SCJ 2017

The applicants, charged with first-degree murder, brought a Charter application alleging s. 8 violations regarding the search of a trailer on their property and the subsequent warrantless seizure and technological examination of laptops and USB drives found inside.

The court held that the initial search of the trailer was lawfully executed because police took control of the premises within the time specified in the warrant.

The warrantless seizure of the electronic devices was justified under s. 489 of the Criminal Code as the officers had reasonable grounds to believe they would afford evidence.

However, the court found s. 8 violations occurred when an officer conducted a warrantless preview of a USB drive, when the subsequent search warrant failed to authorize a technological examination, and when detention orders were improperly extended.

The plaintiff, Maria Struik, sought enforcement relief by way of a motion to appoint herself as receiver over the assets of Dixie Lee Ontario Ltd. (DLOL) and to prohibit the transfer or encumbrance of DLOL's assets.

The defendants, DLOL and Noele Murano, did not object to the asset prohibition but opposed the plaintiff's appointment as receiver, arguing that ordinary execution remedies were sufficient and that the plaintiff might be prejudiced by the appointment due to past allegations.

The court, exercising its discretion under section 101 of the Courts of Justice Act and rule 60.02 of the Rules of Civil Procedure, found it just and convenient to appoint the plaintiff as receiver, citing her extensive experience with Dixie Lee Chicken operations, the complexity of the assets, the additional expense of a private receiver, and a history of non-compliance and misleading information from the defendants.

The court granted the order as sought by the plaintiff.

The accused was charged with three counts of attempted murder and one count of attempting to possess a prohibited firearm.

The court found that while the accused possessed the specific intent to kill, his actions regarding the attempted murder of the complainant's children did not progress beyond mere preparation, thus failing to establish the actus reus.

Consequently, he was found not guilty of attempted murder.

However, the court found that the accused's actions and inquiries to obtain a firearm constituted an attempt to possess a prohibited firearm, finding him guilty of that charge.

This endorsement addresses the costs of a successful motion brought by the defendant to set aside a judgment obtained by the plaintiff.

The court ordered the plaintiff to pay the defendant $12,000 in costs on a partial indemnity basis.

The decision emphasized the plaintiff's breach of its duty of full and fair disclosure on a motion brought without notice, and its failure to consent to set aside the judgment when offered without costs.

The court applied factors under Rule 57.01 of the Rules of Civil Procedure and section 131 of the Courts of Justice Act, balancing indemnity for the successful party with access to justice.

The court also dismissed the plaintiff's request to pay costs into court due to the defendant's bankruptcy, finding no basis to hold funds for a potential trustee claim.

The Crown sought a pre-trial ruling on the voluntariness and admissibility of a video statement provided by the accused to police.

The accused argued the statement was involuntary due to alleged excessive force during arrest.

The court found that the brief and reasonable force used by police during the arrest, which occurred ten hours prior, did not impact the accused's state of mind when giving the statement to an officer not involved in the arrest.

No threats or inducements were found.

The statement was deemed voluntary and admissible.

This ruling on application addresses the equalization of net family properties and spousal support following the separation of a couple married for nearly 30 years.

The court determined the separation date as 2010, despite conflicting evidence, and proceeded to divide assets to ensure financial security for both parties.

The applicant was awarded the matrimonial home, a global support payment, and an equal share of proceeds from a Portuguese property, while the respondent retained an income-generating property.

The Crown sought to admit a video statement made by the accused, Chak-Lam Wong, in a second-degree murder trial concerning the death of his 14-month-old niece.

The defence contested its admissibility, arguing it was not voluntary due to inadequate cautioning, misleading information from police regarding the right to silence, and an accusatorial interview style, despite the accused not being under arrest or detention.

The court found that Wong was objectively a suspect at the time of the interview and was not properly cautioned.

Despite speaking with duty counsel, the police officer's erroneous advice about the right to silence created confusion and misled Wong about his jeopardy.

Considering the totality of the circumstances, including the prolonged and aggressive questioning, the court found a reasonable doubt as to the voluntariness of the statement and dismissed the Crown's application for its admission.

The plaintiff property owner sued the adjacent dry cleaning business and its principal for environmental contamination caused by the migration of dry cleaning solvents (PCE/TCE) onto his lands.

The court dismissed claims in trespass, strict liability, and negligence, but found the corporate defendant liable in private nuisance and under section 99 of the Environmental Protection Act.

The individual defendant was not found liable as he did not own or control the pollutant at the time of the spills and his subsequent inaction did not cause the plaintiff's damages.

The court awarded the plaintiff $1,632,500 for remediation costs and $201,726.71 for engineering expenses.

The defendant George Pappas moved to set aside a default judgment obtained by the plaintiff Lucy Romero, arguing irregularity in the judgment and offering an explanation for default.

The court found a clear irregularity as the judgment ordered Pappas to pay a sum not requested in the statement of claim against him.

The court also considered the test for setting aside default judgment, finding Pappas's explanation plausible and an arguable defence, with no prejudice to the plaintiff.

The motion to set aside the default judgment against Pappas was granted, and all enforcement proceedings against him were stayed.

The defendant was convicted of dangerous driving causing bodily harm after a motorcycle collision where he was speeding and weaving through traffic, striking a pedestrian on the sidewalk who sustained severe injuries.

The court considered general deterrence and denunciation as primary sentencing factors, along with mitigating factors such as no alcohol involvement and a non-intentional act.

Despite the defendant's expression of sorrow, the court noted his continued denial of fault and intent to resume motorcycle riding.

The court sentenced the defendant to 12 months in custody, 2 years' probation, and a 5-year motorcycle driving prohibition, declining ancillary DNA and firearms orders.

The applicant's motion for temporary relief was dismissed, and the respondent sought costs as the successful party.

The court acknowledged the respondent's complete success but emphasized the applicant's limited ability to pay and the financial hardship faced by both parties.

Finding no unreasonable conduct by the applicant, the court fixed costs at $1,250, inclusive of disbursements and HST, payable at a rate of $25 per month.

The applicant was completely successful on a motion for the sale of the matrimonial home and boat.

The applicant sought full indemnity costs of $38,597, arguing the respondent's allegations of financial impropriety were unreasonable and unnecessarily complicated the proceedings.

The court agreed, finding the respondent's conduct egregious and noting the applicant had made multiple reasonable settlement offers.

The court awarded the applicant $38,500 in costs, to be paid from the respondent's share of the net sale proceeds of the matrimonial home.

The court addressed the parties' inability to agree on an expert to prepare a Voice of the Child (VOC) Report for their 14-year-old son, Kent, as previously ordered.

After considering submissions from both the applicant mother and respondent father, the court appointed Janet Claridge, a neutral third-party expert, to prepare the VOC report.

The decision emphasized the importance of expert neutrality, rejecting candidates with prior involvement in the family's case due to potential bias.

The parties were ordered to equally share the costs of the report.

This costs decision followed a trial addressing pension equalization, retroactive and ongoing spousal support, and medical expenses.

The court found success to be mixed, but the Applicant (Wife) was marginally more successful overall, despite her unreasonable conduct regarding the pension equalization.

The Respondent (Husband) was unsuccessful on a motion to amend his Answer.

Neither party fully achieved their offers to settle.

Applying Rule 24 of the Family Law Rules, the court considered the parties' conduct, offers, complexity, and proportionality of legal fees, noting the Husband's disproportionately high costs.

The Husband was ordered to pay the Wife $7,500 plus HST and disbursements of $671 plus HST.

The applicant, an unsuccessful candidate in a 2014 municipal election, failed to file an audited financial statement by the statutory deadline, resulting in her ineligibility to run in the next municipal election.

Almost two years later, she sought relief from forfeiture under s. 98 of the Courts of Justice Act to permit late filing and removal from the "Candidates in Default" list, primarily to secure a provincial party nomination.

The court dismissed the application, finding that the applicant failed to demonstrate that her non-compliance was inadvertent or that she had been sufficiently diligent in attempting to remedy the breach.

The court emphasized the importance of timely financial disclosure for public policy and declined to exercise its equitable discretion.

The applicant mother, Andrea Bolla, brought an application for custody in Ontario after wrongfully removing her two children from Botswana, where they habitually resided with the respondent father, Alias Swart.

The central issue was whether the Ontario court should accept jurisdiction, which required the applicant to establish a risk of "serious harm" to the children if returned to Botswana under s. 23 of the Children's Law Reform Act.

The court found the applicant's claims of abuse, corruption in the Botswana legal system, and the children's anxiety to be unsubstantiated or insufficient to meet the high threshold of "serious harm." The court ordered the children's return to Botswana for custody proceedings to continue there, with undertakings from the father to mitigate short-term harm.

The maternal grandmother brought a motion for access to her two grandchildren pending her appeal of a trial decision granting Crown wardship without access.

Due to systemic delays, the motion was heard two months after access had been terminated and a good-bye visit had occurred.

The court found that while access with one child had been meaningful, restoring access now would expose the child to the risk of a second final separation if the appeal failed.

Assessing the appeal as unlikely to succeed, the court concluded that restoring access was not in the child's best interests and dismissed the motion.

The Defendants sought leave to appeal a series of interim decisions by Snowie J., which included granting injunctions against defamation and harassment, a publication ban, and substantial costs awards, in two separate actions brought by S.R. and V.B. against the Defendants.

The court granted leave to appeal on all issues, finding conflicting legal principles regarding defamation injunctions, uncertainty in the evolving torts of harassment and intrusion upon seclusion, and procedural irregularities and open court principle concerns regarding the publication ban.

The costs award was also subject to appeal as it flowed from the underlying decisions.

The Third Party, Frederick Page, brought a motion for summary judgment against the Defendant, Ronald Sharman, seeking dismissal of the Third Party Claim.

The claim arose from a motor vehicle collision where Sharman rear-ended the Plaintiff, Khow Chin Hew, and sought to apportion liability to Page, alleging Page's sudden stop was negligent.

The court applied the Hryniak v. Maudlin test for summary judgment, finding no genuine issue requiring a trial.

It was determined that Page's braking and left turn were not negligent, as the vehicles immediately behind him stopped safely, and Sharman was found to be following too closely given his vehicle and road conditions.

The motion for summary judgment was granted, and the Third Party Claim against Page was dismissed with costs.

The United States of America sought the extradition of Osayi Edison Omoruyi on charges related to an international fraud scheme.

The Attorney General of Canada applied for a committal for prosecution under the Extradition Act, alleging Omoruyi participated in inducing victims to send funds to Nigeria, representing the Canadian offence of possession of property obtained by crime.

The defense challenged identification and the fungible nature of money.

The court, acting as an extradition judge with a limited screening function, found sufficient admissible evidence to establish a prima facie case for committal, including strong circumstantial evidence linking Omoruyi to the fraudulent transfers.

Omoruyi was committed into custody to await surrender.