SCJ 2016

The accused sought an order permitting challenges for cause of prospective jurors based on race, religion, pre-trial publicity, marital infidelity, and employment bias.

The court permitted challenges for cause on the grounds of race, religion (by agreement), and pre-trial publicity, finding a realistic potential for bias that might prevent jurors from being impartial despite judicial instructions.

However, the court denied challenges for cause based on marital infidelity and employment bias, as the applicants failed to demonstrate widespread community bias or that potential jurors would be incapable of setting aside such biases.

G.B. was sentenced following convictions for sexual offences against his two daughters, J.B. (17) and A.B. (14-15).

The court considered aggravating factors including breach of trust, victim vulnerability, the number of victims, the invasive nature of the assault on J.B., and G.B.'s substance abuse as an aggravating risk factor.

Mitigating factors included community support and G.B.'s disadvantaged background as a survivor of sexual abuse.

The defence proposed a global sentence of 3 years and 9 months, while the Crown sought 5 years.

The court imposed a global sentence of 3 years and 9 months (including 9 months pre-sentence custody), consisting of 2 years for the offence against J.B. and 1 year consecutive for the offence against A.B. Various ancillary orders were made, including a DNA order, SOIRA order for life, weapons prohibition, and a 10-year contact prohibition for A.B.

The applicant sought temporary orders for child and spousal support, sale of a cottage property, and interim disbursements.

The respondent failed to provide full financial disclosure despite previous agreements and court orders.

The court imputed income to the respondent based on adverse inferences drawn from his non-disclosure and the applicant's expert's preliminary report.

The court granted temporary orders for child and spousal support, ordered the sale of the cottage, and awarded interim disbursements to the applicant to level the playing field.

The plaintiff, Shelly Wine, brought a motion for leave to appeal to the Divisional Court from an order setting aside a default judgment against two defendants, Houman Mahadjeri and Rayvin Teena Squires.

The motion judge had set aside the default judgment on terms, including payment of costs thrown away.

The plaintiff argued the motion judge misapprehended evidence regarding the timing of counsel retention and failed to address the defendants' delay, leading to prejudice.

The court applied the two-part test for leave to appeal under Rule 62.02(4)(b), which requires "good reason to doubt the correctness" of the order and that the appeal involves "matters of such importance." The court found no good reason to doubt the correctness of the motion judge's decision, which had properly considered the five factors for setting aside default judgment as outlined in Mountain View Farms Ltd. v McQueen.

The motion for leave to appeal was dismissed, and costs were awarded to the respondents.

The Crown appealed the acquittal of the respondent on three fraud-related charges, where the critical issue at trial was identity.

The trial judge acquitted the respondent, finding reasonable doubt based primarily on a visual comparison of a Money Mart photo with the accused in court.

The Crown alleged the trial judge erred by failing to consider other material circumstantial evidence of identity, such as matching names, dates of birth, and addresses between the sworn Information and Money Mart records.

The appellate court found that the trial judge's failure to refer to this material circumstantial evidence constituted a misapprehension of evidence and rendered the reasons insufficient for effective appellate review.

Consequently, the appeal was allowed, and a new trial was ordered before a different judge.

The plaintiffs moved for summary judgment against the defendants for breach of an Agreement of Purchase and Sale.

The defendants raised five defenses.

The court granted summary judgment on four defenses (unenforceability due to waiver, bad faith, mitigation, and insufficient funds to close a secondary property purchase), finding no genuine issue for trial on these points.

However, a trial of an issue was ordered to determine the foreseeability of the quantum of forfeited deposits related to the secondary property purchase, as there was conflicting evidence regarding the defendants' knowledge of the deposit amounts at the time of contract.

The court, acting under Rule 2.1, dismissed the applicant's proceeding as frivolous, vexatious, or an abuse of process.

This decision followed a prior endorsement where the applicant was invited to provide submissions explaining why the application should not be dismissed, but no submissions were received.

The court found the proceeding sought relief it could not grant.

The accused, Iqbal Singh, applied for a directed verdict of acquittal on charges of first-degree murder and unlawful confinement.

The court reviewed the evidence against the legal tests for directed verdicts, unlawful confinement (actus reus and mens rea), planning and deliberation for first-degree murder, and constructive first-degree murder (temporal and causal connection).

The court found sufficient evidence for a properly instructed jury to find the essential elements of unlawful confinement and both forms of first-degree murder (planning and deliberation, and constructive murder).

Consequently, the application for directed verdicts on both counts was dismissed, allowing the charges to proceed to the jury.

The plaintiff's action against her former employer, LCBO, alleging work-related illness and injuries from 1996-2004, was dismissed under Rule 2.1.01.

The court found that the claims, which stemmed from unsuccessful WSIB claims, were precluded by the Workplace Safety and Insurance Act, 1997, which vests exclusive jurisdiction in the WSIB and makes its decisions final and unreviewable by courts.

The action was deemed frivolous and an attempt to re-litigate a prior dismissed claim.

The plaintiffs sued their former lawyers for solicitor's negligence, alleging they missed a limitation period in a prior action against Mitsubishi, thereby losing the opportunity to appeal on the merits of misrepresentation, negligence, and Arthur Wishart Act claims.

The defendant law firm moved for partial summary judgment to dismiss the misrepresentation component of the damages claim, arguing that the original motion judge's finding of no misrepresentations was not appealed.

The court granted the motion, finding that the plaintiffs' Notice of Appeal did not challenge the motion judge's findings on common law or statutory misrepresentation, thus no "lost opportunity" existed for this specific claim.

Costs were deemed a wash due to the defendants' initial broader motion.

The appellant appealed a conviction for impaired operation of a motor vehicle.

The trial judge had rejected the appellant's evidence of consuming alcohol after driving but before breath tests, citing a lack of corroboration.

The appellate court found that this imposed an unwarranted obligation on the appellant, as there was no onus on him to prove post-driving consumption.

The appeal was allowed, and a new trial was ordered.

The Crown appealed the respondent's acquittal on an "over 80" charge.

The trial judge had found no reasonable and probable grounds for arrest or breath demand, leading to the exclusion of breath samples under s. 24(2) of the Charter.

The Superior Court of Justice found that the trial judge erred in law by not making a clear finding of fact regarding the respondent's slurred speech, which was a crucial factor in determining reasonable and probable grounds.

Without a definitive finding on this key indicium of impairment, the court could not determine with certainty if reasonable and probable grounds existed.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

This decision addresses costs following a ten-day family law trial.

The court found the applicant, Dusko Janjic, engaged in bad faith conduct and unreasonable behaviour, including deliberate overstatement of parenting issues, interference with the mother-child relationship, inappropriate communications, and disobedience of court orders.

The respondent, Jelena Janjic, was the successful party and was awarded full indemnity costs, which included compensation for her solicitor's preparatory work and her own time as a self-represented litigant, as well as disbursements.

The court applied Rule 24 of the Family Law Rules, emphasizing the presumptive entitlement of the successful party to costs and the impact of unreasonable or bad faith conduct on the award.

The applicant sought costs related to parenting issues after a settlement was reached on both parenting and financial matters at the outset of trial.

The court found that success on parenting issues was divided and that the respondent, a self-represented litigant, had acted reasonably in negotiations, securing more favourable terms than the applicant's offer.

The court declined to award costs, emphasizing the importance of encouraging settlement and not "pre-judging" the outcome of issues resolved through negotiation.

The applicant sought an order to exclude evidence seized under a search warrant, alleging a breach of section 8 of the Canadian Charter of Rights and Freedoms.

The applicant argued that the information to obtain the search warrant lacked reasonable grounds, specifically regarding the presence of drugs at the residence and an inadequate temporal nexus between the alleged offences and the warrant's issuance.

The court reviewed the information to obtain based on the principles set out in R. v. Garofoli and found that it contained sufficient and credible information to establish reasonable grounds for the search warrant.

The court also determined that there was a sufficient connection in time given the ongoing nature of the investigation.

As no Charter breach was found under section 8, the court did not need to consider the exclusion of evidence under section 24(2).

The application was dismissed.

The accused, Gurpreet Ronald and Bhupinderpal Gill, charged with first-degree murder, sought to edit their voluntary exculpatory statements given to police.

The Crown alleged the accused acted in concert to kill the victim.

The court reviewed legal principles for editing voluntary statements, emphasizing the balance between relevance, prejudicial effect, and the right to a fair trial in a joint proceeding.

The judge ruled that segments where the officer commented on the accused's credibility, advised them to tell the truth, or expressed opinions on co-accused's guilt should be excised as they are not probative and are prejudicial.

The defendants brought a motion to remove the plaintiffs' counsel, Greg Monforton and Partners, due to an alleged conflict of interest.

The child plaintiff, Sora Al Bidery, was represented by the firm, as were her parents, Amir Al Bidery and Amal Karim, who were also named as defendants by counterclaim for negligent supervision.

The court found an inherent conflict of interest based on the duties of loyalty and confidentiality.

The plaintiffs' counsel had taken positions on behalf of the parents that were adverse to the child's interests and had not obtained informed consent from all parties regarding the conflict.

The motion was granted, and the plaintiffs' counsel was removed from the record for all three plaintiffs.

Mohamad Sleiman ("Moe") pleaded guilty to sexual interference and sexual assault of a 15-year-old complainant (T.P.) due to her age, and two probation breaches.

He pleaded not guilty to forcible confinement, threat to cause death, and threat to cause bodily harm to T.P.'s family.

A Gardiner hearing was also held to determine aggravating facts for sentencing on the guilty pleas.

The court assessed T.P.'s credibility, which was central to the Crown's case, and found her evidence to be thoroughly undermined by contradictions, implausibilities, and selective memory, particularly when confronted with other evidence like video surveillance and text messages.

The testimony of other witnesses (S.M.D. and S.S.) further contradicted T.P.'s account of her relationship with Moe and the events of the incident.

The court concluded that the Crown failed to prove beyond a reasonable doubt that T.P. was forcibly confined, threatened, or that the sexual intercourse was involuntary.

The defendants brought a motion for a declaration that the plaintiff's statutory secondary market misrepresentation claim under Part XXIII.1 of the Securities Act was statute-barred.

The plaintiff brought a cross-motion seeking an order granting leave nunc pro tunc to save the claim.

The court found that while the plaintiff was not barred by issue estoppel or abuse of process from arguing for a nunc pro tunc order, the request failed on its merits.

Applying the Supreme Court's decision in CIBC v. Green, the court held that a nunc pro tunc order was not available because the plaintiff had not filed a motion for leave before the expiry of the limitation period, and the equitable factors did not favour granting the order.

The defendants' motion was granted and the plaintiff's cross-motion was dismissed.

This addendum to a judgment dated April 1, 2016, clarifies the distribution of proceeds from the sale of the matrimonial home and orders for costs.

It directs the real estate lawyer to release funds from a holdback to Ms. Iqbal, representing her 50% share and an additional amount from Mr. Jamil's share.

Mr. Jamil is also ordered to pay a remaining balance and costs of $40,000 to Ms. Iqbal, payable to Legal Aid Ontario.