SCJ 2021

Vanessa Porchetta appealed her conviction for driving with over 80 mg of alcohol, arguing breaches of her s. 10(b) Charter rights and an error in relying on hearsay evidence for the alcohol standard solution.

The trial judge found two s. 10(b) breaches but declined to exclude the breath readings under s. 24(2) of the Charter, deeming the breaches technical and their impact minimal.

The appeal court upheld the trial judge's decision, finding no unreasonable factual findings or errors in law regarding the Charter analysis or the admissibility of the breath technician's evidence concerning the alcohol standard solution.

The appeal was dismissed.

This endorsement addresses two motions in a family law dispute concerning child access, child support, and property division.

The respondent father sought expanded unsupervised access, while the applicant mother sought to maintain supervised access and an advance from matrimonial home proceeds.

The court ordered a graduated transition to unsupervised access for the father, found child support arrears, directed payment of these arrears from the father's share of the matrimonial home proceeds, and ordered partial release of funds from the matrimonial home proceeds to both parties, with a larger amount to the mother.

The motion was adjourned for further review of access and costs submissions.

This was an undefended trial where the applicant sought general and special damages for physical injuries and loss of income resulting from a brutal assault by the respondent.

The respondent was served but failed to file an answer or appear.

The court also addressed the sale of a jointly-owned residence.

The judge awarded the applicant $60,000 in general damages and $8,700 in special damages, taking into account significant aggravating factors of the assault.

The order also provided for the payment of damages from the respondent's share of the proceeds from the sale of the jointly-owned property, with the property sale issue remaining before the court for further directions.

The applicant sought a stay of proceedings for unreasonable delay under s. 11(b) of the Charter, arguing that late disclosure by the Crown prevented him from re-electing a judge-alone trial, thereby causing delay.

The court dismissed the application, finding that the primary reason for the trial not proceeding was the suspension of jury trials due to the COVID-19 pandemic, which constituted an exceptional circumstance.

The court also found that the applicant failed to prove that the late disclosure was the sole reason for not re-electing, noting other factors like the complainant's COVID-19 symptoms.

The defendant, Prince Adjei-Boateng, was charged with trafficking heroin and possession of proceeds of crime following an undercover police investigation.

The Crown alleged he was the supplier for a drug dealer, Michael Patania.

The court considered the admissibility of co-conspirator statements and the defendant's spontaneous exculpatory statement.

Despite strong circumstantial evidence, the court found reasonable doubt due to inconsistencies in the evidence, corroboration of the defendant's alternative explanation (used car parts business), and the police's failure to examine seized cell phones for direct communication between the defendant and the drug dealer.

The defendant was acquitted on all charges.

The Applicant sought an order for the sale of a property in which she held a 50% interest via a trust agreement, and an adjustment of temporary child support.

The Respondent filed a cross-motion seeking to reduce/expunge child support arrears and declare the property solely his, attempting to set aside the trust agreement.

The court ordered the sale of the property, dismissing the Respondent's request to invalidate the trust agreement due to lack of evidence.

The court imputed income to the Respondent at a higher level due to insufficient financial disclosure and adjusted child support accordingly, including a set-off amount.

The Respondent's request to expunge child support arrears was dismissed due to his unilateral cessation of payments.

The plaintiffs, Ezra Levant and Rebel News Network Ltd., commenced a defamation action against Brendan Demelle and The Narwhal News Society.

Demelle brought a motion under section 137.1 of the Courts of Justice Act to dismiss the action as a strategic lawsuit against public participation (SLAPP).

The court found that Demelle's expression related to a matter of public interest.

While the plaintiffs established grounds to believe their defamation claim had substantial merit and that Demelle had no valid defences (justification, fair comment, responsible communication), they failed to provide sufficient evidence of specific harm suffered as a direct result of Demelle's publication.

Consequently, the court dismissed the plaintiffs' action, as they did not clear the threshold of showing harm and causation required for the public interest in continuing the proceeding to outweigh the public interest in protecting the expression.

The plaintiff, Mark Styres, brought an action against the defendant, Alison Martin, seeking a declaration of resulting trust and restitution for unjust enrichment regarding a property he transferred to her during their common-law relationship.

He also claimed damages for breach of fiduciary duty.

The court found that no fiduciary duty existed, as the defendant did not exercise powers of attorney or act in a fiduciary capacity.

The claim for resulting trust failed because the transfer was not gratuitous, as the defendant paid off the plaintiff's mortgage on the property.

The claim for unjust enrichment also failed as the plaintiff did not demonstrate a lack of donative intent for the transfer, and his subsequent actions were consistent with a gift.

The action was dismissed.

The Public Guardian and Trustee applied for an order appointing it as the permanent guardian of property for the respondent, Diane MacFarlane, under section 22 of the Substitute Decisions Act, 1992.

The application was based on evidence that Ms. MacFarlane was incapable of managing her property, including a capacity assessment report indicating cognitive impairment and anecdotal evidence of her inability to understand financial information and the consequences of her decisions, such as attempting to give away large sums of money to an "Elvis impersonator." The court found Ms. MacFarlane incapable of managing property as defined by section 6 of the SDA and appointed the PGT as her permanent guardian of property.

The court also addressed and ordered the payment of costs for both the PGT and Section 3 Counsel from Ms. MacFarlane's property.

The plaintiffs initiated a class action against numerous governmental and international entities, including Pope Francis and Queen Elizabeth II, alleging harms from COVID-19 protocols and constitutional infringements.

Several defendants moved to dismiss the action under Rule 2.1.01 of the Rules of Civil Procedure.

The court found the statement of claim to be frivolous, vexatious, and an abuse of process due to its rambling nature, irrelevant historical allegations, and lack of specific legal basis for claims.

The action was dismissed in its entirety against all defendants, with no costs awarded.

The plaintiff, Diamond Drywall Contracting Inc., brought a motion to extend the time for serving its statement of claim, which was opposed by the defendants who also sought a declaration that the lien had expired and the action be dismissed due to non-service.

The court granted the plaintiff's motion, finding the explanation for the nine-month delay "borderline" but acceptable, particularly given the COVID-19 pandemic and the absence of actual prejudice to the defendants.

The defendants' motion was dismissed.

Despite losing on the substantive motions, the defendants were awarded $5,000 in partial indemnity costs, as the litigation was necessitated by the plaintiff's initial failure to serve the statement of claim within the statutory period.

This interjurisdictional support application concerned a mother's claim for retroactive child support and contribution to daycare expenses from the father.

The court declared paternity based on the father's admissions.

While the mother sought child support based on an imputed income of $50,000, the court imputed minimum wage income due to insufficient evidence.

The claim for daycare expenses was temporarily dismissed pending further documentary evidence from the mother.

This is a placeholder decision indicating that the reasons for judgment are not yet available.

No details regarding the facts, legal issues, or outcome of the case are provided.

The accused, Stefan Ryan, facing a multi-count indictment for assaults including attempted murder, sought to sever counts related to unidentified victims from those with named victims.

The alleged assaults occurred within a two-hour timeframe in close proximity.

The court dismissed the severance application, finding a significant factual and evidentiary overlap between the counts.

The judge determined that separating the counts would result in nearly identical, lengthy trials, impairing trial efficiency and the truth-seeking function.

The court also noted that the risk of prejudice was mitigated by the fact that the trial would be by judge alone.

The Safe Harbour defendants sought to schedule a motion for partial summary judgment.

The plaintiff opposed, citing the recent Court of Appeal decision in *Malik v. Attia*, which set out three requests for judges considering partial summary judgment motions.

The court applied the "bright line rule" from *Mason v. Perras Mongenais* and *Butera v. Chown, Cairns LLP*, finding that a risk of duplication or inconsistent verdicts existed due to common issues, including the limitation period and the cause of the land re-designation.

The court also considered the cost-effectiveness of proceeding with a partial summary judgment.

The motion to schedule the partial summary judgment was refused.

The City of Toronto, as Third Party, brought a motion to amend its Statement of Defence to the Third Party Claim to plead two statutory defences under the City of Toronto Act, 2006: failure to provide written notice (s. 42(6)) and that damages were caused by an object on an untraveled portion of the highway (s. 42(4)).

The Defendants opposed the motion, arguing presumed prejudice due to the late stage of the proceedings and that the proposed defences lacked merit.

The court, acting as case manager and trial judge, granted the motion, finding no actual or presumed prejudice and reiterating that the test for allowing an amendment to pleadings is not whether the defence will ultimately succeed at trial.

This case addresses a motion and cross-motion in a high-conflict family dispute concerning parental alienation and non-compliance with prior parenting orders.

The Respondent Mother sought temporary custody and an order for the children to attend a "Family Bridges" reunification workshop, alleging the Applicant Father's systematic alienation and sabotage of therapeutic efforts.

The Applicant Father denied the allegations and sought a focused assessment.

The court found the Applicant Father consistently breached previous orders by involving the children in adult disputes and undermining reunification therapy.

The court granted the Respondent Mother's requested relief, including temporary sole custody, enrollment in the Family Bridges program, a restraining order against the Applicant Father, and ordered him to cover the workshop and aftercare costs.

The Applicant Father's cross-motion was dismissed.

This endorsement addresses the costs arising from an appeal and underlying arbitration concerning child vaccination decisions.

The appellant father had successfully appealed an arbitrator's decision, gaining sole final responsibility for vaccination-related decisions for the children.

The court considered the principles governing costs awards, including the presumptive entitlement of the successful party, the treatment of pro bono counsel for costs recovery, and the assessment of offers to settle.

The court found the appellant was the successful party but did not beat his offer to settle.

It concluded that costs on a partial indemnity scale were appropriate, ordering the respondent to pay the appellant $52,000 all-inclusive for costs of both the appeal and arbitration.

The plaintiff law firm sought to enforce a liquidated damages clause against a departing partner.

The defendant partner counterclaimed for repayment of a capital account loan and unpaid draw.

The court dismissed the plaintiff's claims, finding the liquidated damages clause inapplicable as the defendant's departure qualified as a retirement under the partnership agreement.

The court allowed the defendant's counterclaim for the capital account repayment and interest on the portion withheld by the firm, but dismissed the claim for the unpaid draw.

The defendants, the City of Belleville and a by-law officer, brought a motion under Rule 21.01(1)(b) to strike the plaintiff's 235-page statement of claim for disclosing no reasonable cause of action.

The plaintiff's claim was based on a mistaken belief that private property is immune from municipal by-laws, and included various ill-defined allegations such as trespass, breach of agreement, double jeopardy, limitations, legal non-conforming status, Charter violations, Criminal Code violations, harassment, and slander.

The court found the statement of claim hopelessly flawed and struck it in its entirety, concluding that none of the alleged claims had merit and could not be salvaged by amendment.

Costs were awarded to the defendants.