Scott C. Hutchison

On an ex parte application arising from a police investigation, the court considered whether subscriber name and address information linked to cellular telephone numbers could be compelled through an assistance order issued with a transmission data recorder warrant.

The responding telecommunications company argued that such subscriber information required a general warrant, relying principally on privacy reasoning from Spencer.

The court held that subscriber information was not itself encompassed by the definition of transmission data, but that an assistance order under s. 487.02 could properly compel disclosure where reasonably required to give effect to a valid warrant.

The court further held that a general warrant under s. 487.01 is a remedy of last resort and was unavailable because another statutory route existed.

The appellant, Korea Data Systems (USA), Inc., was successful on a complex motion heard by the Court of Appeal for Ontario.

The court awarded the appellant costs fixed at $25,000, inclusive of disbursements and taxes, to be paid jointly by the Trustee and Christina Chiang.

The appellant, a long-time member of the Hells Angels, appealed a decision by the Licence Appeal Tribunal revoking his liquor licence.

The sole issue on appeal was whether the Tribunal erred in law by failing to articulate adequate reasons for rejecting an order imposing conditions as an alternative to revocation.

The Divisional Court determined the applicable standard of review was reasonableness and found that the Tribunal's reasons were sufficient, as the proposed conditions would not overcome the concerns regarding the licensee's membership in a criminal organization.

The appeal was dismissed.

The applicant brought a Charter application under s. 24(1) seeking to quash search warrants authorizing the search of computers and hard drives allegedly containing child pornography.

The issue was whether leave to cross‑examine the affiant or sub‑affiants on a Garofoli application could be granted based solely on counsel’s submissions or whether some evidentiary foundation was required.

The court held that statements of counsel alone are insufficient; an applicant must point to evidence in the record or other admissible material supporting the alleged factual basis for cross‑examination.

Because the applicant failed to identify such evidence, the court declined to grant leave to cross‑examine the affiant or sub‑affiants at this stage.

The plaintiff sought to appeal a costs order arising from a fraudulent conveyance action.

The motion judge had ordered the plaintiff to pay the defendant's costs and refused to allow a set-off for the amount the defendant owed the plaintiff.

The defendant argued leave to appeal was required under s. 133(b) of the Courts of Justice Act.

The Court of Appeal held that leave was not required because the refusal of a set-off had a substantive effect on the plaintiff's legal rights, extending beyond mere entitlement to and quantum of costs.

The court also declined to order security for costs and directed that the costs appeal be heard with the main appeal.

The parties consented to an order fixing the costs of the appeal.

The court ordered the appellants to pay $15,000 in costs to the respondent.

The applicant, a Justice of the Peace, sought judicial review of a decision by the Justices of the Peace Review Council regarding his inappropriate conduct.

The Divisional Court dismissed the application primarily due to an unexplained 18-month delay in bringing the proceeding.

The court also considered the merits, finding no procedural unfairness in the complaint or investigation process, and rejecting the applicant's claim of ineffective counsel, noting there is no right to effective counsel in civil proceedings.

The appellants appealed a decision of the Ontario Securities Commission finding they perpetrated a fraud relating to securities and breached their duties as investment fund managers.

The appellants argued the Commission lost jurisdiction when a single commissioner proceeded with the sanctions hearing after the other commissioner's appointment expired.

The Divisional Court dismissed the appeal, holding that the Statutory Powers Procedure Act permitted the Commission to override quorum requirements to proceed expeditiously.

The Court also upheld the Commission's findings of fraud, concluding that subjective awareness of the intended consequences could be inferred from the appellants' actions, and affirmed the sanctions imposed, including significant disgorgement orders.

The applicant sought relief under s. 24(1) of the Charter to quash search warrants executed against his computers and hard drives before any charges had been laid.

Because the applicant was a lawyer, the devices had been sealed pending a Lavallee procedure to protect solicitor‑client privilege, leaving the investigation at a pre‑charge stage.

The court considered whether the restrictive collateral‑attack framework from R. v. Wilson applied or whether the Garofoli regime governing Charter challenges to search warrants applied.

The court held that Charter‑based challenges to the legality of searches are governed by Garofoli rather than the stricter Wilson test, particularly where solicitor‑client privilege concerns justify hearing the challenge before any potential trial.

The applicant was entitled to disclosure of materials referenced in the Information to Obtain, and the issue of leave to cross‑examine would be determined after disclosure.

The appellant, Inco Limited, appealed a costs order awarding it $1,766,000 following its successful defence of a class action at the Court of Appeal.

Inco argued it was entitled to over $5.3 million and that the trial judge erred by reducing its legal fees and applying a 50 per cent discount under s. 31(1) of the Class Proceedings Act.

The Court of Appeal dismissed the appeal, finding no error in principle in the trial judge's determination that the environmental tort class action raised novel points of law and involved matters of public interest.

The court upheld the trial judge's methodical and reasonable costs analysis.

The defendants sought leave to appeal a motions judge's order certifying two class proceedings regarding the restitution of allegedly illegal lottery licensing fees.

The motions judge had certified all claims going back to 1990, including those that were prima facie time-barred.

The court granted leave to appeal under Rule 62.02(4)(b), finding good reason to doubt the correctness of the certification order, particularly regarding whether a class proceeding was the preferable procedure and whether a sub-class should have been created for the time-barred claims.

The court also found the issues to be of general importance to the development of class action law.

The defendants sought leave to appeal a motions judge's order certifying two class proceedings seeking restitution of lottery licensing fees, including claims that were prima facie time-barred.

The court granted leave to appeal under Rule 62.02(4)(b), finding good reason to doubt the correctness of the motions judge's analysis regarding whether a class proceeding was the preferable procedure and whether a sub-class should have been created for the time-barred claims.

The court also found the issues raised were of general importance to the development of class action law.

During pre-trial proceedings involving allegations of abuse of process related to police handling of solicitor-client privileged communications intercepted under Part VI wiretap authorizations, the court had ordered production of privileged materials for judicial review under the McClure framework.

The Crown sought a judicial stay rather than comply with the order, asserting that compliance would require disclosure of solicitor-client privileged communications between police and Crown counsel.

The defence agreed to the requested remedy.

Considering the public interest in preserving solicitor-client privilege and the lengthy procedural history of the case, the court exercised its discretion to terminate the prosecution by entering a judicial stay of proceedings.

The applicants brought a pre-trial motion seeking a stay of proceedings for abuse of process, alleging widespread police misconduct in the execution of wiretap authorizations, particularly regarding the interception of privileged solicitor-client communications.

During the motion, police witnesses testified about their handling of intercepted communications, prompting the applicants to seek disclosure of the legal advice the police received from Crown counsel.

The Crown asserted solicitor-client privilege over the advice.

The court held that while the individual officers did not waive privilege, the applicants met the threshold to pierce the privilege under the 'innocence at stake' exception as adapted for an abuse of process motion.

The court ordered a stage-two in-camera review of the privileged communications to determine if they should be disclosed to the defence.

The appellant pleaded guilty to conspiring to traffic cocaine and oxycodone, committing an indictable offence for the benefit of a criminal organization, and failing to comply with probation orders.

He was sentenced to a global term of seven years' imprisonment.

On appeal, he argued the sentencing judge failed to apply the principle of parity with a co-accused's sentence.

The Court of Appeal dismissed the appeal, finding no error in principle and that the sentence was fit given the appellant's lengthy criminal record and the differences in his offences compared to the co-accused.

The appellant appealed his convictions and sentence for uttering threats to cause bodily harm and to damage property.

The Court of Appeal dismissed the conviction appeal, finding the evidence was supported by testimony and extensive audio recordings.

The court also refused leave to appeal the sentence of one month imprisonment and three years' probation, finding it fit.

The appellants appealed their convictions for an armed robbery of a restaurant.

The Crown's case was entirely circumstantial, relying on the appellants' proximity to the getaway van shortly after the robbery.

The Court of Appeal found that while the trial judge could infer the appellants were in the van, concluding they were the robbers was not the only rational inference.

Evidence showed at least three people were in the van, and DNA from other individuals was found inside.

The trial judge erred by failing to consider other possible combinations of perpetrators.

The appeal was allowed and acquittals were entered.

The appellants successfully appealed a motion judge's decision limiting the scope of their class proceedings based on the Limitations Act.

The Divisional Court, however, refused to award the appellants their costs of the appeal, finding success was divided, and remitted the costs issue to the motion judge.

The Court of Appeal allowed the appeal on costs, holding that the Divisional Court erred in principle by mischaracterizing the appellants' success and by failing to apply the general rule that the costs of a successful appeal should be awarded to the appellant and not depend on the outcome of a rehearing.

The appellant telecommunications company challenged a general warrant and related assistance order requiring it to produce stored text messages of two subscribers on a prospective, daily basis over a two-week period.

The majority held the general warrant invalid, with two concurring opinions reaching that result by different routes.

One plurality held that the prospective daily production of future text messages constituted an interception of private communications requiring authorization under Part VI of the Criminal Code, making the general warrant unavailable under s. 487.01(1)(c).

The other concurring opinion held that even if not strictly an interception, the technique was substantively equivalent to one, precluding resort to the general warrant.

The dissent would have upheld the general warrant, finding the technique was disclosure of previously intercepted communications rather than an interception itself.

The Registrar of the Alcohol and Gaming Commission applied to revoke a liquor licence held by a full-patch member of the Hells Angels.

The board dismissed the application, and the Divisional Court affirmed.

On appeal, the Court of Appeal found that the board erred in law by applying a 'balance of probabilities' standard instead of the lower 'reasonable grounds for belief' standard required by s. 6(2)(d) of the Liquor Licence Act.

The board also misconstrued the test by improperly limiting its analysis of the licensee's past conduct to his operation of the business and requiring evidence of past criminal activity.

The appeal was allowed and the matter remitted to the board for reconsideration.