SCJ 2021

The applicants, the RCMP Registrar of Firearms and a section head, sought to quash subpoenas requiring them to testify at a reference hearing in the Ontario Court of Justice regarding the revocation of firearms registration certificates.

The respondents had obtained the subpoenas under section 698 of the Criminal Code.

The Superior Court of Justice held that a reference under the Firearms Act is not a proceeding to which the Criminal Code applies, as it is more akin to an administrative or civil proceeding.

Consequently, the subpoenas were quashed.

The applicant paternal grandmother sought contact with her grandson.

The respondent mother agreed to a gradual resumption of contact, while the respondent father supported the application but did not otherwise participate.

The father had previously commenced a divorce proceeding in Perth, which automatically stayed the grandmother's application under s. 27 of the Children's Law Reform Act.

The court lifted the stay, finding no bad faith, prejudice to the mother if the stay remained, and a waste of court resources if the matters were not dealt with together.

A consent order for grandparent contact was issued, and the mother's claims against the father were directed to an uncontested trial.

The respondent father brought a motion to vary a temporary order to increase his parenting time with three of his children.

He alleged that the applicant mother was alienating the children from him and that increased time would provide greater predictability.

The applicant opposed the motion, citing differing parenting styles, safety concerns regarding COVID-19, and the children's expressed preferences.

The Office of the Children's Lawyer submitted that the current arrangement was consistent with the children's views.

The court dismissed the motion, finding no compelling reasons or demonstrated change in circumstances to justify altering the interim parenting schedule, noting that the children's comfort with the status quo was not persuasively linked to alienation.

The accused was tried on two counts of sexual interference involving an 11-year-old complainant: one count for sexual touching and one count arising from two kissing incidents.

The court granted the Crown's cross-count similar fact application, holding the evidence on each count was probative of the other and provided context for the complainant's conduct.

Applying the W.(D.) framework and relying heavily on the complainant's immediate disclosure to her mother as a spontaneous utterance, the court rejected the accused's denial and found that inconsistencies in peripheral details did not undermine the core allegations.

The court also rejected the defence theory of fabrication based on family conflict and motive.

The accused was found guilty on both counts.

The parties were common law spouses who cohabited for 13 years and had two children.

Following separation, the applicant father sought child support, spousal support, and half the increased value of the respondent mother's pension based on unjust enrichment.

The court imputed income to the father for child support purposes, finding him underemployed after starting his own business.

The court dismissed the father's claims for spousal support, finding no compensatory or non-compensatory basis, and dismissed his claim for a share of the mother's pension, finding no clear link between his contributions and the pension's growth.

During a trial for attempted murder and aggravated assault, a key Crown witness refused to be sworn and testify.

The Crown brought an application under section 715(1) of the Criminal Code to admit the witness's testimony from the preliminary inquiry.

The accused opposed the application, arguing he did not have a full opportunity to cross-examine the witness at the preliminary inquiry because he subsequently obtained new impeachment materials.

The court held that the accused had a full opportunity to cross-examine and that admitting the prior testimony would not occasion unfairness, provided the newly discovered impeachment materials were also admitted into evidence.

The Crown's application was granted subject to conditions.

The plaintiff underwent a laparoscopic hysterectomy performed by the defendant gynaecologist, during which her colon was perforated, requiring subsequent reconstructive surgery.

The plaintiff brought a medical malpractice action alleging the defendant failed to obtain informed consent, failed to review prior operative reports, lacked the skill to perform the surgery given her anatomy, and negligently caused the perforation.

The court dismissed the action, finding the defendant met the standard of care in his pre-operative advice and surgical technique, and that the bowel injury was a known complication likely caused by abnormal anatomy rather than negligence.

The applicant condominium corporation brought a motion for compliance and contempt against a unit occupant and his parents (the unit owners) for a persistent campaign of harassing, defamatory, and discriminatory communications directed at the board, property manager, and other residents.

The court found the occupant violated s. 117 of the Condominium Act and ordered him prohibited from the property and from communicating with the corporation's representatives.

The court also found the parents failed to take reasonable steps to prevent the misconduct under s. 119(2) and ordered them jointly and severally liable for damages and costs on a full indemnity basis, collectible as a common expense.

During a murder trial, the deceased's family brought an urn containing the deceased's ashes into the overflow courtroom.

The trial judge ruled that the urn must be removed from the courthouse.

The court found that leaving the urn overnight posed practical and security concerns, and carrying it in and out risked the jury seeing it, which could prejudice the accused's right to a fair trial.

The court also noted that the presence of the remains could adversely impact the appearance of neutrality.

The accused pleaded guilty to two counts of unlawful possession of a loaded, prohibited firearm and two counts of possession of a prohibited firearm without a licence.

Police found an AR-15 assault rifle and a sawed-off Cooey rifle in an unsecured backpack in the hallway of the accused's apartment, where he lived with his common-law spouse and three-year-old daughter.

The court considered the gravity of the offences, the presence of a child, and the defaced serial numbers as aggravating factors, while the guilty plea and the accused's rehabilitation prospects were mitigating.

The court determined a fit sentence was 4 years, reduced by 1 year for exceptionally harsh pre-sentence custody conditions due to lockdowns and COVID-19.

After applying Summers credit, the remaining 327 days were ordered to be served as a conditional sentence.

The plaintiff, a prominent lawyer and political activist, brought a defamation action against the defendant, an internet broadcaster, over videos alleging the plaintiff was a supporter of the Muslim Brotherhood and Islamic extremism.

The plaintiff moved for summary judgment.

The court found the case appropriate for summary judgment, holding that the defendant's statements were defamatory and that the defences of fair comment and responsible communication failed because the statements were presented as facts, lacked a factual foundation, and were made with malice and reckless disregard for the truth.

The court awarded the plaintiff $500,000 in general and aggravated damages and granted a permanent injunction requiring the removal of the videos and prohibiting the defendant from making further statements about the plaintiff.

The plaintiff commenced an action which was subsequently discontinued following an email exchange between counsel.

The defendant then brought a motion under Rule 23.05(1) for costs of the discontinued action, arguing the discontinuance was unilateral.

The court dismissed the motion, finding that the email correspondence constituted a binding settlement agreement that included the discontinuance of the action but did not include any term for the payment of costs.

The plaintiff was awarded partial indemnity costs for successfully opposing the motion.

The respondents sought to enforce a Utah default judgment against the appellant.

During discovery, the appellant refused to answer several questions, and an Associate Judge ordered him to answer them.

The appellant appealed the Associate Judge's decision, arguing the questions breached solicitor-client privilege or related to a coerced Stipulation of Fact.

The Superior Court allowed the appeal in part, striking one question that sought the content of legal advice, but upholding the orders to answer questions about the steps taken to secure legal advice, whether lawyers were paid, and which portions of the Stipulation of Fact were true, as the appellant had put these matters in issue in his pleadings.

Crown sentence appeal from the imposition of an eight-month conditional sentence for possession of child pornography.

The court held that the sentencing judge erred in treating the striking down of the mandatory minimum as lowering the sentencing floor and in misapplying prior authority on conditional sentences in child pornography cases.

Reaffirming that denunciation and general deterrence remain paramount for these offences, and that conditional sentences are rare and generally confined to truly exceptional circumstances, the court found the original sentence demonstrably unfit.

The appeal was allowed and the sentence was varied to twelve months' imprisonment, with credit for the portion of the conditional sentence already completed, leaving four months to serve.

The plaintiff employer brought a motion for an interlocutory injunction to shut down or restrict a competing deli opened by two former long-term employees.

The plaintiff argued the employees were fiduciaries.

The court found the employees were managers but not fiduciaries, as they lacked strategic authority and the employer was not peculiarly vulnerable to their departure.

The court also found the balance of convenience favoured the defendants and damages would be an adequate remedy.

The motion for an injunction was dismissed.

The moving party father brought a motion to strike a single sentence from the responding party mother's Reply, arguing it was inflammatory.

The sentence alleged that the father refused to provide funds for a taxi or ride-share for access exchanges during the COVID-19 pandemic.

The court reviewed the correspondence between counsel and found the sentence was accurate and relevant to the mother's claim for child and spousal support.

The motion to strike was dismissed, and costs of $6,500 were awarded to the mother.

In a criminal voir dire arising from sexual assault and sexual interference charges, the court considered whether oral and written statements made during a police interview were voluntary.

The accused argued that lack of sleep, emotional distress, and forceful police questioning rendered the statements involuntary.

Applying the confessions rule and the framework governing oppressive circumstances, the court found the interview was relatively brief, the accused remained lucid, had access to coffee, declined counsel, and his will was not overborne.

Both the verbal statements and the written apology were ruled voluntary and admissible at trial.

Following a successful trial where the plaintiff was awarded coverage under two creditor protection insurance policies, mental distress damages, and punitive damages, the court determined the costs of the action.

The court awarded the plaintiff costs on a partial indemnity basis up to the date the defendants' amended counterclaim was ordered to issue, and on a substantial indemnity basis thereafter due to the defendants' reprehensible litigation conduct, unproven allegations of fraud, and failure to accept a reasonable offer to settle.

The plaintiff was awarded $260,000 inclusive of fees, disbursements, and HST.

The appellant appealed his summary conviction for impaired driving, arguing the trial judge made a W.(D.) error in assessing credibility.

The trial judge had rejected the appellant's exculpatory evidence as 'not believable' and accepted the police officer's evidence where it conflicted with the appellant's.

The Superior Court of Justice found that the trial judge failed to apply the standard of proof beyond a reasonable doubt to the credibility contest, improperly treating it as an either/or choice between the two versions of events.

The appeal was allowed and a new trial was ordered.

The applicant sought judicial review of a housing cooperative's decision that she was no longer eligible for a Rent-Geared-to-Income subsidy after refusing an offer for a one-bedroom unit.

The applicant argued the cooperative lacked the delegated authority to make this determination.

The Divisional Court dismissed the application, finding that the service manager had expressly delegated the authority to determine eligibility and consider extenuating circumstances to the cooperative.

The court also found the cooperative's decision that the applicant failed to establish extenuating circumstances was reasonable.