Sunil S. Mathai

The accused was tried for sexual assault arising from an evening of drinking that culminated in sexual activity on a couch in his office.

The Crown alleged that the complainant was asleep during the sexual activity and did not consent, while the defence asserted that the sexual touching occurred consensually while she was awake and that the only non-consensual act was photographing her while asleep.

Applying the sexual assault consent framework, the Villaroman approach to circumstantial proof, and the W.(D.) principles, the court found the complainant’s evidence on the core alleged sexual activity unreliable in several material respects and accepted the toxicology evidence that the complainant was not incapacitated, though possibly in a deep sleep.

The court further held that the DNA evidence did not exclude reasonable inferences consistent with the defence account.

The accused was acquitted because the Crown failed to prove beyond a reasonable doubt that the complainant did not consent to the sexual touching.

The respondent mother brought a motion to end her supervised parenting time with her two children, which had been ordered on a temporary basis due to her substance abuse issues.

The court applied the material change in circumstances test under section 29 of the Children's Law Reform Act, noting an exception for time-limited temporary orders.

The court found that the mother had not provided compelling evidence of her sobriety or that she had overcome her addiction issues.

Furthermore, reports from the supervision facility indicated inappropriate conduct during visits.

The motion to end supervised parenting time was dismissed, though the court varied the order to permit communication via a different application.

The applicant sought declarations regarding the interpretation of her late husband's holographic will.

The primary issue was whether a clause stating the applicant 'shall assume ownership' of the family home granted her full ownership or merely a life interest, given a subsequent clause leaving the equity to the respondents upon the applicant's death.

The court applied the armchair rule and considered admissible extrinsic evidence, concluding that the ordinary meaning of 'assume ownership' granted full ownership.

The subsequent clause was interpreted as a gift over that would only apply if the applicant had predeceased the testator.

The defendant physician in a medical malpractice action sought an extension under rr. 53.03(4) and 53.08(1) of the Rules of Civil Procedure to serve three late expert reports.

The court granted the motion with respect to one report, finding that the unexpected death of the originally retained expert constituted a reasonable explanation for the delay.

However, the court denied the motion for the remaining two reports, holding that trial counsel's admitted inattentiveness to the file and deliberate choice to prioritize other matters did not constitute a reasonable explanation, and that the conjunctive test under the amended r. 53.08(1) required dismissal absent satisfaction of that threshold.

The corporate defendants, CYD Investment Inc. and CY Capital Inc., brought a motion to dissolve a Mareva injunction granted ex parte against all defendants in a fraud action.

The plaintiff alleged the corporate defendants were vehicles for a co-defendant's fraudulent scheme involving private mortgage lending.

The court found that the more developed evidentiary record undermined two key factual underpinnings of the Mareva order: the strong prima facie case that the co-defendant controlled the corporate defendants, and the finding of a real risk of asset dissipation.

The balance of convenience also favoured dissolution given sufficient assets remained under other injunctions to satisfy the claim.

The Mareva injunction was dissolved against the corporate defendants, with a reference ordered for damages and costs awarded in their favour.

The defendant, a real estate appraiser, brought a motion to strike the plaintiff's statement of claim for negligent misrepresentation.

The plaintiff alleged the defendant negligently appraised a property, causing a buyer's bank to refuse financing and the sale to fall through.

The court granted the motion to strike, finding it plain and obvious the claim would fail because the appraiser owed no duty of care to the plaintiff.

The appraisal was prepared solely for the buyer's bank, and the plaintiff did not rely on it.

During a judge-alone trial for sexual assault and related offences, the accused brought a mid-trial application under s. 276 of the Criminal Code to cross-examine the complainant about her potential sexual activity with another individual during the two weeks prior to the alleged assault.

The accused sought to challenge the Crown's reliance on documented injuries as corroboration of the assault.

The Crown opposed the application, arguing the accused lacked an evidentiary foundation to establish that other sexual activity occurred.

The court held that s. 276 does not always require particularization of identifiable instances of sexual activity where the accused seeks to challenge the cause of physical injuries.

The court granted the application, permitting a cascading line of cross-examination to balance the accused's right to make full answer and defence with the complainant's privacy and dignity.

The applicant brought a motion seeking interim child support, arrears, and the sale of the jointly owned matrimonial home.

The respondent opposed the relief, seeking to impute a higher income to the applicant, lower child support below the table amount, and requesting exclusive possession of the home.

The court ordered interim child support at the table amount, finding insufficient evidence to impute income or deviate for shared parenting.

The court deferred the issue of arrears to trial due to conflicting evidence.

The court granted the order for the sale of the matrimonial home, rejecting the respondent's request for exclusive possession, but delayed the listing until June 2026 to allow the respondent time to find new housing.

The moving party sought an extension of time under r. 53.03(4) of the Rules of Civil Procedure to serve a responding orthopaedic expert report after the pre-trial conference deadline.

The court applied r. 53.08(1), including post-amendment authorities emphasizing that late expert reports are not to be routinely permitted and that the moving party must show both a reasonable explanation and no non-compensable prejudice or undue trial delay.

The court found the missed deadline was caused by inadvertence in trial scheduling communications rather than inattentiveness to the file, and accepted that explanation as reasonable on the record.

The court also found any prejudice could be addressed by costs and that trial delay was not established.

The motion was granted, with the moving party required to pay reasonable costs of an expedited reply report, and no costs were ordered on the motion.

The plaintiff sought an interlocutory Mareva injunction against the defendants to freeze their assets pending trial.

The plaintiff alleged that the defendants fraudulently induced him to invest approximately $350,000 in what was represented as a legitimate investment scheme.

The court granted the interlocutory Mareva injunction against one defendant based on a strong prima facie case of civil fraud, evidence of asset dissipation, and irreparable harm.

The motion was dismissed as against the other defendants due to insufficient evidence of a strong prima facie case against them.

The accused was charged with assault with a weapon and unlawful confinement arising from an October 2022 incident.

The Crown's case relied on video evidence and testimony from a co-accused who had pleaded guilty.

During trial, the Crown's key witness expressed repeated safety concerns and refused to answer questions about who recorded the videos, citing fears for his and his family's safety.

The accused brought a mistrial application, arguing that the jury would speculate that the accused or someone connected to him was the source of the witness's fears, and that the jury would infer the accused was the videographer based on the witness's reluctance to answer.

The trial judge dismissed the mistrial application, finding that a mid-trial instruction and final jury charge adequately remedied any prejudice.

The jury subsequently convicted the accused of assault with a weapon and acquitted on unlawful confinement.

The plaintiff sought to set aside a Registrar's dismissal order dated October 10, 2024, which dismissed the action for delay.

The action arose from a failed agreement of purchase and sale for a property.

The plaintiff alleged breach of contract and sought damages against the defendants.

The court applied the Reid factors test and found that the plaintiff failed to provide satisfactory explanations for the substantial litigation delay spanning over six years.

The court dismissed the motion, finding that the principle of finality outweighed the interest in having the action decided on its merits, particularly given the inordinate delay without adequate explanation.

The court dismissed a motion to strike the jury notice following closing arguments in a negligence trial arising from a motor vehicle accident.

The plaintiffs objected to 19 statements made by defence counsel in his closing address, alleging they were inflammatory, invited improper reasoning, misstated the law, and appealed to emotion.

The court found some statements objectionable but determined that corrective jury instructions were sufficient to remedy any prejudice, making discharge of the jury unnecessary.

The jury subsequently found the defendants liable in negligence, apportioning liability at 93% to one defendant and 7% to the other.

Three consolidated civil actions arose from a motor vehicle accident on April 22, 2016, near Stouffville, Ontario, involving three vehicles.

The defendant Rae argued he owed no duty of care to the plaintiffs.

The court ruled on the duty of care issue at the close of the plaintiffs' case, finding that Rae owed a duty of care to all plaintiffs as a driver to other users of the roadway.

The court applied established jurisprudence recognizing the duty of care owed by drivers to other road users and rejected Rae's arguments based on the distinction between nonfeasance and misfeasance, finding that driving is a heavily regulated activity and that the duty of care exists regardless of whether specific statutory obligations apply to the particular conduct alleged.

The applicant mortgagee sought an order setting aside tenancy agreements entered into by the mortgagor with tenants at a residential property and sought leave to issue a writ of possession.

The court dismissed the application against two respondents (upstairs tenants) who had established a legitimate tenancy predating the mortgagor's default.

With respect to unnamed basement tenants, the court found insufficient evidence to satisfy the three-part test under section 52 of the Mortgages Act for setting aside a tenancy agreement.

The court declined to grant a writ of possession as section 48 of the Mortgages Act prohibits possession of rental units except in accordance with the Residential Tenancies Act.

Instead, the court issued an order requiring the mortgagor and basement tenants to provide full particulars of the tenancy agreement by October 31, 2025, allowing the applicant to renew its application if appropriate.

The court awarded costs to the upstairs tenants.

The defendants brought a motion to set aside a noting in default after being served with a statement of claim seeking an interlocutory and permanent mandatory injunction to remove an iron gate that obstructed the plaintiffs' registered right of way.

The defendants did not defend the action and were noted in default.

The plaintiffs subsequently obtained an interlocutory injunction order and removed the gate.

The defendants then sought to set aside the noting in default.

The court applied the Franchetti factors and granted the motion, emphasizing the strong preference for resolving civil actions on their merits, the absence of prejudice to the plaintiffs, and the significant prejudice to the defendants if the default were not set aside.

The court noted that the plaintiffs' failure to advise the defendants of the noting in default or serve them with the motion record weighed in favour of setting aside the default.

The applicant sought leave to appeal an interim arbitration award concerning child support, spousal support, and arrears payments, and alternatively sought to set aside the award on grounds of procedural fairness.

The arbitrator had awarded increased child support of $3,396 monthly, deferred spousal support pending final determination, and ordered $1,000 monthly toward child support arrears.

The applicant challenged the arbitrator's reliance on 2024 income despite the applicant's current unemployment, alleged failure to consider the applicant's veteran's pension and the respondent's rental support, and claimed procedural unfairness.

The court dismissed both the motion for leave to appeal and the application to set aside, finding that the applicant's allegations raised questions of fact or mixed fact and law rather than extricable questions of law, and that no procedural fairness breach occurred.

The defendants brought a motion to enforce a settlement agreement reached with the plaintiff regarding a default judgment arising from a failed real estate transaction.

The plaintiff sought to enforce the default judgment through garnishment and sheriff's sale.

The court found that a binding settlement agreement existed on essential terms, that the defendants had not breached or resiled from the agreement, and that the timing of collateral mortgage registration was not an essential term.

The court granted the motion to enforce the settlement, cancelled the scheduled property sale, and ordered specific performance of the settlement terms with deadlines for mortgage registration and final payment.

Debtors moved to set aside, stay, or refuse a garnishment process seeking to enforce an adjudicator's determination requiring payment of the second draw under a construction contract.

The debtors argued that enforcement would be inequitable and unfair, and would result in double recovery for the contractor through both garnishment and a registered lien.

The court dismissed the motion, finding that the adjudicator's determination was binding and enforceable through garnishment, and that the debtors' arguments amounted to an impermissible collateral attack on the adjudicator's decision.

The court held that garnishment motions are not intended to review the correctness of the underlying order and that allowing such review would undermine the prompt payment and prompt adjudication provisions of the Construction Act.

The plaintiff brought a motion to amend the statement of claim to increase damages from $1,000,000 to $6,000,000 based on a Future Cost of Care report dated January 27, 2025, and the plaintiff's failure to recover as well as expected following amputation of his arm.

The defendants opposed the motion, arguing that the evidence from discovery did not support the increased damages and that the amendment exceeded their insurance policy limits.

The court granted the motion, finding that all factors under the applicable test favoured amendment and that exceeding policy limits does not constitute non-compensable prejudice.

Costs were awarded to the plaintiff.