SCJ 2018

The applicant brought a contempt motion to enforce a final order regarding the return of household possessions.

The applicant had hired private investigators to surreptitiously enter the respondent's home under false pretenses to take photographs and videos of the items.

The court dismissed the contempt motion, holding that contempt is a remedy of last resort in family law and should not be used as a first step for enforcement.

The court also noted it would have declined to exercise its discretion to grant contempt due to the applicant's unacceptable conduct in using private investigators.

Furthermore, the court criticized the applicant's counsel for failing to comply with principles of civility and professionalism by unilaterally scheduling the motion and refusing reasonable adjournment requests.

At the commencement of their trial for a home invasion and assault, the accused brought an application to admit evidence of unknown third-party suspects.

The defence sought to cross-examine the complainant on three prior break-and-enter incidents and introduce Facebook photos of the complainant with firearms, arguing the attack was perpetrated by individuals in the drug subculture rather than the accused.

The court dismissed the application, finding an insufficient connection between the prior incidents and the current crime to meet the relevancy threshold required for third-party suspect evidence.

The offender was convicted by a jury of importing 11.5 kilograms of cocaine into Canada.

The Crown sought a sentence of 11 years imprisonment, while the defence sought 6 years.

The court weighed aggravating factors, including the large quantity of drugs and financial motive, against mitigating factors such as the offender's lack of a criminal record and status as a courier.

The court sentenced the offender to 9 years imprisonment, along with a weapons prohibition and a DNA order.

The applicant mother sought sole custody of the parties' 10-year-old child and permission to relocate with the child to Slovakia.

The respondent father opposed the move and sought equal parenting time.

The court found that the child had a strained relationship with the father, who remained fixated on a past domestic incident, while the mother had been the primary caregiver and presented a detailed plan for the relocation.

Applying the best interests of the child test, the court granted the mother sole custody and permitted the move to Slovakia.

The court also ordered the father to pay lump sum spousal and child support based on an imputed income of $75,000.

The applicant, a third mortgagee, brought an urgent application for an injunction to prevent the first mortgagee from selling a commercial property under a power of sale, and for an order permitting it to redeem the mortgage.

The court found that the applicant's right to redeem was extinguished when the first mortgagee accepted an offer to purchase the property, as the applicant had failed to tender the required funds when it had the opportunity to do so.

The court also held that the applicant failed to meet the three-part test for an interlocutory injunction, finding no serious issue to be tried regarding alleged bad faith, no irreparable harm, and that the balance of convenience favoured the respondents.

The application was dismissed.

The plaintiffs and their insurer, Allstate, brought a motion for default judgment against an uninsured snowmobile driver who struck the plaintiff pedestrian.

The plaintiffs had previously settled their first-party claims with Allstate and assigned their rights against the other defendants to the insurer.

The court declined to grant the requested relief, finding that additional materials were required to clarify the nature of the claims being advanced, the steps taken to discontinue against the Crown, and the evidence supporting the quantum of indemnity and costs sought.

The applicant brought a pre-trial motion to exclude evidence obtained from a warrantless entry and search of his residence, arguing his s. 8 and s. 9 Charter rights were violated.

Police had entered the home without a warrant after receiving a 911 call from a witness who observed a man assaulting a woman in a vehicle that was later located in the applicant's driveway.

The court found that the applicant had a reasonable expectation of privacy, but the warrantless entry was justified under the common law exigent circumstances doctrine due to concerns for the woman's safety.

The court also held that the police had reasonable and probable grounds to arrest the applicant and that drugs found in the basement were lawfully seized in plain view.

The application to exclude evidence was dismissed.

The Moving Defendants sought an order requiring the Plaintiff to attend a second psychiatric assessment with Dr. William Gnam, pursuant to Rule 33 of the Rules of Civil Procedure and section 105 of the Courts of Justice Act.

The Plaintiff opposed this, arguing it was an abuse of process as Economical had already obtained a psychiatric assessment from Dr. Veluri.

Alternatively, the Plaintiff requested that if a second assessment was granted, it should be conducted by Dr. Veluri.

The court found that while a second assessment was warranted for trial fairness, the Plaintiff had provided valid reasons to require the assessment to be conducted by Dr. Veluri, who had previously assessed the Plaintiff for Economical.

The court ordered the Plaintiff to attend a second psychiatric assessment with Dr. Ramamohan Veluri.

During a trial for first-degree murder, the Crown sought to leave forcible confinement murder under s. 231(5)(e) of the Criminal Code with the jury as a route to liability.

The accused admitted to shooting the victim but claimed it was an accident.

The court applied the air of reality test and found that, based on the primary facts and circumstantial evidence, a properly instructed jury could reasonably infer that the accused forcibly confined the victim by moving him from the front seat to the back seat of his car at gunpoint before shooting him.

The court ruled that this route of liability would be left with the jury.

The accused, a former financial planner, was convicted of defrauding 41 victims of approximately $10 million through a Ponzi scheme over a 2.5-year period.

The court found numerous aggravating factors, including the large scale of the fraud, breach of trust, and devastating impact on vulnerable victims, with no mitigating factors.

The accused was sentenced to the maximum 14 years' imprisonment, less 10 years' pre-sentence custody credit (including enhanced credit for harsh conditions).

The court also ordered restitution of $10,887,885 and a fine in lieu of forfeiture in the same amount.

The applicant, charged with the second degree murder of his son, brought a mid-trial Scopelliti application to admit evidence of the deceased's propensity for violence.

The applicant sought to introduce evidence of prior violent acts by the deceased, including incidents unknown to the applicant, to support a claim of self-defence.

The court held that evidence of the deceased's disposition for violence unknown to the accused is only admissible if there is some other appreciable evidence that the deceased was the aggressor on the occasion in question.

Finding no such appreciable evidence at the time of the stabbing, the court limited the admissible evidence to incidents known to the applicant and observations of their relationship by specific witnesses, while excluding the deceased's entire criminal record and incidents unknown to the applicant.

The respondents in a Charter application brought a refusals motion seeking to compel three expert witnesses retained by the applicants to re-attend cross-examinations and produce draft affidavits and notes of communications with counsel.

The respondents argued that counsel's assistance in drafting the experts' affidavits raised reasonable grounds to question their independence, thereby waiving litigation privilege.

The court applied the principles from Moore v. Getahun and White Burgess, finding that consultation between counsel and experts is a necessary part of the adversarial process.

The court dismissed the motion, concluding there was no factual foundation to support a reasonable suspicion that counsel improperly influenced the experts.

The accused, Zachariah Piva, was charged with sexual assault.

The complainant, LB, alleged non-consensual sexual activity, while the accused maintained it was consensual.

A third witness, KA, provided inconsistent testimony regarding consent.

The court assessed the credibility and reliability of all witnesses, applying the R. v. W. (D.) test.

The court found that the Crown did not prove the charge beyond a reasonable doubt, particularly regarding the complainant's subjective lack of consent, due to inconsistencies in her testimony and the corroborating evidence from the third witness and the accused.

The accused was acquitted.

The applicant, charged with numerous drug trafficking and organized crime offences, sought a bail review under s. 520(1) of the Criminal Code to vacate a detention order.

The applicant argued the justice of the peace erred in law by rejecting the proposed sureties and conflating drug trafficking with trafficking for a criminal organization.

The Superior Court found no error in law, noting the overwhelming evidence of the applicant's high-ranking position in a mafia organization and the massive scale of the drug transactions.

The court upheld the detention on both the secondary and tertiary grounds, concluding that release would bring the administration of justice into disrepute.

The applicant sought declarations and orders against the condominium corporation and a board member for alleged failures to fulfill obligations under the Condominium Act, including inadequate funding of reserve accounts, failure to increase common expenses, and neglect of necessary repairs.

The respondents argued that the issues were being addressed by a new management company and that the business judgment rule applied.

The court dismissed the application, finding no evidence that the board had acted unfairly or unreasonably, or that court intervention was required.

The applicant sought to recognize and enforce a default judgment and permanent injunction obtained in Texas against the respondents for breach of a film production agreement.

The respondents, who were properly served but did not participate in the Texas proceedings, opposed the application.

The court found a real and substantial connection to Texas, as the contract was formed there.

The court also found the judgment was final and no defences to enforcement applied.

The application was granted, and the Texas judgment, including its injunctive relief, was recognized and enforced in Ontario.

The accused, Leonard Borne, applied for an order permitting a challenge for cause in his jury trial for sexual assault charges, alleging potential juror impartiality due to the #MeToo movement and its "believe the victim" slogan.

The court dismissed the application, finding insufficient evidence of widespread bias that would prevent jurors from setting aside prejudice despite proper judicial instructions and existing trial safeguards.

The applicant sought certiorari quashing committals entered after a preliminary inquiry on human trafficking and procuring counts involving two young complainants.

The court held that the reviewing function on certiorari is confined to jurisdictional error and that the preliminary inquiry justice had some evidence on each essential element capable of supporting committal.

The court further held that the preliminary inquiry justice considered the whole of the evidence, including exculpatory features relating to the applicant’s comparatively diminished role.

Although the reasons did not separately analyze the procuring counts in detail, the evidentiary record disclosed a sufficient basis to support committal on those counts as well.

The application was dismissed.

The applicant sought clarification on the form of redacted Information to Obtain (ITO) documents following a non-publication order protecting their identity.

The court ordered that gender-identifying pronouns in specific paragraphs be redacted or replaced with 'it' to ensure consistency and protect the applicant's identity.

The court also rejected a proposed 'Warning' format that would leave identifying information visible but subject to a publication ban, ordering instead that the identifying information be fully redacted from the public versions of the ITOs pursuant to section 487.3 of the Criminal Code.

The plaintiff sought costs of approximately $3,000 for a motion heard on January 13, 2017, where the court granted possession of the subject property and enjoined a sale under power of sale.

The mortgagee, 1746878 Ontario Inc., argued it should not be liable for costs as it took no part in that motion.

The court agreed, noting that 1746878 Ontario Inc. did not appear until a later date, and declined to order costs against it for the January 13 motion.