Sean F. Dunphy

The plaintiff previously obtained a judgment requiring the defendant to provide an accounting of funds.

The defendant was found in contempt twice for failing to comply with the accounting orders.

The court heard the sentencing for the second contempt finding and the defendant's motion to vary or discharge the first contempt sentence.

The court found that the defendant had not purged his contempt, noting his lack of diligence and failure to disclose accounts.

The motion to vary the first sentence was dismissed, and the defendant was ordered to serve the remaining 20 days of his first sentence.

For the second contempt, the court sentenced the defendant to an additional 21 days in custody, to be served consecutively, and ordered financial institutions to produce the required records directly to the plaintiff.

The defendant, Vladimir Hussain-Marca, was found guilty of break and enter and robbery following a home invasion.

The court adopted a joint sentencing submission from the Crown and Defence, imposing a three-year custodial term (less pre-sentence credit), 18 months probation, a 20-year weapons prohibition, and a DNA order.

The court considered aggravating factors such as planning, violence, and dwelling house violation, alongside mitigating factors including the defendant's youth, first-time offender status, remorse, and strong rehabilitation prospects.

The court also commented on the harsh conditions at Toronto South Detention Centre, which were implicitly accounted for in the joint submission.

The Crown applied for a voir dire to determine the admissibility of a 911 call made by the complainant and a statement given by the accused to police.

The court found the 911 call admissible under the res gestae and principled exceptions to the hearsay rule, noting its necessity due to challenges in domestic violence cases and high reliability.

The accused's statement was found voluntary and admissible, as the accused possessed an operating mind despite mistaken beliefs about the law, and there was no evidence of threats, inducements, oppression, or police trickery.

Both Crown applications were allowed.

The defendant Western Assurance Company brought a motion to amend a previously issued consent judgment that approved an infant settlement and dismissed the action against another defendant.

Western Assurance sought to amend the judgment to dismiss the entire action without costs, relying on a prior unapproved release.

The court dismissed the motion, finding that the prior judgment was fully executed and could not be amended to include a non-party to that settlement.

The court directed that a separate motion under Rule 7.08 is required to approve the settlement and dismiss the action against Western Assurance.

The plaintiff, Larry Patterson, was successful in his motion for summary judgment for wrongful dismissal against IBM Canada Limited.

This endorsement addresses the issue of costs.

The plaintiff sought partial indemnity costs.

The defendant had made an offer to settle which the plaintiff failed to beat, but the offer was made only four days before the hearing, falling short of the seven-day requirement under Rule 49.10.

The court exercised its discretion under Rule 49.13, acknowledging the defendant's offer despite its late delivery and the minimal difference from the judgment amount.

The court awarded the plaintiff partial indemnity costs of $16,209.16, less a $2,500 credit to the defendant (comprising a $1,500 credit for the offer to settle and $1,000 for the plaintiff's hearing costs), plus $500 for assessing costs, for a total of $14,209.16.

The damages award was also revised by agreement to $57,427.46 due to a calculation error.

Earl Hourihan was convicted of driving over 80 causing bodily harm, arising from a single motor vehicle accident where he struck a pedestrian on a push scooter.

The Crown sought a custodial sentence of 9 to 15 months, while the defence proposed a 90-day intermittent sentence with probation.

The court considered aggravating factors, including a prior impaired driving conviction and the severity of the victim's injuries, and mitigating factors such as the offender's remorse, efforts to address alcohol problems, and community standing.

The court emphasized denunciation and deterrence as predominant sentencing objectives for alcohol-related driving offences, particularly where bodily harm is involved.

A sentence of nine months imprisonment and a two-year driving prohibition was imposed, balancing rehabilitation with the need for strong public policy messaging.

The accused, Anthony Magiri, brought an application seeking a declaration that section 273.1(2)(b) of the Criminal Code, which states "no consent is obtained...where...the complainant is incapable of consenting to the activity" is void for vagueness and violates sections 7 and 12 of the Canadian Charter of Rights and Freedoms.

The court dismissed the application, finding that the term "incapable" in relation to consent is not vague and has been consistently interpreted in jurisprudence.

The court emphasized that capacity is implicit in the concept of voluntary agreement for sexual activity and that the jurisprudence does not show fundamental conflict regarding the concept of capacity, even in cases involving intoxication.

The applicant sought judicial review of a decision by the Human Rights Tribunal of Ontario, which summarily dismissed his discrimination complaint against the respondent housing corporation regarding his eviction for rent arrears.

The Divisional Court dismissed the application, finding it to be an abuse of process as the applicant sought to relitigate his employment termination and eviction, which had already been settled or decided.

The court held that the Tribunal's decision was reasonable, procedurally fair, and entitled to deference.

The applicant was ordered to pay costs of $2,644.55 and barred from bringing further applications without paying outstanding costs and obtaining leave.

The accused was charged with two counts of sexual assault, one count of choking, one count of assault, and one count of criminal harassment.

The trial judge found the accused's evidence fundamentally unreliable and tainted by fantasy or insincerity, while the complainant's and her mother's evidence was found honest and sincere.

The accused was found guilty of sexual assault (two counts), assault, and criminal harassment, but not guilty of choking.

The court rejected the defence of honest but mistaken belief in consent for sexual assault, finding the accused took no reasonable steps to ascertain consent.

This is a costs endorsement following several motions in complex insurance litigation between TD Bank and its fidelity insurers, primarily concerning a successful partial summary judgment motion by TD Bank.

The court addressed the administrative issue of simplifying the style of cause and then considered the principles for awarding costs, emphasizing the "culture shift" towards efficient litigation.

The court confirmed costs in the cause for an earlier production motion and awarded TD Bank $330,000 in all-inclusive costs for the motion for directions and the partial summary judgment motion, to be paid jointly and severally by the defendant insurers, allocated pro rata to their policy exposure.

The defendant, Steven Venditello, brought an application under Section 11(b) of the Canadian Charter of Rights and Freedoms to stay fraud charges due to unreasonable delay.

The court found that the extensive delay of over seven years was primarily attributable to the defendant's deliberate and manipulative actions regarding legal representation and scheduling.

Applying the framework from R. v. Jordan and R. v. Coulter, the court calculated the net delay, after subtracting defence-attributable delay and an extraordinary circumstance, to be well below the 30-month threshold.

The application was dismissed, as the defendant failed to demonstrate that the remaining delay was unreasonable.

The accused, Raffaello Fattore, pleaded guilty to extortion under s. 346(1.1)(b) of the Criminal Code.

The Crown sought a custodial sentence of at least 120 days, emphasizing general deterrence and denunciation.

The Defence requested a suspended sentence with probation, citing the accused's youth, lack of prior record, and the severe impact on his legal career aspirations.

The court, considering sentencing principles, found the offence to be at the low end of the extortion spectrum, without violence or weapons.

It determined that specific deterrence did not require custody and that the accused had high rehabilitation potential.

The court imposed a suspended sentence with 18 months probation, including conditions such as 100 hours of community service, and a DNA order, but declined a firearms prohibition order.

This endorsement clarifies that the presiding judge is not seized of the plaintiff's intended motion to pursue personal causes of action, following a successful partial summary judgment motion and subsequent appeal.

The judge explains that his previous decision was final and that he has since been assigned to the Criminal division.

The parties are advised to obtain a new hearing date for the motion from the Civil Practice Court (CPC) or pursue the Fraudulent Conveyances Act claim through the bankruptcy court.

The plaintiff's statement of claim was reviewed by the court under Rule 2.1 of the Rules of Civil Procedure for being frivolous and vexatious.

Despite the plaintiff's submissions, the court found the claim incomprehensible, failing to comply with Rule 25.06 by not concisely stating material facts or the basis for relief.

Consequently, the claim was dismissed, with no order as to costs.

The applicant, an unsuccessful candidate in a 2014 municipal election, failed to file an audited financial statement by the statutory deadline, resulting in her ineligibility to run in the next municipal election.

Almost two years later, she sought relief from forfeiture under s. 98 of the Courts of Justice Act to permit late filing and removal from the "Candidates in Default" list, primarily to secure a provincial party nomination.

The court dismissed the application, finding that the applicant failed to demonstrate that her non-compliance was inadvertent or that she had been sufficiently diligent in attempting to remedy the breach.

The court emphasized the importance of timely financial disclosure for public policy and declined to exercise its equitable discretion.

Following earlier rulings where the plaintiff was substantially successful on a motion, the court determined the quantum of costs.

The plaintiff sought partial indemnity costs of $7,134.94, while the defendant argued each party should bear their own costs or that the hours claimed were excessive due to overlap with a co-defendant.

The court found the plaintiff's claimed hourly rate and time spent to be reasonable, noting the aggressive approach taken by the defendant.

The court awarded the plaintiff $7,134.94 in costs, to be set off against amounts owed under the mortgage.

In a wrongful dismissal summary judgment motion, the court determined the reasonable notice period and assessed damages.

The plaintiff, a 67-year-old IT Specialist with 22 years of service, was terminated without cause.

The court fixed reasonable notice at 18 months, including a contingency discount for future earnings.

The plaintiff was awarded employer contributions to his defined contribution pension plan but denied claims for an incentive bonus and supplementary health benefits due to lack of evidence and program subjectivity.

The court also discussed the preferred 'discounted approach' over 'trust and accounting' for future mitigation.

The plaintiff brought a second motion for default judgment seeking damages, an injunction, and recovery of decontamination equipment from a former licensee.

The court found that the plaintiff failed to exercise its contractual option to repurchase the equipment, meaning the defendant lawfully owned it.

The court also rejected the plaintiff's attempt to restrict the defendant's use of the equipment based on vague intellectual property claims over 'know-how'.

As the plaintiff's claims for conversion, passing off, and unjust enrichment were premised on the erroneous assumption that the defendant could not use the equipment, and no concrete evidence of actual damages was provided, the balance of the action was dismissed.

The accused struck a person riding a push scooter with his motor vehicle, causing bodily harm.

He was charged with impaired driving causing bodily harm and driving 'over 80' causing bodily harm.

The accused brought Charter applications alleging breaches of his rights under ss. 8, 10(a), and 10(b) due to alleged delays in taking breath samples and a failure to advise him of the potential for more serious charges.

The court dismissed the Charter applications, finding no breaches and concluding that the evidence would not be excluded under s. 24(2) regardless.

The court found the accused guilty on both counts, as the Crown proved impairment, blood alcohol concentration over 80, and causation beyond a reasonable doubt.

The defendants successfully brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action.

In this costs endorsement, the court considered whether to depart from the presumption of full indemnity costs under s. 137.1(7).

The court denied the plaintiff's request to file a further affidavit and found no reason to depart from the statutory presumption.

The court awarded full indemnity costs of $282,943.42 to the defendant Bent and partial indemnity costs of $30,000 to the defendant Lerners LLP.