Thomas A. Heeney

The prosecution brought an application to elicit similar act evidence from a prior incident where the accused was originally charged with sexual assault but pleaded guilty to common assault.

The prosecution sought to call the prior complainant to testify that the assault was sexual in nature.

The court held that issue estoppel applies equally to acquittals flowing from a trial and those resulting from a guilty plea.

Because the accused was acquitted of sexual assault in the prior proceeding, the absence of a sexual element was conclusively determined in his favour.

The application was dismissed.

Following the dismissal of the plaintiffs' motion to enforce a settlement in a motor vehicle accident claim, the court determined the costs of the motion.

The defendant sought full indemnity costs of $122,826.71, arguing the plaintiffs' counsel made misleading statements during a pretrial that led to the repudiated settlement.

The court awarded partial indemnity costs fixed at $100,000 to the defendant.

The court declined to order costs personally against the plaintiffs' counsel under Rule 57.07(1), finding that while counsel's representations led to the settlement, the costs of the motion were caused by the plaintiffs' tactical decision to seek enforcement rather than proceed to trial.

The applicant sought to confirm a provisional order from Saskatchewan varying a spousal support order.

The original order calculated support based on Line 150 income.

The respondent incorporated a professional corporation, artificially reducing his Line 150 income.

The court confirmed the provisional order, finding the incorporation a material change in circumstances and the respondent's conduct blameworthy.

It ordered retroactive support, adjusted disclosure dates, and addressed tax implications for arrears, remitting the matter back to Saskatchewan for final arrears calculation.

Following the dismissal of the plaintiffs' action for malicious prosecution and other torts against multiple public servants and entities, the successful defendants sought costs.

The court considered the Rule 57.01 factors, noting the complexity of the case, the plaintiffs' unfounded allegations of malice and conspiracy, and the defendants' reasonable offers to settle.

The court fixed costs at $260,000 for the municipal defendants and $231,100 for the provincial defendants, representing an amount between partial and substantial indemnity.

The appellant physician appealed an interlocutory order granting the plaintiff leave to amend his Statement of Claim to add a novel claim in negligence against her.

The plaintiff alleged the physician owed him a duty of care when she provided psychiatric advice to a patient regarding the plaintiff, an unidentified third party.

The Divisional Court allowed the appeal, finding it plain and obvious that no prima facie duty of care existed due to a lack of proximity, and that residual policy considerations, including conflicting duties and the chilling effect on physicians, negated any such duty.

The appellant appealed and the respondent cross-appealed a trial decision regarding equalization of net family property, spousal support, and retroactive child support.

The Divisional Court allowed the appeal in part, finding the trial judge failed to provide adequate reasons for the net family property valuation and erred in allowing the equalization payment to be made over time without a finding of hardship.

The court also awarded retroactive spousal support to the appellant, holding that the respondent's structured settlement annuity payments constituted income.

The cross-appeal regarding the exclusion of shares purchased with annuity funds was dismissed.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his application.

He alleged his former employer, the Ottawa Catholic School Board, failed to accommodate his return to work from a medical leave by improperly requiring him to attend an independent medical examination (IME).

The Divisional Court dismissed the application, finding the Tribunal reasonably concluded that the employer had a bona fide reason to question the treating physician's medical information and was justified in requesting an IME.

The Court also upheld the Tribunal's refusal to admit post-application evidence regarding the accommodation process.

The tenant, who lived in rent-geared-to-income premises, appealed a Landlord and Tenant Board eviction order for non-payment of rent.

The tenant argued the rent increases were unlawful.

The Board ruled it lacked jurisdiction to determine the lawful rent under s. 203(a) of the Residential Tenancies Act.

The Divisional Court allowed the appeal, finding that because the tenant's rent was not payable under the Housing Services Act, s. 203(a) did not deprive the Board of jurisdiction to determine the lawfulness of the rent charged.

The matter was remitted for a new hearing.

The applicant, a professional engineer, sought judicial review of a decision by the respondent's Complaints Committee refusing to refer his complaint against another engineer to the Discipline Committee.

The applicant alleged the other engineer engaged in professional misconduct by inappropriately sharing confidential shop drawings with a competitor and having a conflict of interest.

The Divisional Court found that while the Complaints Committee's written reasons were defective for lacking transparency, the record before the Committee provided ample justification for its decision.

Applying the principles from Newfoundland Nurses, the court supplemented the reasons with the record and concluded the decision was reasonable.

The application for judicial review was dismissed.

The appellant appealed a decision of the Consent and Capacity Board which found her incapable of making treatment decisions regarding anti-psychotic medications.

The Board found she understood relevant information but could not appreciate the foreseeable consequences of her decisions due to her inability to recognize her mental condition's manifestations.

The Superior Court upheld the Board's decision, finding no error of law and that the Board's application of the capacity test was reasonable, particularly regarding the corroboration of suicidal ideation as a manifestation of her condition, despite her attributing it to life circumstances.

Postmedia Network Inc. applied to lift a sealing order on an Information to Obtain (ITO) related to a police investigation into Elizabeth Wettlaufer, who faced multiple murder and assault charges.

The Crown and counsel for the accused opposed the application.

The court applied the Dagenais-Mentuk test, finding that much of the redacted "Incriminating information" in the ITO posed a serious risk to the accused's fair trial rights, which could not be mitigated by alternative measures due to the national media attention and highly prejudicial nature of the information (e.g., confessions, DNA evidence).

While acknowledging the impact on freedom of the press, the court determined that the temporary sealing, with a further redacted version immediately accessible and a complete un-redacted version to be released after trial, balanced these rights.

The application to lift the sealing order was dismissed, but the existing order was varied to un-redact certain passages as detailed in Schedule A.

The appellant appealed his conviction for driving with a blood alcohol level over 80 mg, arguing the trial judge erred by not excluding breathalyzer results due to alleged breaches of his right to privacy with counsel (s. 10(b)) and arbitrary detention (s. 9) for being held in custody for 7.5 hours until sober.

The Crown cross-appealed the trial judge's imposition of a conditional discharge, which was below the mandatory minimum fine, granted as a remedy for the s. 9 breach.

The Superior Court dismissed the conviction appeal, finding no error in the trial judge's conclusion that the appellant did not actually believe his privacy was compromised.

The court also reversed the trial judge's finding of a s. 9 breach, holding that binding appellate authority establishes that detaining an intoxicated person for their own protection does not constitute arbitrary detention.

Consequently, the Crown's cross-appeal was allowed, the conditional discharge was set aside, and the mandatory minimum $1,000 fine was imposed.

The plaintiffs owned a property that was intentionally set on fire by a tenant, resulting in severe injuries to occupants.

The police and fire marshal investigated and concluded the property was an illegal rooming house with multiple Fire Code violations that contributed to the spread of the fire.

The plaintiffs were charged with arson by negligence under s. 436 of the Criminal Code, but were discharged at the preliminary inquiry.

They subsequently sued the investigating police officer, fire marshal investigators, and their municipal employers for malicious prosecution, abuse of process, negligent investigation, and Charter breaches.

The Superior Court dismissed the action in its entirety, finding no evidence of malice or bad faith, and concluding that the investigating officer had reasonable and probable grounds to lay the charges based on the evidence gathered.

The applicant sought an order discharging a transformer easement registered on its property in 1965 in favour of the Crown, which was ancillary to an approach lighting easement for the Windsor Airport.

The applicant argued the easement had been abandoned or had expired by its terms.

The court found that while abandonment was not proven, the easement had expired by its own terms because technological advances, including GPS navigation and self-contained transformers in modern approach lights, rendered the stand-alone transformer obsolete.

The court ordered the easement discharged.

The applicant and respondent disputed the valuation date for the equalization of their net family property.

The applicant argued the date of separation was July 15, 2014, while the respondent argued they began living separate and apart under the same roof in the summer of 2011.

The court applied the criteria for living separate and apart and found that the parties continued to cohabit, share meals, and engage in sexual relations until mid-2014.

The court determined the valuation date to be July 15, 2014, when the respondent definitively refused marriage counselling.

Following the dismissal of the plaintiff's action for well contamination, the court determined costs.

The plaintiff conceded liability for the defendant's partial indemnity costs but disputed liability for the third parties' costs.

Applying the principles from Guarantee Co. of North America, the court found it fair to order the plaintiff to pay the successful third parties' costs, as the main issue litigated was between the plaintiff and the third party who applied the biosolids.

The court fixed total costs at $70,000, apportioned among the defendant and two third parties, noting that the costs claimed were disproportionate to the modest nature of the case and criticizing the parties' failure to make reasonable settlement offers.

The accused applied for certiorari to quash his committal for trial on charges of discharging a firearm and aggravated assault.

The accused argued the preliminary inquiry judge failed to consider the whole of the evidence because the complainant recanted his identification of the accused during cross-examination.

The reviewing court dismissed the application, finding the preliminary inquiry judge properly considered all the evidence, including the complainant's adoption of his prior statement during examination in chief, and did not exceed his jurisdiction.

This endorsement addresses the costs of an unsuccessful motion brought by the plaintiffs to strike the defendants' jury notices.

The defendants were entirely successful in defending the motion and were presumptively entitled to costs under Rule 57.01.

The court considered the amount in dispute ($1,500,000), the importance of the issue (right to jury trial), and the moderate complexity of the motion.

The plaintiffs had rejected an offer to withdraw the motion without costs.

The court awarded partial indemnity costs to both sets of defendants, discounting the amounts to align with the costs outlines served prior to the motion and disallowing senior counsel's attendance for the doctor defendants as unnecessary.

The accused pleaded guilty to criminal negligence causing death after driving at extreme speed, consuming alcohol, and texting, resulting in a fatal collision with a motorcycle.

The court considered mitigating factors, including the early guilty plea, genuine remorse, youth, and lack of prior record, alongside aggravating factors such as the "trifecta" of dangerous driving (drinking, excessive speed, distracted driving) and the devastating impact on the victim's family.

Emphasizing general deterrence as the predominant sentencing objective, the court analogized distracted driving causing death to impaired driving causing death, highlighting the voluntary nature of the risks involved.

The accused was sentenced to 3.5 years imprisonment, a 69-month driving prohibition, and a 10-year weapons prohibition.

The plaintiff claimed her water well was contaminated by municipal sewage waste (biosolids) applied to her neighbor's farmland, alleging nuisance and negligence.

The defendant brought a third-party claim against the farm lessee and the biosolids applicator.

The court dismissed the plaintiff's action, finding that she failed to prove, on a balance of probabilities, that the biosolids application caused the well contamination.

Crucially, no E. coli., the primary indicator of sewage contamination, was detected in any water samples, despite the presence of other bacteria commonly found in the natural environment.

The court also dismissed the third-party action.