Superior Court of Justice

This decision addresses several motions between the parties, including undertakings and refusals arising from cross-examinations, a request for Employment and Social Development Canada (ESDC) to produce certain files and employees as witnesses, and whether the plaintiffs should be granted leave to file a supplementary affidavit in the context of a summary judgment motion.

The court discusses the privacy and production issues related to ESDC records, the discretion of the Minister under the Department of Employment and Social Development Act, and the test for granting leave to file supplementary affidavit material.

The court also rules on costs and sets out principles for undertakings and refusals.

The Applicant sought an order barring the Crown from prosecuting him for an allegation of choking, arguing that the charge formed part of a prior resolution and that prosecution would amount to double jeopardy under sections 725(1) and 725(2) of the Criminal Code.

The Crown argued that the choking allegation was not part of the previous proceedings and could be prosecuted.

The court found that the choking allegation was not previously adjudicated or considered, and therefore, the Crown was not barred from proceeding.

The application was dismissed.

Following a failed residential real estate transaction in which the purchasers did not pay the required deposit, the defendants pursued a third party claim against their real estate agent and brokerage for indemnity.

The central allegation was that the agent had advised the purchasers that the agreement was effectively conditional on delivery of the deposit and that non-payment would permit them to walk away without liability.

The court rejected that factual theory, finding the signed agreement and surrounding communications supported the conclusion that the purchasers had been committing to a firm deal and were later attempting to avoid completion after family advice.

The court accepted the general statement of the real estate agent’s duty of care but held no breach was established on the evidence.

The third party claim was dismissed.

The court dismissed Smitten Baby Products Inc.'s action against FirstOnSite Restoration Limited (FOS), holding that FOS, as an insurance investigator retained by the insurer, did not owe a duty of care to the insured, Smitten Baby.

The decision reviews the requirements for establishing a duty of care in cases of pure economic loss, finding that Smitten Baby failed to plead facts establishing a proximate relationship or reasonable reliance.

The court also found that the statement of claim did not adequately plead causation.

Even if a prima facie duty of care could be established, policy considerations would negate it.

The motion for partial summary judgment was dismissed as moot.

This decision addresses whether solicitor-client privilege was waived by implication in a real estate dispute involving overlapping claims against a realtor and a lawyer.

The court found that, due to the plaintiff’s virtually identical allegations in two related actions, fairness and consistency required a finding of implied waiver of privilege.

The motion to compel disclosure of the lawyer’s advice and file was granted.

Michael Miller was charged with operating a conveyance while impaired and possession of fentanyl for the purpose of trafficking.

He pleaded guilty to impaired operation and admitted possession of fentanyl, but denied possession for the purpose of trafficking.

The trial focused on whether the Crown could prove the trafficking purpose beyond a reasonable doubt.

The court found reasonable doubt as to the purpose of trafficking and convicted Miller of the lesser included offence of possession of fentanyl.

This decision addresses the division of property, equalization, and post-separation adjustments following the breakdown of marriage between Oludayo Olowookere and Arthur Temitope Olowookere.

The court determined the date of separation, assessed the credibility and sufficiency of evidence regarding alleged family loans, and calculated equalization and post-separation adjustments.

The court found insufficient evidence to support the existence of the claimed loans and provided detailed reasons for the equalization and adjustment calculations, ultimately ordering specific payments and dismissing the occupation rent claim.

This decision concerns the continuation of refusals motions in complex insurance litigation involving environmental claims at 26 mining sites operated by Vale Canada Limited.

The court addresses the proportionality and sufficiency of discovery efforts, the organization and resolution of thousands of discovery refusals, and sets out directions for further production and inquiry.

The ruling emphasizes the need for balance and proportionality in discovery, especially in large-scale litigation, and provides a framework for resolving outstanding discovery disputes ahead of trial.

The appellant, Laurel Paige, appealed convictions for sexual interference, sexual assault, and committing an indecent act, arguing that the trial judge erred in assessing the credibility of the complainant, a child witness.

The Ontario Superior Court of Justice reviewed the trial judge’s reasons, finding that while there was a palpable error in treating the complainant’s admission of prior false allegations as bolstering her credibility, the error was not overriding and did not affect the outcome.

The appeal was dismissed, with the court emphasizing the deference owed to trial judges on credibility findings and clarifying the proper approach to issues of corroboration, inconsistencies, and motive to fabricate.

The appellant, Jack Stelwagen, appealed his conviction for sexual assault, arguing that comments made by the trial judge during scheduling proceedings about his ability to hear a section 11(b) Charter application gave rise to a reasonable apprehension of bias and that a mistrial should have been declared.

The Superior Court of Justice reviewed the history of the case, including prior applications and appeals, and concluded that the trial judge’s comments did not demonstrate bias or a closed mind.

The appeal was dismissed.

The court sentenced Emmanuel Kitenge, who pled guilty to manslaughter and failing to stop for police, for his role as a getaway driver in a fatal shooting.

The decision reviews the circumstances of the offence, the impact on the victim’s family, the offender’s background, and the applicable sentencing principles.

After considering aggravating and mitigating factors, including Kitenge’s youth, lack of criminal record, difficult upbringing, and significant rehabilitative efforts, the court imposed a sentence of 6.5 years less one day for manslaughter (with credit for pre-sentence custody), a concurrent nine-month sentence for failing to stop for police, probation, and ancillary orders.

This decision addresses the issue of costs following a trial on parenting issues between Maryana Chyher and Amar Al Jaboury.

The court reviews the parties’ submissions, the relevant Family Law Rules, and the conduct of the parties throughout the litigation.

The court finds that the respondent, Mr. Al Jaboury, acted unreasonably and awards the applicant, Ms. Chyher, $60,000 in costs for the trial, inclusive of HST and disbursements.

The court fixes costs in a dispute over the administration and interpretation of the John Szewczyk Testamentary Trust, specifically regarding the calculation of indexed payments to a beneficiary.

The court reviews the parties' positions, the applicable legal principles for costs in estate litigation, and the proportionality of the legal fees claimed.

Ultimately, the court orders that all parties' reasonable costs be paid from the trust, but reduces the amounts claimed by the applicant and one respondent due to concerns about excessiveness and proportionality.

The court sentenced the offender after convictions for multiple sexual offences against two children and child pornography offences involving both known and unknown children.

The judge found the offending extremely serious because it involved grooming, repeated abuse, abuse of trust, severe harm to the children and families, and a large volume of child pornography.

The court stayed the accessing-child-pornography count under the Kienapple principle, granted pre-sentence credit including a limited Duncan credit for triple bunking, and imposed a global sentence of 16 years’ imprisonment less credit for time served.

The court also made ancillary orders including DNA, lifetime sex offender registration, weapons prohibition, no-contact, and lifetime child-contact restrictions.

This decision resolves the financial issues arising from the separation of Jamilla Jaha and Mabruck Mengele, including the imputation of income, calculation of child and spousal support, and equalization of property.

The court found that the applicant, Ms. Jaha, was intentionally underemployed and imputed income to her accordingly.

The court dismissed her motion for exclusive possession of the matrimonial home and declined to revisit settled parenting and equalization issues.

The court also set out detailed calculations for support arrears and provided for a review of spousal support in three years, in anticipation of the respondent’s retirement.

The court considered written submissions on costs following the granting of summary judgment in favour of the defendant, The Corporation of the City of Timmins.

The defendant sought substantial indemnity costs, while the self-represented plaintiff argued for no costs or, alternatively, costs in his favour for a disclosure motion.

The court reviewed the relevant legal framework, including the Courts of Justice Act and Rules of Civil Procedure, and found that the defendant was entitled to substantial indemnity costs throughout, given the plaintiff’s prior similar litigation and the defendant’s early offer to settle.

The court adjusted the quantum of costs to reflect partial success on a disclosure motion and awarded a total of $80,631.57 to the defendant.

The appellant appealed convictions for mischief and obstructing police arising from his presence in a restricted area on Wellington Street during the Freedom Convoy occupation of Ottawa on February 19, 2022.

He argued the trial judge erred in finding police had common law authority to secure the area, that his arrest violated s. 9 of the Charter, that the search incident to arrest breached s. 8 of the Charter, and that the evidence should have been excluded.

The appeal court found the trial judge correctly applied the ancillary powers doctrine and properly assessed the officer's reasonable grounds for arrest.

The appeal was dismissed on all grounds.

The court addresses the issue of "costs thrown away" following the plaintiff's successful motion to amend his Statement of Claim to add Human Rights Code claims.

The court reviews the appropriate scale for such costs, the timing of the assessment, and the quantum to be awarded.

Ultimately, the court fixes the amount of costs thrown away at $52,549, payable by the plaintiff to the defendants, and provides detailed reasons for the calculation and allocation of these costs.

The decision addresses a motion to amend the Statement of Claim in a civil action brought by Gurupdesh Pandher against the University of Windsor and several individuals.

The court considers whether the plaintiff may add Human Rights Code claims from prior HRTO applications, the addition of new defendants, the sufficiency of defamation pleadings, the scope of misfeasance in public office, the introduction of new human rights grounds, the effect of the collective agreement and labour arbitration, the use of documents subject to the deemed or implied undertaking rule, and the pleading of matters subject to settlement privilege.

The court grants some amendments, strikes others, and provides detailed directions for further pleadings.

The applicant, Boysie Alexander Murray, brought a Charter application seeking to exclude evidence of a loaded firearm and cocaine seized during a police investigation.

He argued that the police arbitrarily detained him, used excessive force, and failed to provide his rights to counsel, all influenced by racial profiling.

The court found multiple serious Charter breaches, including shocking physical violence involving repeated taser use to the applicant's genital region.

Consequently, the court granted the Charter motion and excluded all seized evidence under section 24(2).