Susan G. Himel

The defendants moved for security for costs under Rule 56.01(1) of the Rules of Civil Procedure on the basis that the plaintiff, a former inmate who alleged severe injuries from an assault by other inmates, was ordinarily resident outside Ontario following deportation to the United States.

The court found that the plaintiff was indeed not ordinarily resident in Ontario, thereby meeting the threshold requirement of the rule.

However, the plaintiff had provided limited evidence regarding financial circumstances, and the evidentiary record concerning the merits of the negligence claim against correctional authorities remained incomplete at the early stage of proceedings.

The court held that assessing the merits required disclosure of institutional procedures and security measures primarily within the defendants’ control.

In balancing access to justice against protection of defendants from meritless claims, the court concluded that requiring security for costs at this stage would be unjust and premature.

The plaintiff moved for judgment under Rule 49.09 to enforce a $35,000 settlement agreement reached with the defendants regarding a dispute over recruitment services.

The defendants argued the settlement should not be enforced due to the plaintiff's alleged bad faith in failing to disclose it had hired two candidates presented by the defendants.

The court found the plaintiff had no knowledge the candidates were referred by the defendants and made no misrepresentations.

Applying a two-step analysis, the court concluded a binding agreement existed and there was no good reason not to enforce it.

The motion was granted and the settlement enforced.

The plaintiff law firm brought two actions against the defendants for unpaid legal accounts.

The defendants pleaded equitable set-off, alleging they were overcharged on previously paid accounts.

The plaintiff brought a motion under Rule 21.01(1)(a) to strike the equitable set-off defence, arguing it was statute-barred by the one-year limitation period in the Solicitors Act.

The court dismissed the motion, finding that material facts were in dispute regarding whether the accounts were interim or final, whether the presumption of acceptance by payment was rebutted, and whether special circumstances existed.

The court also noted that equitable set-off is generally not barred by statutory limitation periods.

The appellant, a 17-year-old youth, was involved in a gang shootout on a crowded street that resulted in the death of an innocent bystander.

He was convicted of second degree murder and sentenced as an adult.

On appeal, he argued the verdict was unreasonable regarding his identification as a shooter and causation of the victim's death, and challenged the Crown's decision to require a jury trial under the Youth Criminal Justice Act.

The Court of Appeal dismissed the appeal, finding the jury's verdict was reasonable based on the evidence, the mutual decision to engage in a gunfight established causation, and the Crown's decision to require a jury trial did not amount to an abuse of process.

The Crown appealed the dismissal of a charge against the respondent for permitting the operation of a commercial motor vehicle not equipped with a working speed-limiting system.

The trial justice of the peace acquitted the respondent, finding the certificate of offence did not match the evidence and raising a reasonable doubt about the testing device.

The appeal judge dismissed the Crown's appeal.

The Court of Appeal dismissed the Crown's further appeal.

Armstrong J.A. held the certificate of offence was defective for failing to reference the regulations.

Feldman J.A. dissented, finding the certificate sufficient and would have ordered a new trial.

Himel J. agreed with Feldman J.A. on the certificate's sufficiency but upheld the acquittal based on the trial justice's finding of reasonable doubt regarding the testing device.

During a criminal trial arising from a fatal motor vehicle collision, the defence challenged the admissibility of expert accident reconstruction evidence tendered by the Crown.

The proposed expert, a police collision reconstruction officer, was questioned on both his qualifications and whether his speed‑calculation methodology constituted novel scientific evidence.

Applying the admissibility framework from R. v. Mohan, the court held the witness possessed sufficient specialized knowledge through training and extensive investigative experience.

The court further held that the use of an “in‑line momentum” formula for speed calculation was an accepted technique within accident reconstruction and not novel science requiring special scrutiny.

The expert evidence was therefore admitted, with any methodological concerns affecting weight rather than admissibility.

During a lengthy criminal trial involving charges arising from a fatal motor vehicle collision, the Crown sought to call an additional accident reconstruction expert after the trial had already commenced and after the Crown’s primary reconstruction witness had testified.

The defence objected, arguing that the late disclosure of the expert report caused significant prejudice and that the court should exclude the evidence in the interests of trial fairness.

The court considered s. 657.3 of the Criminal Code and authorities addressing remedies for late expert disclosure.

It held that exclusion of relevant evidence is an exceptional remedy and that the prejudice to the accused could be addressed through a brief adjournment allowing the defence to consult its own expert.

The court therefore permitted the Crown to call the additional expert subject to an adjournment for the defence.

The appellant was convicted of aggravated assault following an altercation at a restaurant where he placed the victim in a headlock, resulting in the victim falling and suffering a severe brain injury.

At trial, the judge refused to leave the defence of consent to the jury, instructing them that consent is not a defence to aggravated assault.

On appeal, the Court of Appeal held that the trial judge erred, as consent is only vitiated if the accused both intended to cause serious bodily harm and actually caused it.

The appeal was allowed and a new trial ordered.

The appellant pleaded guilty to numerous serious offences, including armed robberies and break and enters, after voluntarily confessing to police following a religious conversion.

He was sentenced to 22 years consecutive to a 7-year sentence he was already serving.

On appeal, the Court of Appeal found the sentence was crushing and offended the totality principle, failing to give adequate credit for his voluntary confession and guilty pleas.

The appeal was allowed and the sentences were varied to total approximately 15 years.

The appellant appealed his conviction for break and enter, arguing the trial judge erred in relying on the doctrine of recent possession without rejecting the complainant's vague description of the intruders.

The Court of Appeal dismissed the conviction appeal, finding the trial judge gave no weight to the vague descriptions and was entitled to rely on recent possession.

The Crown appealed the 12-month sentence, arguing it was outside the range for home invasions and failed to consider psychological harm.

The Court of Appeal dismissed the sentence appeal, finding no error in the trial judge's approach given the offender's circumstances and the lack of submissions on psychological harm at trial.

The appellant appealed his dangerous offender designation, arguing there was insufficient evidence of a pattern of violence and that the predicate offence was intended as a property offence.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably concluded there was a pattern of violence against women in their homes.

The Court also agreed that a long-term offender designation was unrealistic given the appellant's history of failing to follow through with therapy and the level of supervision required.

The appellant appealed his convictions for discharging a firearm, threatening death, and drug offences.

He argued the trial judge failed to address frailties in the complainant's evidence and erred in admitting statements made to police without a caution.

The Court of Appeal dismissed the appeal regarding the complainant's evidence, finding the trial judge was alive to the issues.

However, the Court allowed the appeal regarding the threatening death convictions, finding the statements to police were not voluntary because no caution was given and the second officer did not testify.

A new trial was ordered for the threatening death charges.

The appellant appealed a disposition of the Ontario Review Board that continued his detention in a medium secure unit, seeking a transfer to a minimum secure unit or a hybrid order.

The Court of Appeal dismissed the appeal, finding the Board's order was not unreasonable given the treating psychiatrist's evidence that the appellant remained a high risk to reoffend and had yet to undergo psychiatric testing.

The City of Waterloo applied for judicial review of two orders made by delegates of the Information and Privacy Commissioner, which required the City to disclose the total dollar amount of its legal bills.

The City argued the adjudicators exceeded their jurisdiction by failing to find the records were protected by solicitor-client privilege under s. 12 of the Municipal Freedom of Information and Protection of Privacy Act.

The Divisional Court dismissed the applications, finding the adjudicators correctly decided the cases on their facts rather than on inapplicable hypothetical scenarios.

The tenant applied for leave to appeal an interlocutory order that imposed the payment of $74,555.50 as a term of adjourning the mortgagee's application for possession and arrears.

The tenant argued the motions judge failed to consider its claim for set-off based on repair expenses.

The Divisional Court dismissed the application for leave, finding no reason to doubt the correctness of the discretionary order and no conflicting decisions on the issue of a tenant's right to set-off against a mortgagee in possession in these circumstances.

The Industry Coalition for Environmental Fairness Inc. (ICEF) and the Environmental Commissioner of Ontario brought motions for leave to intervene in a judicial review of an Environmental Review Tribunal decision.

The underlying judicial review concerned the test for leave to appeal under the Environmental Bill of Rights regarding certificates of approval issued to a cement company.

The court dismissed both motions, finding that ICEF lacked a direct interest and would not make a useful contribution without causing delay, and that the Environmental Commissioner's proposed intervention would not provide a different perspective from the existing parties and would likely prejudice them.

The applicant sought judicial review of a decision by the Agriculture, Food and Rural Affairs Appeal Tribunal.

The Divisional Court granted the application, finding that the Tribunal failed to make necessary findings of fact regarding the mailing and receipt of a letter, and took into account irrelevant considerations.

The Tribunal's decision was set aside and the matter remitted to a differently constituted panel.

The applicant sought judicial review of the Ontario Human Rights Commission's decision not to refer his race discrimination complaint to a tribunal.

The Commission and Crown respondents brought motions to strike individual commissioners, employees, and Crown entities as parties, and to strike the applicant's affidavit.

The Divisional Court granted the motions, finding that only the Commission exercises a statutory power of decision, the Crown respondents had no role in the proceedings, and the applicant's affidavit contained inadmissible extrinsic evidence and argument not before the Commission.

The plaintiffs moved to dismiss the defendants' appeal for delay, and the defendants brought a cross-motion to extend the time to perfect their appeal of a Master's order striking their pleadings.

The Master had previously struck the defendants' pleadings due to repeated failures to comply with timetables and court orders.

The Divisional Court found that the defendants failed to demonstrate a bona fide intention to appeal within the prescribed time, that the delay was excusable, or that the appeal had merit.

The court granted the plaintiffs' motion to dismiss the appeal for delay and dismissed the defendants' cross-motion for an extension of time.

The appellant appealed a Master's decision dismissing his motion to amend pleadings to add three defendants and new causes of action, as well as the Master's costs award.

The Divisional Court found no palpable and overriding error in the Master's conclusion that the proposed claims against the new defendants were untenable in law and that the new causes of action were barred by issue estoppel.

The appeal was dismissed, and costs were awarded to the respondent on a partial indemnity basis.