Thomas A. Bielby

The Appellant (L) appealed a family law decision that found her guilty of parental alienation and implemented a custody reversal.

L raised several grounds of appeal, including the trial judge's refusal to conduct a judicial interview of the child, refusal to re-open the trial for fresh evidence regarding sexual abuse allegations (which were later disproven), alleged judicial bias, and an incomprehensible order.

The court dismissed the appeal, upholding the trial judge's discretionary decisions, finding no error in the fresh evidence application denial (due to lack of credibility and due diligence), no apprehension of bias, and that the reasons for the custody reversal were adequately provided and the order was functional.

The accused, Jasgeen Singh, was charged with robbery under section 344 of the Criminal Code of Canada.

The Crown alleged that Singh stole a vehicle and used violence against a passenger, Bhawana, to overcome her resistance to the theft.

The defence challenged the identification of Singh as the perpetrator and argued that the violence occurred after the theft was complete.

The court found the identification evidence, including surveillance video and a key fob found on the accused, to be overwhelming.

It also determined that the struggle for a cell phone and the physical push of Bhawana from the vehicle constituted sufficient violence, occurring contemporaneously with the theft.

Singh was found guilty of robbery.

The applicant sought a declaration invalidating sections of the respondent municipality's procedural by-law, arguing they breached his Charter rights, particularly freedom of expression, by limiting his ability to communicate with elected officials.

The municipality contended the limitations were reasonable and necessary for efficient governance.

The court found that while the by-law sections technically limited the applicant's freedom of expression, they constituted reasonable limits demonstrably justified under section 1 of the Charter, as they were necessary for the orderly and efficient conduct of municipal business.

The application was dismissed.

The applicant sought a stay of proceedings, alleging breaches of his Canadian Charter of Rights and Freedoms sections 7, 10(b), and 12.

The court found that police officers assaulted the applicant while he was vulnerable in a hospital bed, handcuffed, and suffering from a gunshot wound, and that his right to counsel without delay was violated.

The court accepted the applicant's evidence over the officers' and found the police conduct to be offensive to societal notions of fair play and decency.

Applying the R. v. Babo test for abuse of process, the court determined that a stay of proceedings was the appropriate remedy, as no alternative remedy could adequately disassociate the justice system from such egregious misconduct.

The buyer (defendant/plaintiff by counterclaim) sought specific performance of an Agreement of Purchase and Sale for a residential property.

The seller (plaintiff/defendant by counterclaim) argued the agreement was null and void because the buyer failed to waive a home inspection condition before the deadline.

The court found that the seller's real estate agent made misrepresentations to the buyer regarding the seller's availability to sign an amending agreement and his agreement to a price abatement.

These misrepresentations breached the duty of honest contractual performance and caused the buyer to delay delivering the waiver.

As a result, the seller could not rely on the expiry of the condition period.

The court granted specific performance to the buyer.

The offender, an aviation mechanic, was convicted of attempting to import cocaine and possessing proceeds of crime after participating in a police sting operation.

He used his airport security clearance to retrieve a package he believed contained one kilogram of cocaine from an airplane panel.

The court found his moral culpability was significantly higher than a mere courier due to his breach of trust and planning.

He was sentenced to a net term of 4 years and 11 months in custody.

The applicant was charged with possessing and importing fraudulent documents under the Immigration and Refugee Protection Act (IRPA).

He brought a constitutional challenge seeking to strike down the mandatory rebuttable presumption in s. 122(2) of the IRPA, which presumes an intent to contravene the Act upon proof of possession of altered documents.

The court found that the presumption violates the right to be presumed innocent under s. 11(d) of the Charter because proof of possession does not lead inexorably to an intent to contravene the IRPA.

The court also found a violation of s. 7 of the Charter.

The violations could not be saved under s. 1, as the presumption did not minimally impair the applicant's rights.

Section 122(2) was declared of no force and effect.

The plaintiff brought a motion to compel additional financial disclosure and for a finding of contempt against the defendants for allegedly breaching prior court orders requiring answers to written questions and disclosure.

The court dismissed the contempt motion, finding that conflicting affidavit evidence prevented a finding of contempt beyond a reasonable doubt.

The court also declined to order additional disclosure, holding that the plaintiff must first conduct an examination in aid of execution under Rule 60.18 before seeking such relief by motion.

The offender was convicted by a jury of importing 2.5 kilograms of cocaine into Canada.

At sentencing, the offender argued for a conditional sentence, citing systemic racism, a difficult childhood, and harsh pre-sentence custody conditions including segregation and lockdowns.

The court acknowledged the offender's difficult background and the existence of systemic racism, which justified a sentence slightly below the standard 6-8 year Cunningham range.

However, the court found that the seriousness of the offence required a period of incarceration.

The court imposed a base sentence of 4.5 years, reduced to 3.5 years after applying Summers credit for pre-sentence custody.

The plaintiff vendor brought a motion for summary judgment against the defendant purchasers for failing to close a real estate transaction.

The defendants failed to obtain mortgage financing after the third-party bank's appraisal flagged potential issues with the property.

The defendants did not file responding materials.

The court granted summary judgment, finding the defendants breached the unconditional agreement of purchase and sale.

The court awarded damages to the plaintiff and dismissed the defendants' counterclaim and third-party claims.

Applying recent appellate authority, the court ordered the defendants' deposit to be credited towards the damages awarded.

Following a trial regarding the parties' respective interests in a residential property, the respondent was the successful party and sought costs.

The respondent had made an offer to settle that exceeded the applicant's recovery at trial.

The court awarded the respondent costs on a partial indemnity basis up to the date of the offer, and on a full recovery basis thereafter pursuant to Family Law Rule 18(14), fixing the total costs payable by the applicant at $21,520.61 after deducting costs for a prior motion.

The appellant father appealed an arbitration award that ordered the parties' two children to attend a public school rather than a private Montessori school for the 2020/2021 academic year.

The arbitrator had considered factors including proximity, class size, and community ties.

The appellant argued the arbitrator erred in law by overemphasizing proximity, and made factual errors regarding travel times.

The court admitted fresh evidence from both parties but ultimately found no errors of law, palpable and overriding errors of fact, or errors of mixed fact and law in the arbitrator's exercise of discretion.

The appeal was dismissed, with the court noting that changing schools so late in the academic year during the COVID-19 pandemic would not be in the children's best interests regardless.

The defendants brought a motion to dismiss the plaintiff's action for lack of jurisdiction.

The plaintiff, a former police officer, sued for breach of a resignation agreement negotiated between herself, the police board, and the police association.

The court first determined that the jurisdictional issue was not res judicata, as a previous motion judge had struck the claim on other grounds without deciding the jurisdictional question.

Applying the Weber exclusive jurisdiction model, the court found that the essential character of the dispute arose from the collective agreement.

Therefore, exclusive jurisdiction to resolve the dispute lay with a labour arbitrator, not the Superior Court.

The action was dismissed.

The parties, former common-law partners, disputed the division of proceeds from the sale of a jointly owned home.

The applicant held a 99% interest on title, which she claimed reflected her sole contribution to the down payment and closing costs.

The respondent, who held a 1% interest, argued the ownership structure was solely to maximize a first-time homebuyer land transfer tax rebate and that they intended to be equal owners.

The court found that the parties were engaged in a joint family venture and that the respondent's payment of the mortgage and other contributions established a constructive trust for a 49% interest.

The net sale proceeds were ordered to be divided equally, subject to adjustments for post-separation expenses and a joint line of credit debt attributed solely to the respondent.

This decision concerns the sentencing of two young offenders, U.K. and R.P., convicted by a jury of sexual assault.

The victim, aged 17, was severely intoxicated and unable to consent.

U.K. committed non-consensual fellatio, and R.P. committed non-consensual fellatio and attempted intercourse.

The court considered aggravating factors, including the victim's vulnerability, the multiple acts of assault, and the profound, lasting impact on the victim.

Mitigating factors included the offenders' youth, lack of prior criminal records, and prospects for rehabilitation.

The court emphasized denunciation and deterrence as paramount sentencing principles, balancing them with rehabilitation.

Both offenders were sentenced to two years less a day incarceration, followed by two years probation, along with ancillary orders including a publication ban, weapons prohibition, and DNA sample order.

Judge-alone criminal trial on allegations of sexual assault, sexual interference, and invitation to sexual touching involving a child complainant who frequently stayed at a relative's home.

The central issue was credibility and reliability, with the court applying the W. (D.) framework to conflicting testimony from the complainant and the accused.

The court found aspects of the complainant's evidence compelling but identified significant inconsistencies and a possible motive to fabricate arising from being confronted about internet pornography searches.

Because the court was unable to decide whom to believe and was left with a reasonable doubt, the accused was acquitted on all counts.

The appellant auto repair shop appealed a Small Claims Court decision dismissing its action for vehicle repair, towing, and storage costs.

The trial judge found that the respondent vehicle owner had not authorized the repairs and that the appellant had breached multiple provisions of the Consumer Protection Act.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding authorization.

The court also upheld the refusal to award damages on a quantum meruit basis, noting the appellant's unclean hands and lack of an equitable basis for relief.

The applicant sought to be reinstated as a member and director of a not-for-profit religious corporation after being removed for allegedly misappropriating donation funds.

The respondents terminated his membership following an investigation and video surveillance.

The court dismissed the application, finding that the respondents had the authority to terminate the membership under the corporate by-laws and acted with procedural fairness.

Furthermore, relying on Supreme Court precedent, the court held it lacked jurisdiction to intervene in the membership decisions of a religious organization absent an underlying legal right.

The applicant, charged with possession of cocaine for the purpose of trafficking, brought pre-trial motions seeking the exclusion of evidence discovered during a vehicle search and utterances made to police.

The applicant alleged violations of her rights under ss. 8, 9, 10(a), and 10(b) of the Charter, as well as racial profiling and involuntary statements.

The court found the utterances were voluntary and dismissed the racial profiling claim.

While the court found a minor s. 10(b) breach due to a six-minute delay in providing the right to counsel, it held the initial detention was authorized under the Highway Traffic Act and the subsequent search of the vehicle and purse was authorized under the Liquor Licence Act.

Applying the Grant framework, the court concluded the evidence should not be excluded under s. 24(2) of the Charter.

The applicant, one of four co-accused charged with a home invasion, brought an application to sever his trial from his co-accused.

The joint trial was scheduled for a date when the applicant's counsel of choice was unavailable, largely due to the court's efforts to schedule the trial within the Jordan ceiling.

The applicant agreed to waive his s. 11(b) Charter rights if severance was granted.

The court granted the severance, finding that forcing the applicant to proceed without his counsel of choice, when he was not responsible for the scheduling conflict, would violate principles of fairness and the interests of justice.