SCJ 2020

The accused brought a severance motion in a prosecution involving child luring, sexual assault, sexual interference, and related breach charges arising from allegations by two young complainants.

The court accepted that the fail to comply charges should be severed from the sexual offence counts, but refused to sever the counts relating to each complainant from one another.

Applying the interests of justice analysis under s. 591(3) of the Criminal Code and the framework in Last, the court found a strong factual nexus, significant overlap in digital and disclosure evidence, the prospect of similar fact reasoning, and a serious risk of re-traumatizing vulnerable complainants through duplicate testimony.

The court held that any prejudice to the accused could be managed by jury instructions and that separate trials would undermine efficiency and the truth-seeking function.

The Crown appealed an acquittal for assault, arguing that the trial judge's reasons were insufficient for appellate review and revealed reliance on impermissible stereotypical thinking about how victims of domestic abuse behave.

The Superior Court found that the trial judge's sparse reasons frustrated meaningful appellate review and that the comment regarding the complainant's failure to report the "gravamen of the offence" to officers could reflect an impermissible stereotypical inference.

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

This fifth case management endorsement addresses several procedural matters, including the rescheduling of examinations for discovery after the plaintiffs failed to attend, the completion of mandatory mediation, the transition of a minor plaintiff to an adult plaintiff requiring an order to continue, and the status of demands for particulars and freedom of information requests.

It also sets out directions for potential summary judgment motions and schedules the next case management conference.

The applicant, Holly Whittaker, faced charges of possession of fentanyl for the purpose of trafficking and simple possession.

She brought two Charter applications: one alleging violation of her right to silence and right to counsel (ss. 7 and 10(b)) regarding an utterance about a purse, and another alleging unlawful arrest (s. 9) and unreasonable search and seizure (s. 8) leading to a strip search and seizure of fentanyl.

The court found a breach of s. 10(b) regarding the utterance, as police elicited evidence after she requested counsel without providing an opportunity to speak with counsel.

The court also found a breach of s. 9 and s. 8, concluding that the arrest lacked objective reasonable and probable grounds, as the confidential informant's tip was uncorroborated and unreliable.

Applying the Grant test, the court excluded both the utterance and the seized fentanyl and purse under s. 24(2) of the Charter.

W.S., a 20-year-old with significant mental health issues, appealed a Consent and Capacity Board decision that found her incapable of managing property.

The Board's finding was based on her inability to appreciate the foreseeable consequences of acquiring alcohol, leading to self-harm.

The Superior Court of Justice found that the Board committed an error of law by characterizing the decision to acquire alcohol as a decision in property management without other evidence of property management issues, and that the physician's assertion of W.S. "repeatedly running out of money" was uncorroborated.

The court emphasized that capacity to manage property must relate to financial matters, not solely to control behavior unrelated to property.

The Board's finding of incapacity was set aside.

J.W. appealed a Consent and Capacity Board decision confirming her incapacity to consent to mental disorder treatment.

Despite J.W.'s non-attendance and lack of engagement in the appeal process, the Superior Court of Justice proceeded with the appeal, admitting fresh evidence regarding J.W.'s hospital attendances and the respondent's efforts to contact her.

Applying appellate standards of review, the court found no palpable and overriding error in the Board's factual findings and denied the appeal, upholding the incapacity finding.

The applicant, who had been convicted of fraud, applied to reopen a stay of proceedings application based on alleged Charter violations.

He argued that his s. 8 rights were violated by the frequent and allegedly public manner of strip searches while in pre-trial custody, and that his s. 7 rights were violated by the previous Crown counsel's refusal to consent to an adjournment amidst late disclosure.

The court dismissed the application, finding that the strip searches were conducted in accordance with policy and justified by institutional security concerns, and that the Crown's conduct did not amount to bad faith or shock the conscience of the community.

The court concluded that this was not one of the clearest of cases warranting the extraordinary remedy of a stay of proceedings.

Sarai Lopez Iglesias, charged with first-degree murder, applied for bail.

The Crown opposed, citing the strength of the case, the gravity of the offence, and concerns on primary and secondary grounds.

The applicant proposed a robust bail plan including house arrest with sureties (her mother and step-father), electronic monitoring, and a substantial pledge.

The court, while acknowledging the strong Crown case and serious nature of the charge, found that the proposed plan, particularly the full-time supervision by the mother, was sufficient to address the concerns on the primary, secondary, and tertiary grounds, and granted bail.

The defendant, Ahmed Mohamed Marzouk, was charged with robbery contrary to s. 343 of the Criminal Code.

The court found that a robbery occurred as described by the complainant, Mr. Hinds.

The central issue was the identification of the perpetrator.

The defendant presented an alibi, claiming he was in class at York University, but failed to provide sufficient corroborating evidence and was found to have lied on the witness stand.

The court applied the W.(D.) analysis and, after discrediting the defendant's testimony, found strong corroborating evidence identifying the defendant as the robber, including phone contact, meeting location near his residence, physical description, and subsequent location of the stolen vehicle.

The defendant was found guilty.

This endorsement followed the twelfth case management conference, addressing the progression of the action towards trial.

The court noted the completion of pleadings and examinations for discovery.

A key issue was the non-compliance of one defendant with a previous cost order of $44,000.

The plaintiffs, prioritizing trial scheduling, reserved their right to seek remedies for non-compliance.

The court issued specific directions for trial readiness, including deadlines for expert reports, filing of the Trial Record, and a certification form for setting pre-trial and trial dates.

Parties were also directed to confer on adopting a summary trial format versus an ordinary trial.

The plaintiff tenant moved for an injunction or relief from forfeiture after the defendant landlord terminated its commercial lease for non-payment of rent.

The tenant had a history of late payments, and its rent cheque was returned due to a frozen bank account.

The premises had also suffered two floods, and the tenant had ignored fire code violations.

The court denied the injunction but granted relief from forfeiture, noting the disproportionate impact termination would have on the tenant's investment.

Relief was granted on strict conditions, including payment of all rent arrears, expenses, and full indemnity costs.

The Attorney General of Canada appealed a Master's decision allowing claims for damages by Vivian Bercovici against Katie Telford, Chief of Staff to the Prime Minister, to proceed.

The claims arose from Bercovici's dismissal as Canada's Ambassador to Israel and included intentional infliction of mental suffering and bad faith post-termination conduct.

The Master had dismissed the mental suffering claim but allowed the bad faith claim to proceed against Telford personally.

The Superior Court of Justice, on appeal, found that under Ontario law, only employers can be liable for bad faith conduct committed by their employees within the scope of employment regarding employment contracts.

Consequently, the personal claim against Katie Telford for bad faith post-termination conduct was dismissed.

Leave was granted to Bercovici to amend her Statement of Claim to plead conduct beyond the scope of employment.

The accused sought to cross-examine the complainant at trial using emails exchanged between them regarding their marriage breakdown and separation agreement.

The Crown argued the emails were 'records' under section 278.1 of the Criminal Code, requiring a hearing under section 278.92.

The court found that the emails contained personal information with a reasonable expectation of privacy, thus constituting records.

The court also held that the recent amendments to section 278.1 were procedural in nature and operated retrospectively, applying to the accused's trial despite the charges predating the amendments.

The applicant, who had pled guilty to multiple counts of fraud and received a 360-day sentence, appealed his conviction and sentence.

He brought an application under s. 684 of the Criminal Code for the assignment of counsel for his summary conviction appeal, arguing his guilty plea was uninformed regarding the start date of his sentence.

The court dismissed the application, finding no arguable issue as the sentencing judge had clearly explained the sentence and the applicant, a seasoned offender, raised no concerns.

The court also noted the applicant was capable of representing himself.

A Crown motion to summarily dismiss the appeal was dismissed without prejudice due to lack of notice.

Following the dismissal of both the main action and the counterclaim, the court determined the costs payable to each party.

The defendant, a self-represented lawyer, was awarded $20,000 on a substantial indemnity basis for the main action, reduced from his claim due to a lack of evidence of lost remunerative opportunity.

The plaintiff was awarded $18,000 on a partial indemnity basis for successfully defending the counterclaim.

The court ordered a set-off, resulting in a net costs award of $2,000 payable to the defendant.

This trial addressed the equalization of net family property and spousal support following a short, financially separate marriage.

The court found no equalization payment owing as both parties had negative net family property, deemed zero under the Family Law Act.

For spousal support, no compensatory entitlement was found, but a needs-based entitlement was recognized due to the respondent's decline in living standard post-separation.

A lump sum spousal support of $26,500 was awarded to the respondent.

The applicant's claim for damages related to a matrimonial home designation was dismissed due to lack of legal basis and evidence.

The applicant, an engineering firm, sought insurance coverage from the respondent for a professional negligence claim.

The claim arose from a reserve fund study completed in November 2013, which allegedly failed to identify a corroded lamppost.

A worker was injured in October 2015 due to the lamppost's collapse.

The insurer denied coverage based on a retroactive date exclusion clause (September 11, 2015), arguing the "incident" was the negligent study preparation (2013), which occurred before the retroactive date.

The applicant contended the "incident" was the worker's injury (2015), which occurred after the retroactive date.

The court dismissed the application, finding that the word "incident" in the exclusion clause unambiguously referred to the alleged misconduct in 2013, not the subsequent injury in 2015.

The parties, self-represented, sought final orders regarding custody and parenting time for their eight-year-old child, Dylan, following their separation in 2012.

The applicant sought joint custody and equal parenting time on a week-on/week-off basis.

The respondent sought sole custody and continuation of the existing parenting schedule.

The court granted joint custody, finding sufficient cooperative parenting history, but denied the applicant's request for equal parenting time, emphasizing the child's need for stability and consistency over the proposed unpredictable schedule.

The existing parenting schedule was continued, and a divorce was granted.

The plaintiffs, investors in mutual funds managed by Crystal Wealth, lost their life savings due to fraud by the fund's management.

They sought to certify a class action in negligence against BDO Canada LLP, the fund's auditor, alleging that BDO's failure to conduct proper audits delayed the discovery of the fraud.

The court dismissed the certification motion, finding it plain and obvious that the plaintiffs' pleading did not disclose a legally viable cause of action.

Applying established jurisprudence, the court held that BDO did not owe a proximate duty of care to the individual investors for their pure economic losses.

The plaintiff, Dimostenis Karpouzis, sued the City of Toronto for negligence (occupiers' liability) and public nuisance after suffering a serious brain injury while skateboarding at night on an unlighted recreational trail in a city park.

The City moved for summary judgment to dismiss the action.

The court granted the City's motion, finding that the City did not act with reckless disregard under the Occupiers' Liability Act, as the risks of using an unlit trail at night were obvious and willingly assumed by the plaintiff.

The public nuisance claim was also dismissed, as keeping a forested park open at night with an unilluminated trail was not found to interfere unreasonably with public health, safety, or convenience.