Susan G. Himel

The Ombudsman of Ontario appealed a Divisional Court decision that held neither the Election Compliance Audit Committee nor the Property Standards Committee of the City of Hamilton constituted "local boards" within the meaning of section 14.1 of the Ombudsman Act.

The Ombudsman sought to investigate whether these committees complied with the public meeting requirement under section 239 of the Municipal Act, 2001.

The Court of Appeal upheld the Divisional Court's decision, applying the ejusdem generis principle to conclude that the general language in the definition of "local board" does not extend to investigative/adjudicative bodies that do not carry on the day-to-day operations of the municipality.

Consequently, the Ombudsman lacked jurisdiction to investigate these committees' compliance with open meeting requirements.

The respondent brought a motion to add WSP Canada Inc. as a defendant in an ongoing negligence action arising from the rehabilitation of a bridge.

The motion judge granted the motion, finding that the respondent's claim against WSP was not statute-barred under the Limitations Act, 2002 because the claim was not reasonably discoverable within the two-year limitation period.

WSP appealed to the Court of Appeal.

The Court of Appeal quashed the appeal for lack of jurisdiction, holding that the motion judge's order was interlocutory rather than final.

The motion judge's determination regarding the limitation period was made solely for purposes of deciding the motion to add a party and did not finally determine the limitations issue, which could be relitigated at trial.

The respondent moved to delist an appeal pending the outcome of outstanding matters in the Superior Court.

The Court of Appeal considered whether it should exercise its discretion to delist the appeal or allow it to proceed as scheduled.

The court determined that the appeal court was the appropriate forum to address the fundamental issue on appeal regarding whether an order made in the absence of the appellant should stand.

The motion was dismissed and the appeal was permitted to proceed as scheduled.

Costs were awarded to the responding party on a partial indemnity basis.

The appellant appealed a summary judgment decision from the Superior Court of Justice.

The Court of Appeal found no error in the motion judge's legal analysis regarding contractual interpretation, no material misapprehension of evidence, and no failure to consider relevant evidence.

The motion judge's factual findings met the reasonableness standard.

The appeal was dismissed with costs awarded to the respondent.

The offender was sentenced after trial for four counts of sexual interference arising from prolonged sexual abuse of four child complainants within the family, in circumstances involving a marked breach of trust.

The court held that denunciation, deterrence, and separation from society were the dominant sentencing objectives for persistent sexual abuse of vulnerable children by an adult in a position of trust.

After reviewing appellate authorities on historical and intrafamilial child sexual abuse, the court fixed a fit range at two to three years given the absence of intercourse or threats of violence, but the presence of multiple victims, one instance of digital penetration, and profound long-term harm.

A sentence of two years and six months concurrent was imposed, with DNA, lifetime SOIRA, and lifetime s. 161 prohibitions.

The accused was charged with dangerous operation of a motor vehicle causing bodily harm following a single-car collision on Highway 401.

The accused, driving a friend's car, approached another vehicle at a high rate of speed and made a sudden lane change to avoid a collision, losing control and striking the guardrails.

The passenger suffered significant injuries including a broken kneecap and concussion.

The court rejected the accused's claim that the passenger grabbed the steering wheel.

Applying the modified objective test, the court found the accused's excessive speed and sudden lane change constituted a marked departure from the standard of care of a reasonable driver.

The accused was found guilty.

The appellant attended a Kiss concert at the Canadian Tire Centre in Ottawa and was removed by security staff.

He commenced an action claiming damages for discrimination, harassment, intentional infliction of nervous shock, mental distress, loss of income, loss of reputation and loss of business.

Claims against McGhee Entertainment and Kiss were dismissed for failing to disclose a cause of action.

A motion to dismiss against Gene Simmons was granted on the basis that the sole claim was for discrimination, which is prohibited from proceeding as a standalone action under the Ontario Human Rights Code.

The appellant appealed the dismissal order against Simmons without asserting any alleged error of law.

Simmons brought a motion to quash the appeal as devoid of merit.

The appellant appealed a motion judge's order striking his claims for wrongful dismissal and severance pay.

The respondents cross-appealed seeking to strike the appellant's remaining claims for emotional distress, breach of human rights, and occupational health and safety violations.

The Court of Appeal upheld the striking of the wrongful dismissal claim but set aside the striking of the severance pay claim, finding that the limitation period for severance claims should run from the date of completion of employment rather than from the date of notice of termination.

The Court also upheld the motion judge's decision not to strike the remaining claims, finding them entangled with factual issues inappropriate for determination on a rule 21 motion.

The appellant appealed a summary judgment dismissing its action for breach of non-solicitation and non-interference covenants contained in an Asset Purchase Agreement and Non-Disclosure and Non-Solicitation Agreement.

The motion judge found the non-solicitation clauses unreasonable and unenforceable.

On appeal, the court determined that even if the motion judge erred in finding the covenants unenforceable, the action could not succeed because the motion judge made a factual finding that there was no evidence the respondent solicited clients of the appellant.

The appeal was dismissed and costs were awarded to the respondents.

The appellants, towing companies owned by members of the Six Nations of Grand River Indian Reserve, sought to retain vehicles towed and stored at their facilities pending payment of towing and storage fees.

The respondent insurance company, which had acquired ownership of the vehicles following accidents or thefts, brought applications under the Repair and Storage Liens Act to retrieve the vehicles.

The appellants claimed exemption from the provincial lien regime under section 89(1) of the Indian Act, arguing that the vehicles constituted personal property of Indians located on a reserve and therefore could not be seized by non-Indian parties.

The Court of Appeal dismissed the appeal, holding that section 89(1) of the Indian Act only protects against seizure by creditors or the Crown, not by debtors.

Since the respondent was a debtor rather than a creditor, the appellants could not claim the protection of section 89(1).

The appellant appealed a damages decision from the Superior Court of Justice.

The motion judge had declined to award damages due to the appellant's non-compliance with a pre-trial conference order regarding the filing of evidence.

The Court of Appeal found that although the appellant did not comply with the order, she had filed an affidavit with supporting documentation and a factum detailing her damages claim.

The appellate court held that the motion judge should have afforded the appellant an opportunity to file compliant evidence to support her claim.

The appellants, estate trustees of the testator's estate, appealed the trial judge's finding that the testator lacked testamentary capacity when executing two wills dated August 16, 2010 and September 8, 2010.

The trial judge found the testator was unaware of the nature and extent of his assets, did not remember persons he might be expected to benefit, and did not understand claims that could be made by excluded persons.

The appellants also sought leave to appeal the costs award, which required the estate trustees personally to pay costs rather than having them borne by the estate.

The Court of Appeal found no palpable errors of fact and upheld the trial judge's findings on capacity and costs.

The appellant sought to vary a trial judgment that had been set aside by the Court of Appeal.

The motion judge dismissed the motion on jurisdictional grounds.

The Court of Appeal upheld this decision, finding that the motion judge lacked jurisdiction to vary a judgment that had already been set aside by the appellate court.

The court also found no evidence of fraud or accidental slip that would justify relief under the applicable rules.

Appeal of a trial judgment in a property dispute between cottage owners.

The trial court found that the appellants had trespassed on the respondent's water lot and issued a permanent injunction restraining them from entering the dry land portion.

The appellants' counterclaim for an easement was dismissed.

On appeal, the appellants raised new arguments regarding riparian rights, accretion, and the high water mark, which had not been argued at trial.

The appellants also challenged the sufficiency of the trial judge's reasons and sought to adduce fresh evidence.

The Court of Appeal dismissed all grounds of appeal, finding that the appellants were attempting to fundamentally alter their case post-trial and that the trial judge's reasons were sufficient.

The accused was charged with sexual assault causing bodily harm and unlawful confinement after an incident in a hotel room.

The complainant, who was highly intoxicated, testified that the accused forced his way into her room, ripped off her underwear, and punched her repeatedly when she tried to escape.

The accused claimed they engaged in consensual sexual activity that went wrong and that he punched her to stop her from using the telephone.

The court rejected the accused's evidence, finding it contradictory and implausible.

While the court found the complainant was not so intoxicated as to lack capacity to consent, it accepted her evidence that she did not consent.

The accused was found guilty of both charges.

Zaheer Ahmad, charged with criminal harassment, applied for a review of his detention order, arguing that his pre-trial custody of 330 days constituted a material change in circumstances as it would likely exceed any potential sentence.

The applicant had a history of non-compliance with court orders and peace bonds, but had not contacted the complainant while detained.

The court found that the length of pre-trial detention did constitute a material change.

It further determined that the Crown had not met its onus to justify continued detention on secondary or tertiary grounds, despite the strength of the prosecution's case and the concerning circumstances of the alleged offence.

The court emphasized the presumption of innocence and the right to reasonable bail, concluding that further detention would undermine public confidence in the administration of justice.

The detention order was vacated, and Mr. Ahmad was released on a recognizance with conditions, including reporting to the Toronto Bail Program, residing at an approved address, attending counselling and medical treatment, and having no contact with the complainant.

This was a costs endorsement following a venue transfer motion in a slip and fall action arising from an incident at a rental cabin near North Bay.

The plaintiff had unsuccessfully sought to transfer the action to Welland, while the defendants successfully obtained a transfer to North Bay.

Applying s. 131(1) of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, the court held that costs should follow the event but reduced the defendants' requested amounts because the claims were excessive, involved duplication of preparation, and were disproportionate to the complexity of the matter.

The plaintiff was ordered to pay each defendant $1,200 inclusive of disbursements and HST.

The court considered whether a self-represented plaintiff's motion and underlying action should be summarily screened under Rule 2.1 of the Rules of Civil Procedure.

The court held the pleadings and submissions were repetitive, unintelligible, and duplicated issues raised in an earlier action that had already been stayed.

Finding the proceeding frivolous, vexatious, and an abuse of process, the court dismissed the proposed motion, prohibited further motions in the action without leave, and directed the registrar not to accept further filings.

Costs were left to be addressed by written submissions if sought.

The applicants sought urgent scheduling of an interlocutory injunction motion in a constitutional challenge to amendments under the Fair Elections Act affecting federal voting procedures, including voter information cards and vouching.

The court held that requests for expedition must balance procedural fairness, potential irreparable harm, and the practicality of a timetable for the parties and the court.

Given the complexity of the Charter issues and the extensive social science and expert evidence, the court declined the very early hearing date sought by the applicants but ordered an expedited case-managed schedule culminating in a two-day motion hearing in July 2015.

Multiple motions arising from five civil proceedings related to the Algo Centre Mall collapse sought transfer of a certified class action to Sault Ste.

Marie, trial together or common case management of related actions, and appointment of a single motions judge.

The court held that opt-out plaintiffs in separate proceedings lacked standing under rule 13.1.02 to seek transfer of the class action, and in any event failed to show that Sault Ste.

Marie was a significantly better venue than Toronto in the interest of justice.

The court further declined relief under s. 107(1) of the Courts of Justice Act because any transfer necessary to enable common case management or trial together would impose substantial cost and inefficiency, particularly given the existing class action case management structure.

Appointment of a rule 37.15 judge was also refused.