Spencer Nicholson

The court sentenced Michael Allan McIndoo for multiple offences including child luring, making and possessing child pornography, extortion, and breaches of a prohibition order.

The decision reviews the facts, aggravating and mitigating factors, the applicable legal principles, and comparable case law.

The court imposed a global sentence of 9.25 years, emphasizing denunciation, deterrence, and child protection, and made several ancillary orders including SOIRA, DNA, forfeiture, and non-communication orders.

The applicant, Matthew John Blumenstock, sought to exclude evidence seized from his residence under section 8 of the Charter, arguing that the search warrant was issued without sufficient grounds linking him or the property to drug offences.

The court reviewed the investigative background, the Information to Obtain (ITO), and the legal standards for issuing a search warrant.

Justice Spencer Nicholson found that, considering the totality of the evidence—including surveillance, phone records, and the presence of suspicious cardboard boxes—there were reasonable grounds to believe that illicit cannabis would be found at the property.

The application was dismissed.

This mid-trial ruling addresses two issues in a medical negligence jury trial: (1) the proper form of the jury questions on causation, and (2) whether the jury should be required to provide reasons or particulars for their verdict on causation.

The court reviews the relevant case law and determines that the "but for" test should be used in the jury questions on causation, rather than the "caused or contributed to" language, given the facts of the case.

The court also declines to require the jury to provide reasons or particulars for their finding on causation, citing the risk of confusion and the lack of necessity in the circumstances.

The appellant appealed summary conviction findings of guilt on two sexual assault counts arising from allegations that, during otherwise consensual sexual activity, he struck the complainant without consent.

He argued that the trial judge impermissibly bolstered credibility by referring to the absence of embellishment, misstated and misapplied the W.(D.) framework, and admitted prior-incident evidence amounting to presumptively inadmissible bad character evidence.

The appeal court held that, although parts of the reasons were imperfect and included troublesome language, the reasons read as a whole showed the trial judge understood and applied the proper burden of proof, made credibility findings open on the record, and did not engage in propensity reasoning.

The appeal was dismissed.

This decision addresses whether software developed by an employee (Vladimir Krougly) while employed at Nexus Solutions Inc. was created in the course of employment, such that Nexus would own the copyright in the software (Limedas) later commercialized by Limesoft Inc. The court finds that although Krougly was the author of the software, it was not created in the course of his employment with Nexus, and thus Nexus is not entitled to a proprietary remedy under copyright law.

The court reviews the factual background, credibility of witnesses, expert evidence, and the legal framework for copyright ownership in the employment context.

The court considered whether the applicant, Vatcho Kelian, had an easement over the respondent Paul Eldred Trafford’s property for the purpose of maintaining a septic system.

The court reviewed the history of the properties, prior agreements, and the requirements for the creation and continuation of an easement, including by express grant and by prescription.

The court found that no easement was created or registered, and that any rights conferred by prior settlement had terminated.

The application for an easement was dismissed.

This decision addresses Charter applications by Jonathan Cumming and Lenore Westendorp to exclude evidence obtained during a traffic stop and subsequent search.

The court found that Ms. Westendorp’s section 8 Charter rights were breached by an unreasonable search of her vehicle, as her consent was not fully informed or voluntary.

The evidence was excluded as against her.

Mr. Cumming, as a suspended driver, was found to have no reasonable expectation of privacy in the vehicle and thus lacked standing to challenge the search under section 8.

The court clarified that exclusion of evidence can apply to one accused but not another, depending on whose Charter rights were violated.

The Superior Court of Justice sentenced two offenders, Ryan Daigneault and Daniel Bell, who pleaded guilty to transferring a handgun and two counts of cocaine trafficking.

Daigneault, identified as the president of the London chapter of the Outlaws motorcycle club, played a primary role in negotiations, while Bell acted as a courier.

The court emphasized denunciation and deterrence as primary sentencing principles for drug and firearm offenses, particularly given the involvement of a criminal organization.

Daigneault received a total sentence of nine years, reflecting his leadership role, extensive criminal record, and the significant quantities of drugs and firearms involved, with credits applied for pre-trial detention and strict bail conditions.

Bell, a first-time offender with a secondary role, received a five-year sentence in accordance with a joint submission from the Crown and defence, with the court applying principles of restraint and totality.

Both offenders were subject to secondary DNA orders and 10-year weapons prohibitions.

At a case conference and pre-trial for a motor vehicle accident personal injury claim proceeding under the Simplified Rules, the court addressed whether the trial could be completed within the allotted five days.

The plaintiff had initially proposed a witness list that exceeded the time limit.

After the plaintiff reduced her witness list, the court imposed a strict trial timetable to ensure the matter could be heard within five days, noting that the plaintiff chose the Simplified Rules and must bear the burden of fitting her case within its constraints.

Idrisso Palmer was found guilty of possession of an unauthorized firearm and a loaded firearm.

The Crown sought a 3-year sentence, while the defence sought a conditional sentence, citing anti-Black racism and strict bail conditions.

The court considered sentencing principles, aggravating and mitigating factors, including Mr. Palmer's social context, lack of male role models, economic disadvantage, and prior lengthy pre-trial custody for charges that were ultimately withdrawn.

The court found a fit sentence to be two years less a day, and imposed a conditional sentence with strict conditions, emphasizing rehabilitation over incarceration given the unique circumstances.

The defendants moved to vacate a construction lien registered against their property by the plaintiff contractor, arguing the lien had expired.

The court found that the contract was either terminated by the defendants or abandoned by the plaintiff on August 18, 2022, when the defendants changed the locks and the plaintiff retrieved its tools with police assistance.

Because the plaintiff failed to perfect the lien by commencing an action and registering a certificate of action within 150 days of that date, the lien expired.

The motion was granted, the certificate of action was vacated, and costs were awarded to the defendants.

The applicant, charged with firearms offences, sought to exclude firearm evidence under s. 24(2) of the Charter, alleging a breach of his s. 8 rights due to an unlawful search.

The court found that while the general warrant for a cellphone was valid, the police search of the vehicle exceeded its scope, constituting a Charter breach.

Applying the Grant test, the court determined the breach was serious, the impact on the accused's Charter interests was significant (especially given his status as a victim in the underlying murder investigation), and despite society's interest in adjudication on the merits of serious firearm charges, the admission of the evidence would bring the administration of justice into disrepute.

The application to exclude the evidence was granted.

The applicant, Ali Bhatti, charged with firearms offences, sought to exclude firearm evidence under s. 24(2) of the Charter, alleging a s. 8 Charter breach due to an unreasonable search.

The court found that while the general warrant used to seize his cellphone was properly issued and based on reasonable grounds, the police exceeded its scope by searching a hidden compartment in his vehicle's door frame.

This search was deemed unreasonable, infringing the applicant's s. 8 Charter rights.

The determination on the s. 24(2) remedy (exclusion of evidence) was deferred for further written submissions.

Following a successful 12-day jury trial where the plaintiffs were awarded $2,170,188 in damages (net $1,749,690.54), the court addressed the parties' dispute over costs.

The plaintiffs sought partial indemnity costs until their offer to settle and substantial indemnity thereafter, arguing they "beat" their offer.

The defendants sought reductions for costs related to statutory accident benefits (SABS) litigation, an interlocutory motion to add a party, and a Workplace Safety and Insurance Appeals Tribunal (WSIAT) hearing, as well as certain disbursements.

The court, applying Rule 57.01 factors, fixed the plaintiffs' costs at $478,750.00 (inclusive of HST and disbursements) and allowed the defendants a $5,000 deduction for the collateral benefits motion, resulting in a net award of $473,750.00 to the plaintiffs.

The decision disallowed costs for the WSIAT hearing, the interlocutory motion, and certain disbursements (meals, courier, copying, adverse costs insurance), while partially allowing SABS-related costs due to the benefit derived by the defendants.

The applicant sought specific performance of three agreements of purchase and sale for land, conditional on consent severance approval.

The respondent purported to terminate the agreements, arguing the municipality would not consent to severance.

The court found that the respondent had a good faith duty to apply for consent severance, which it failed to do initially.

However, a "without prejudice" application was later made and rejected by the municipality.

The court held that the agreements explicitly required consent severance, not a plan of subdivision, and that Schedule A superseded Clause 15 regarding compliance with the Planning Act.

Therefore, the applicant was not entitled to compel the respondent to pursue a more expensive and time-consuming plan of subdivision.

The application for specific performance was dismissed, but the applicant was entitled to the return of their deposits with interest.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for long-term disability benefits on the basis that it was commenced outside the two-year limitation period.

The defendant also moved to dismiss the action for late service of the statement of claim, while the plaintiff cross-moved to validate service.

The court validated the late service of the statement of claim, finding the delay was due to solicitor inadvertence during the COVID-19 pandemic and caused no prejudice.

The court also allowed the summary judgment motion to proceed despite the defendant not having filed a statement of defence, finding the plaintiff's prior counsel had implicitly consented to the procedure.

On the limitation period issue, the court held that the plaintiff's claim was discovered when she received the initial denial letter, which clearly stated the denial was final and explicitly warned of the limitation period.

The internal appeal process did not pause the limitation period.

The action was dismissed as statute-barred.

This addendum clarifies and corrects the court's previous Reasons released on December 5, 2023, regarding the application of a statutory deductible to a Family Law Act award.

Following a jury trial, the court had initially misunderstood the parties' agreement, stating no deductible applied to Sandra McCurdy's $65,000 award.

This addendum rectifies that, confirming the award is subject to the statutory deductible of $22,183.63, resulting in a revised total net judgment for the plaintiffs.

Following a jury trial for damages arising from a motor vehicle accident, the court determined whether long-term disability benefits received by the plaintiff from a private Manulife policy were deductible from the jury's award for past and future income loss.

The court held that the Manulife benefits met the criteria under s. 3(7)(d) of Ontario Regulation 34/10, as they were offered to employed persons and the maximum benefit was calculated with reference to employment income.

Consequently, the benefits were deemed payments under an income continuation benefit plan, making them deductible from the income loss award and subject to assignment under s. 267.8 of the Insurance Act.

The plaintiff, a golf course operator, sought an interim injunction to regain possession of the golf course after the defendant owner purported to terminate their lease agreement.

The lease included a profit-sharing arrangement.

The defendant alleged breaches including failure to obtain a liquor license, poor record-keeping, and self-dealing by the plaintiff's principals, specifically pocketing cash from memberships and restaurant sales.

The court dismissed the plaintiff's motion, finding that the plaintiff failed to establish a strong prima facie case or irreparable harm, and that the balance of convenience favored the defendant due to the plaintiff's "unclean hands" and the irreparable breakdown of trust in the profit-sharing venture.

The defendant moved to compel the 94-year-old plaintiff, Estelle Bock, to attend an independent medical examination (IME) in Scarborough, Ontario, after she cancelled an initial appointment due to concerns about the long travel from Sarnia.

The plaintiff's family physician provided an affidavit stating that such travel would be detrimental to her health.

The court dismissed the defendant's motion, finding that requiring the plaintiff to travel to Scarborough was beyond inconvenient and jeopardized her health, despite the defendant's prima facie right to choose their expert.

The court granted the defendant leave to arrange an IME in London, Ontario, which the plaintiff's physician deemed medically feasible.

Costs of $2,000 were awarded to the plaintiff, payable forthwith, due to plaintiff's counsel's initial agreement to the Scarborough assessment.