation conduct, and the responding party’s financial disadvantage, the court nevertheless awarded the moving party partial costs.

The plaintiffs, two physicians with prominent professional roles, brought a defamation action arising from malicious internet websites created by the defendant that falsely accused them of criminal conduct and professional misconduct.

After the defendant ceased participating in the litigation and his defence was struck, the plaintiffs sought default judgment and damages.

The court held that the publications were intentionally designed to harm the plaintiffs' professional reputations and were entirely false.

Applying principles governing defamation damages, including those articulated in Hill v. Church of Scientology of Toronto and Barrick Gold Corp. v. Lopehandia, the court found substantial reputational harm caused through internet dissemination.

Each plaintiff was awarded $150,000 in general damages and the defendant was ordered to pay $50,000 in punitive damages, together with costs.

The appellant appealed his convictions for impaired driving and operating a motor vehicle with a blood alcohol concentration over 80mg.

He argued the trial judge erred regarding the standard of proof for a s. 8 Charter breach, the lawfulness of the police officer entering his driveway, the timing of the breath tests, and the failure to find arbitrary detention under s. 9 of the Charter.

The Summary Conviction Appeal Court dismissed the appeal, finding the officer was lawfully on the driveway under an implied invitation, the breath tests were taken as soon as practicable, and although the trial judge erred in inferring the reasons for the appellant's continued detention, a stay of proceedings was not warranted.

The appellant appealed a conviction for assault simpliciter arising from an incident during spiritual counselling in which the accused placed his genital area against the complainant’s head while she was prostrated in prayer.

The trial judge had acquitted the accused of sexual assault but convicted him of the lesser included offence of assault and imposed a suspended sentence with probation.

On appeal, the appellant challenged rulings on a s. 11(b) Charter application, the admission of similar fact evidence relating to a prior incident with another parishioner, several evidentiary rulings during trial, the reasonableness of the verdict, and the sentence.

The court held that there was no unreasonable delay, no error in admitting the similar fact evidence, and no reversible error in the evidentiary rulings.

The conviction and sentence were upheld.

The defendants brought a motion seeking reconsideration or rehearing of reasons issued by a motions judge allowing an appeal from a Master's report in a construction lien dispute.

They relied on Rule 59.06 of the Rules of Civil Procedure and s. 123(4) of the Courts of Justice Act, arguing the reasons were incomplete and failed to address several issues before the court.

The court held that the earlier decision constituted a valid decision under the Courts of Justice Act and that s. 123 applies only where a judge is unable to render a decision, not where a party disputes the adequacy of the reasons.

Any alleged legal error was properly the subject of an appeal rather than reconsideration.

The motion was dismissed and the plaintiff was awarded costs of $45,000 inclusive of disbursements and HST.

The accused brought a Garofoli application challenging the constitutional validity of a search warrant executed at his residence, arguing that the information to obtain the warrant failed to establish reasonable and probable grounds and relied improperly on confidential informants.

The accused sought exclusion of seized evidence under s. 24(2) of the Charter, alleging breaches of ss. 7, 8, 9, and 11(d).

The court assessed the reliability of the confidential informant’s information using the Debot framework—credibility, compellability, and corroboration—and reviewed the totality of the circumstances.

It held that the issuing justice had sufficient credible and reliable evidence to support the warrant, including detailed observations from the informant, partial police corroboration, and the accused’s criminal history involving weapons.

Even if minor inaccuracies existed in the ITO, they were not materially misleading and did not undermine the statutory preconditions for issuing the warrant.

The plaintiff appealed a Master's order requiring it to answer certain undertakings and refusals arising from cross-examinations on affidavits filed in support of a motion for partial summary judgment.

The questions concerned matters including production and packaging arrangements, trademark ownership and assignments, damages evidence, product pricing, and complaints to federal authorities relating to alleged grey market goods.

The plaintiff argued the questions were irrelevant, exceeded the proper scope of cross-examination on affidavits, and were disproportionate.

The court held that the questions were relevant to issues raised by the defendants’ restraint of trade and trademark defences and that proportionality determinations by the Master were entitled to deference.

The Master did not err in concluding that the plaintiff bore an initial obligation to explain if requested information was not readily available or would be unduly onerous to obtain.

The accused, a designated long-term offender subject to a long‑term supervision order, was charged under s. 753.3(1) of the Criminal Code for breaching a condition prohibiting internet access except for employment purposes with written authorization.

The accused brought a Charter application alleging that police and correctional officials had tampered with his cellphone and planted electronic evidence, seeking a stay of proceedings or exclusion of evidence.

The court rejected the allegations of evidence planting and found no Charter breach, concluding the defence failed to establish misconduct on a balance of probabilities.

Although certain cellphone browsing data was given no evidentiary weight due to uncertainty about its origin, other forensic evidence and witness testimony demonstrated that the accused accessed the internet to create and use an online dating profile during the prohibited period.

The court found the offence proven beyond a reasonable doubt.

Following an earlier hearing converting an application concerning distraint of goods into an action to be tried with a related proceeding, the court addressed the issue of costs.

The respondent had successfully argued that the application should proceed as an action together with a companion action involving the same transactions and parties.

The court considered the discretion to award costs under s. 131(1) of the Courts of Justice Act and the factors in Rule 57.01.

While the applicant’s opposition to conversion was not unreasonable and there was no bad faith, the respondent was partially successful on the procedural issue.

The court awarded modest costs for the hearing while reserving further costs to be determined following the final determination on the merits.

The appellant appealed a decision varying a long-standing spousal support order following a motion to change.

The trial judge had reduced ongoing support but significantly increased the monthly repayment of accumulated arrears and declined to impute certain income to the recipient spouse.

On appeal, the court held that a review proceeding does not require proof of a material change in circumstances and found errors in failing to attribute income to the recipient from a retirement investment account and modest rental income from an adult child living in the home.

The court also found the increased arrears repayment schedule was unsustainable relative to the payor’s income.

The support amount and arrears repayment schedule were varied accordingly.

Following a prior finding of civil contempt for breaching an injunction prohibiting dissemination of confidential business information, the court considered the appropriate sanction.

The defendant knowingly and deliberately violated a court order by distributing a press release containing confidential information and refusing to provide disclosure of recipients, showing persistent defiance and no remorse.

The court emphasized the importance of deterrence and the integrity of court orders in the administration of justice.

Finding that a fine would be ineffective due to the defendant’s financial circumstances and continuing defiance, the court imposed a custodial sanction.

A 20‑day jail sentence to be served intermittently over five weekends was ordered, with the sentence stayed for 30 days to permit the defendant to seek a stay pending appeal.

The plaintiff, a former shareholder of the corporate defendant, brought motions for leave to commence a secondary market liability action under the Securities Act and for certification as a class proceeding.

The defendants filed affidavits opposing the motions.

The plaintiff served requests to inspect hundreds of confidential documents mentioned in the affidavits under Rule 30.04(2) prior to cross-examinations.

The court dismissed the motion, finding that the requests lacked specificity, relevance, and proportionality, and that allowing such a fishing expedition would undermine the statutory gatekeeping purpose of the Securities Act leave provisions.

Following dismissal of a civil action as frivolous, vexatious, and an abuse of process, the court addressed the issue of costs.

The successful defendant sought substantial indemnity costs based on both a prior settlement offer and the plaintiff’s alleged reprehensible conduct.

The court held that elevated costs were warranted due to the plaintiff’s abusive litigation conduct and misuse of the court’s process to harass the defendant.

While acknowledging the plaintiff’s asserted financial hardship, the court emphasized that impecuniosity generally does not shield a litigant from adverse costs.

Applying the overriding principle of reasonableness, the court reduced the amount sought and fixed substantial indemnity costs at $14,000.