Stephen T. Bale

The defendant brought a motion for summary judgment to dismiss the plaintiff's medical malpractice action on the basis that the limitation period had expired.

The defendant argued the plaintiff discovered the claim when he learned a nerve had been cut during surgery.

The court found that knowledge of a cut nerve, without reason to believe it was more than an unfortunate surgical outcome, was insufficient to start the limitation period.

The defendant's motion was dismissed, and partial summary judgment was granted to the plaintiff dismissing the limitation period defence.

During a trial, the Crown sought a ruling on the voluntariness of a video statement made by the accused to police, intending to use it for cross-examination.

The accused argued the statement was induced by a promise of release and that his section 10(b) Charter rights were violated because police failed to give a Prosper warning when he waived his right to counsel.

The court found no inducement, as the accused already knew he would be released on a promise to appear.

The court also held that the accused's waiver of his right to counsel was informed, unequivocal, and voluntary, dismissing the Charter application and ruling the statement admissible.

Geo.

Williamson Fuels Ltd. moved to stay the action, arguing that the plaintiff and H&M Combustion Services Ltd. failed to disclose a litigation agreement for approximately five years.

The court found that the agreement, which involved the plaintiff's insurer funding H&M's defense and third-party claim, altered the adversarial orientation of the lawsuit and should have been disclosed.

However, applying the principle of proportionality, the court determined that a stay of the action against Williamson was not an appropriate remedy, particularly given that the third-party claim itself was a nullity due to H&M's prior dissolution.

The motion to stay was dismissed.

The appellant appealed his conviction for assault with a weapon, arguing the trial judge erred in assessing the complainant's credibility, compartmentalizing the credibility analysis between the assault and acquitted sexual assault charges, and improperly using the timing of the complainant's call to police as corroboration.

The Superior Court of Justice dismissed the appeal, finding that the trial judge properly used the timing of the complaint as part of the narrative to assess credibility, did not compartmentalize the analysis, and made findings of fact that were available on the evidence.

Joe Ramono, charged with criminal negligence causing death and forged documents, applied to have evidence from searches of his business, Pro Street Auto, ruled inadmissible.

He alleged violations of his Charter right against unreasonable search or seizure, arguing that police failed to make full disclosure in the Information to Obtain (ITO) for the search warrants and that the searches exceeded the warrants' scope.

The court found no evidence of police deception or subversive conduct and determined that the ITO provided reasonable grounds for the warrants.

The court also found that the searches did not exceed the scope of the warrants and that the participation of an MTO officer was lawful.

The application was dismissed.

The applicant, charged with criminal negligence causing death, moved to sever his trial from a co-accused.

The applicant argued that the accused were not jointly charged, did not act in concert, had different conduct, and that severance was necessary for him to call the co-accused as a witness to elicit exculpatory evidence regarding the co-accused's drinking and driving history.

The court dismissed the motion, finding that the offences arose from the same series of events, the nexus between the accused was sufficient for a joint trial, and the applicant failed to demonstrate a reasonable possibility that the co-accused would testify or that such testimony would be favourable.

The court also noted the "cut-throat defence" element, which weighs against severance.

The applicant, Franklin Konopaski, sought remedies under sections 207 (winding up) and 248 (oppression) of the Business Corporations Act against his son, Michael Konopaski, and their jointly owned corporations, following an irrevocable breakdown in their business and personal relationship.

The court found that the required trust and confidence between the business partners no longer existed.

The appropriate remedy was an order for Michael to purchase Franklin's interest in their joint enterprise at fair market value, and an equalization of commissions from their investment business for the period of September 2014 to June 2016.

The court determined the valuation date to be June 30, 2016, and rejected the inclusion of Michael's solely owned professional corporations in the joint enterprise valuation, as well as the continued sharing of Michael's CFO salary.

The defendants moved for summary judgment to dismiss the plaintiff's action, arguing that the claims were statute-barred under the Limitations Act, 2002, and that the plaintiff was no longer a shareholder entitled to oppression remedies.

The court found that the plaintiff's oppression claims were statute-barred as she had sufficient knowledge of the facts before the limitation period expired.

However, the court granted judgment to the plaintiff for $30,130.07, representing a debt paid by her under a guarantee, as this specific claim was not statute-barred.

All other claims, including for legal fees and the defendants' set-off claim, were dismissed.

The defendants brought a motion for summary judgment, arguing that the plaintiffs' causes of action were statute-barred due to a limitation period and that a mortgage commitment obtained by the plaintiff was unenforceable.

The court found that damages did not accrue until the plaintiffs obtained an unfulfillable mortgage commitment, placing the claim within the limitation period.

The court also rejected the argument that the mortgage commitment was unenforceable, stating that the defendants could not rely on their own default to make such a claim.

The motion for summary judgment was dismissed.

The applicant moved for a stay of an order granting the respondent exclusive possession of the matrimonial home, pending a motion for leave to appeal.

The court proceeded to hear the motion for leave to appeal alongside the stay motion.

The applicant argued the motion judge ignored the Family Law Act provisions regarding equal right to possession and criteria for exclusive possession.

The court found no conflicting decisions and no good reason to doubt the correctness of the order, noting the applicant's failure to provide financial disclosure.

Both the motion for a stay and the motion for leave to appeal were dismissed.

The plaintiffs, who are farmers, entered into a three-year lease agreement to farm the defendant's land.

The defendant repudiated the lease after the first year, claiming she signed it under duress and that the plaintiffs breached the agreement by failing to provide specific fertilizer application records.

The court rejected the duress defence, finding the defendant signed voluntarily and allowed the plaintiffs to farm the land for eight months.

The court also found that the alleged breach regarding fertilizer records did not amount to substantial non-performance justifying termination.

The plaintiffs were awarded damages for lost profits for the remaining two years of the lease.

The appellants appealed the dismissal of their Small Claims Court action for damages to their vehicle caused by the respondents during restoration.

The trial judge dismissed the action mid-trial upon learning the appellants had traded the damaged vehicle to a third party, concluding the cause of action had disappeared.

The Divisional Court allowed the appeal and ordered a new trial, finding that the cause of action remained with the appellants as it had not been assigned, and that the trial judge erred in dismissing the claim without hearing all of the appellants' evidence.

The applicant sought clarification on the jurisdiction of a justice of the peace to issue a restraining order under subsection 36(7) of the Building Code Act, 1992, following a conviction for failing to comply with a property standards order.

The court confirmed that failure to comply with a property standards order constitutes a contravention of subsection 15.3(7) of the Act, thereby granting the justice of the peace jurisdiction under clause 36(1)(c) to issue the restraining order.

The applicant was permitted to proceed with its contempt application.

The applicant estate trustee applied to pass his accounts.

The respondent beneficiaries objected, alleging the trustee failed to pay debts, failed to diversify the stock portfolio, purchased shares on margin, improperly paid himself $70,000 as an alleged inter vivos gift, and incurred tax penalties.

The court found the trustee breached his fiduciary duties by failing to diversify and by making high-risk margin investments.

The court also found the $70,000 payment was an unperfected gift.

The trustee was removed and ordered to pay $357,140 to the estate to cover investment losses, tax penalties, excess compensation, and the invalid gift.

The applicant applied under section 46 of the Arbitration Act, 1991 to set aside an arbitral award.

The arbitrator had held that the parties' unanimous shareholder agreement was invalid and awarded the applicant $10,000 on a quantum meruit basis.

The applicant argued the arbitrator decided a matter beyond the scope of the arbitration agreement.

The court agreed, finding the validity of the agreement was not submitted to arbitration.

The court held it lacked jurisdiction to substitute its own damages award under section 46.

The court granted the applicant 90 days to elect whether to enforce the award or have it set aside.

The respondents commenced construction of an addition to their home without a building permit.

After a stop work order was issued, they applied for a permit but were refused due to deficient drawings.

The Township applied for an injunction and demolition order.

Despite multiple opportunities over four years, including a review by the Building Code Commission which confirmed the drawings were deficient, the respondents failed to submit compliant drawings.

The court granted the Township's application for an injunction and demolition order, but stayed the order for 90 days to give the respondents one final opportunity to comply.

The appellant appealed a Small Claims Court judgment ordering him to return $25,000 to the respondent.

The respondent and his wife had invested $35,000 in the appellant's internet start-up company, signing written agreements.

The trial judge found that the appellant had orally agreed to return the money on demand.

On appeal, the appellant argued that the respondent was not a proper party plaintiff and that the trial judge erred in admitting parol evidence of the oral agreement.

The Divisional Court dismissed the appeal, finding that the oral agreement did not contradict the written agreements and fell within the collateral contract exception to the parol evidence rule.

The court also added the respondent's wife as a party plaintiff.

The defendant Sun Life Assurance Company of Canada brought a motion for summary judgment to dismiss the plaintiff's claim for disability benefits, arguing it was statute-barred by the Limitations Act, 2002.

The plaintiff contended that the limitation period had not started due to a lack of a clear and unequivocal denial, or alternatively, that a rolling limitation period applied.

The court found that the plaintiff's claim was discovered before October 30, 2010, making the action commenced in October 2012 outside the two-year limitation period.

The court also rejected the application of a rolling limitation period for claims concerning initial entitlement to benefits.

Consequently, the plaintiff's claim was dismissed.

Damian Romaine Campbell was convicted by a jury of one count of simple assault, three counts of assault with a weapon, and one count of aggravated assault against his domestic partner.

The primary sentencing issue was the extent to which immigration consequences could be considered, as Campbell, a permanent resident, faced deportation if sentenced to six months or more on any single count.

The Crown sought a penitentiary sentence of six to eight years, while the defence proposed consecutive sentences of six months less a day per count to preserve Campbell's right to appeal a removal order.

The court found that the proposed defence sentence would be inadequate and artificial, failing to meet sentencing objectives given the severity, frequency, and duration of the domestic violence.

A global sentence of four and a half years was imposed, reduced by pre-sentence custody.

This appeal addressed the proper judicial disposition when evidence of mental disorder exists but the defence of not criminally responsible on account of mental disorder (NCRMD) has not been pleaded.

The trial judge had acquitted the respondent of assault with a weapon, relying on lay witness testimony about his mental condition to find a lack of general intent.

The appellate court found that the trial judge erred by considering mental condition evidence to negate mens rea before proving the essential elements of the offence and by relying on lay opinion.

The court reiterated that mental disorder evidence cannot negate mens rea for general intent offences and that the NCRMD defence must be properly raised.

The appeal was allowed, the acquittal set aside, and a new trial ordered.