SCJ 2023

The applicant, Andrew Rocha, sought a stay of proceedings for charges of possession of cocaine for trafficking and possession of proceeds of crime, alleging police stole money and drugs during a search warrant execution, violating his s. 7 Charter rights.

The court found approximately $6000 of seized cash was missing and inferred it was taken by police officers involved in the investigation.

This misconduct was deemed an abuse of state power and a breach of s. 7 of the Canadian Charter of Rights and Freedoms.

Given the egregious nature of the police misconduct and the lack of an adequate alternative remedy, the court granted a stay of proceedings to dissociate the justice system from the impugned conduct, despite the strong societal interest in a trial on the merits.

The applicant father brought a motion for an order compelling family therapy for his 16-year-old daughter, D, to support their relationship, which had deteriorated significantly.

The respondent mother and the Office of the Children's Lawyer, representing the child, opposed the motion.

The court dismissed the father's motion, giving considerable weight to the mature minor's strong and consistent opposition to forced therapy.

The court found that while it had jurisdiction to order therapy, the potential benefits did not outweigh the risks of exacerbating the child's physical and mental health issues, and that such an order would be practically unenforceable given the child's age and maturity.

The plaintiff bank moved for default judgment against the defendants for civil fraud in obtaining small business loans.

The individual defendant submitted a fictitious invoice for equipment that was never purchased and transferred the loan proceeds to various numbered companies.

Shortly after the bank began investigating, the defendant transferred his interest in his home to his spouse for no consideration.

The court found the defendant liable for fraudulent misrepresentation, awarded the outstanding loan amount plus $150,000 in punitive damages, and voided the property transfer as a fraudulent conveyance.

Timothy Clarke Anthony applied for bail review and detention review after being denied bail by a Justice of the Peace.

He faced multiple charges, including criminal negligence causing death and numerous counts of driving while disqualified, with a significant criminal record involving breaches of court orders.

The application argued errors in law by the Justice of the Peace, a material change in circumstances with a new release plan and sureties, and unreasonable delay.

The court found no errors in the original decision, determined the new release plan did not constitute a material change sufficient to mitigate the high risk of re-offending, and concluded that the delay was not unreasonable under the Jordan framework.

The application was dismissed, and detention was warranted due to the compelling risk of re-offending.

The appellant, convicted of sexual assault and sexual exploitation, appealed his conviction.

The appeal focused on the trial judge's assessment of credibility, particularly regarding the absence of motive to fabricate.

The court found that the trial judge erred by treating the absence of evidence of motive to fabricate as a proven lack of motive, which improperly enhanced the complainants' credibility, especially since the defence did not raise the issue.

This was deemed a significant and fatal error, leading to the quashing of convictions and ordering a new trial.

The accused, Damodar Arapakota, was charged under s. 3(1)(a) of the Corruption of Foreign Public Officials Act (CFPOA) for allegedly providing a material benefit (a US trip valued at approximately $20,000) to a Botswanan public official, Dr. Omponye Coach Kereteletswe, as consideration for official acts to obtain a business advantage for his company, Imex Systems Inc. The Crown argued the trip was consideration for letters confirming a contract and its value.

The defence contended the trip was for convenience and partially reimbursed, and the letters did not provide a material business advantage.

The court found that while a material benefit was conferred, the Crown failed to prove beyond a reasonable doubt that the benefit was "as consideration for" the letters (lacking a quid pro quo) or that the letters provided a material "advantage in business" as required by the CFPOA.

The accused was found not guilty.

This costs endorsement addresses the failure of the Respondent, Stewart Wilson, to pay outstanding costs awards to the Applicant, Sara Fatahi-Ghandehari.

The court clarified the specific amounts owing from previous orders, including interest, and directed Mr. Wilson to pay a total of $80,377.22.

The court also ruled that payments should be made to the Applicant's counsel in trust, rather than directly to the Applicant, due to the contentious nature of the case.

The court declined to enforce costs awards from the Court of Appeal, stating it lacked jurisdiction to do so.

No costs were awarded for the submissions themselves due to both parties' non-compliance with court directions.

The accused was charged with criminal harassment and child luring after allegedly approaching young girls in a park.

Police placed him under investigative detention, searched him, and later arrested him, conducting a strip search and a search of his vehicle incident to arrest.

The accused brought a Charter motion arguing breaches of his s. 8 and s. 10(b) rights.

The court found no s. 8 breaches, concluding the searches were lawful and justified by safety concerns.

While the court found a s. 10(b) breach due to a delay in fully advising the accused of his right to counsel, it declined to exclude the evidence under s. 24(2), emphasizing society's interest in adjudicating serious offences involving children on their merits.

The defendants moved for summary judgment against the plaintiff, seeking the return of a service dog, Briggs, arguing there was no genuine issue for trial as the plaintiff was not the dog's owner.

The plaintiff opposed, citing incomplete discovery and insufficient evidence.

The court dismissed the motion, finding that a fair and just adjudication required a trial due to credibility issues and a deficient record, especially given the constraints of simplified procedure rules which limit pre-trial proceedings like cross-examinations.

The plaintiff, Ben-Air Systems Inc., brought an action for a construction lien and damages for breach of contract against Castlemore Plumbing Limited and 2664835 Ontario Inc. The claim against 2664835 Ontario Inc. was discontinued.

Ben-Air alleged wrongful repudiation of the subcontract by Castlemore and sought payment for extras and delay costs.

Castlemore counterclaimed for damages to complete the work.

The court found that Castlemore wrongfully repudiated the subcontract, denying its claim for completion costs.

The court denied Ben-Air's claims for specific extras and delay costs due to lack of proof and credibility issues.

The court ultimately determined Ben-Air's lien and damages based on the original contract, undisputed extras, and a judicially determined credit for uncompleted work, dismissing Castlemore's counterclaim.

The defendant successfully dismissed the plaintiff's $15 million action after a three-day trial.

The plaintiff's claim stemmed from a mistaken vehicle permit transfer, but the court found her losses were due to her refusal to pay parking tickets.

The defendant sought substantial indemnity costs, citing a reasonable offer to settle that the self-represented plaintiff rejected.

The court awarded the defendant $100,000 in costs, finding the plaintiff's arguments obstructive and her decision to proceed to trial futile despite her experience as a litigant.

This case involved a Binding Judicial Dispute Resolution (BJDR) to resolve long-standing family law issues concerning parenting decision-making, parenting time, and child support.

The court denied the respondent father's request for an adjournment, finding he had ample time to prepare.

The final orders granted the applicant mother sole decision-making authority for the child, established a detailed parenting schedule for regular, holiday, and summer periods, and permitted the mother to authorize international travel without the father's consent.

The respondent father was ordered to pay increased table child support retroactively from 2019 based on his increased income and to contribute to Section 7 expenses, including arrears, emphasizing the child's best interests and the need for certainty in co-parenting.

The defendants brought a motion seeking an interim or final order to authorize the transfer of shares held by the Jack Witiluk Family Trust in Phase 2 Ventures Inc. to Jeffrey Witiluk and Ryan Witiluk.

The plaintiffs opposed, citing prejudice, oppression, and technical issues related to board approval and director appointment.

The court found the plaintiffs' opposition lacked merit, emphasizing the long-standing nature of the litigation and the pragmatic business sense of the proposed transfer.

Exercising its discretion under the Ontario Business Corporations Act, the court authorized the share transfer, dismissing the plaintiffs' technical objections.

Costs were awarded against the plaintiff, Gerald Witiluk, personally.

This decision addresses a motion brought by the wife (S.R.) to enforce a consent order regarding the release of $77,000 from the sale proceeds of the matrimonial home, representing retroactive child support, and past and future spousal support.

The husband (S.C.H.) argued that the funds should be held in trust until the final resolution of all issues, including costs, based on the interpretation of the consent order's holdback provisions.

The court applied principles of contractual interpretation, reading the order as a whole and considering surrounding circumstances, and found that the holdback language in paragraph 2 applied to all financial allocations, not just the property equalization payment.

The wife's motion was dismissed, and the funds are to remain in trust pending further order or agreement.

The defendants brought a motion to discharge Certificates of Pending Litigation (CPLs), alleging the plaintiff fraudulently obtained them by withholding a financial statement from a prior matrimonial file.

The plaintiff brought a cross-motion seeking to dismiss the defendants' motion as an abuse of process.

The court found that the defendants had prior knowledge of the "material and crucial" evidence but consciously chose not to present it at the original CPL motion.

Consequently, the court granted the plaintiff's motion, dismissing the defendants' motion to discharge the CPLs on the basis of abuse of process.

The court also criticized the defendants' litigation strategy and ordered that no further motions could be brought without leave of the Commercial List Team Lead.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff against the Estate of Paramjit Sahanan.

The court applied the factors from *Mountain View Farms Ltd. v. McQueen*, finding that while the defendants' excuse for default was not plausible, they acted promptly upon learning of the judgment and presented an arguable defence on the merits, particularly regarding the limitation period and the nature of the alleged debt.

The court also noted the plaintiff's long period of inaction.

The motion to set aside the default judgment was granted.

The accused, Abu Mandal, was charged under s. 7.1(1) of the Controlled Drugs and Substances Act for selling items intending they be used in the unlawful production of a Schedule I substance (methamphetamine).

The Crown presented circumstantial evidence that Mandal sold chemicals and equipment to an individual operating a clandestine methamphetamine lab.

The central issue was whether Mandal possessed the requisite intent.

The court found that Mandal had knowledge of the unlawful end-use of the chemicals, which was sufficient to establish intent, rejecting the defence's argument that a desire for the outcome was required.

The court relied on principles from aiding and abetting cases under the Criminal Code.

Mandal was found guilty.

The self-represented plaintiff, Tanya Rebello, brought a motion seeking the recusal of Justice Robert Centa from hearing a summary judgment motion and her cross-motion, alleging a reasonable apprehension of bias.

The court dismissed the recusal motion, finding that the plaintiff failed to demonstrate a reasonable apprehension of bias, emphasizing the high threshold required to establish judicial impartiality, especially in the context of case management functions.

The judge addressed and rejected several grounds for recusal, including a prior decision involving the same Crown counsel, a complaint filed with the Canadian Judicial Council, procedural directions regarding reply factums and case conference scheduling, and issues concerning redacted police notes.

This ruling addresses a Corbett application in a first-degree murder trial.

The accused sought to limit the admissibility of his criminal record for cross-examination on credibility.

The Crown argued for the full record, contending the defence would attack the deceased's character.

The court balanced the probative value of the convictions against the prejudicial effect of propensity reasoning, particularly for violent and similar offences.

The judge ruled that only convictions for obstruction of a Peace Officer and theft (read down from robbery) would be admissible, finding that the defence's argument regarding the deceased's possession of a firearm was a direct response to the indictment, not an attack on character, thus not creating an imbalance requiring the full record.

The Respondent father brought a motion to change a previous order, seeking joint decision-making with final say on health matters and equal parenting time for the parties' child.

The Applicant mother sought to maintain primary residence and final decision-making power.

The court found a material change in circumstances and, after considering the child's best interests, ordered equal parenting time on a 2-2-3 schedule.

Decision-making authority was split, with the father having final say on health matters and the mother on education matters, in recognition of their communication issues and respective capabilities.

The court also mandated the use of a communication app and ordered compliance with previous orders regarding documentation.