Thomas A. Heeney

The tenants appealed an order of the Landlord and Tenant Board terminating their tenancy and evicting them for committing an illegal act (breach of zoning by-law).

The Divisional Court found the Board erred by reversing the onus of proof regarding the zoning issue when there was no evidence the cabin was in the prohibited zone.

Furthermore, the Board erred in law by failing to dismiss the eviction application under s. 83(3) of the Residential Tenancies Act.

The court found the eviction application was brought because the tenants had successfully enforced their legal rights to resist an illegal rent increase, which mandates refusal of the eviction regardless of the landlord's good or bad faith.

The appeal was allowed and the eviction application dismissed.

Multiple defendants brought motions to strike or dismiss claims arising from an alleged advance-fee loan fraud scheme.

The court held that claims against certain lawyer defendants were statute-barred under the Limitations Act, 2002 because the plaintiffs discovered the alleged wrongdoing in 2008 but commenced the action in 2012.

Another defendant successfully moved to dismiss the claim under Rule 57.03(2) for failure to pay outstanding court-ordered costs.

Additional defendants obtained an order striking the claim for fraud and deceit under Rule 21.01(1)(b) because the pleading failed to set out the necessary elements or particulars required by Rule 25.06.

The action against those moving defendants was dismissed.

A demolition contractor sought partial summary judgment in a construction lien action for unpaid invoices relating to demolition services, crushed concrete, and other project work.

The defendants opposed the motion and advanced set‑off claims alleging defective granular material and erroneous payment for environmental soil remediation.

The court applied the summary judgment framework from Hryniak v. Mauldin and concluded there was no genuine issue requiring trial regarding most of the indebtedness.

The evidence established that the crushed concrete met contractual specifications and that soil remediation constituted agreed extras billed at unit rates rather than part of the lump sum contract.

The set‑off claims lacked merit and partial summary judgment was granted for the majority of the amount claimed.

The applicant spouse brought a motion for interim spousal support retroactive to shortly after separation in the context of a divorce proceeding.

The respondent opposed entitlement and brought a cross-motion for summary judgment seeking an equalization payment calculation and transfer of the matrimonial home.

Applying s. 15.2 of the Divorce Act and the principles in Bracklow v. Bracklow, the court held the applicant had established a prima facie entitlement to interim spousal support on a non-compensatory basis given the disparity in income and the economic hardship following separation.

Using the Spousal Support Advisory Guidelines, the court ordered interim support within the mid-range and set a presumptive commencement date based on MacKinnon v. MacKinnon.

The respondent’s motion for summary judgment regarding equalization and transfer of the matrimonial home was dismissed due to genuine issues requiring a trial.

The accused appealed convictions for three counts of sexual assault under s. 271 of the Criminal Code.

The appeal alleged misapprehension of the evidence and inadequate reasons by the trial judge regarding the central issue of consent and the defence of honest but mistaken belief in consent.

The reviewing court found that the trial judge relied on a theory of incapacity to consent unsupported by the complainant’s own evidence, misinterpreted post‑offence conduct as circumstantial evidence of guilt, and failed to analyze significant contradictory evidence relevant to credibility and consent.

The reasons were also insufficient to permit meaningful appellate review because they summarily rejected the accused’s testimony without explanation.

The court concluded that these errors amounted to a miscarriage of justice.

The appellant appealed a conviction for possession of a Schedule I substance (oxycodone) under s. 4(1) of the Controlled Drugs and Substances Act, arguing that the verdict was unreasonable and unsupported by the evidence.

The Crown’s case at trial was entirely circumstantial and relied on the discovery of oxycodone pills packaged in a cylindrical cellophane container near the appellant’s feet in a courthouse holding cell, alongside a broken condom in a toilet where the appellant had been seated.

The appellant argued that the trial judge failed to consider exculpatory evidence and misapprehended the evidence regarding the drug packaging and condom.

The court held that the trial judge properly assessed the totality of the circumstantial evidence and reasonably rejected the defence’s alternative hypothesis that the drugs had been left earlier by another inmate.

The appellate judge concluded that the evidence supported the inference that the appellant had concealed the drugs in a body cavity and removed them in the cell.

The applicant sought directions in advance of a hearing under s. 20(4) of the Controlled Drugs and Substances Act for relief from forfeiture of residential property previously ordered forfeited in related criminal proceedings.

The applicant requested that the upcoming hearing be treated as de novo and that the record be purged of references to the earlier Ontario Court of Justice decision ordering forfeiture.

The court held that the s. 20 application was a fresh proceeding in which the judge would not be bound by earlier findings, particularly given the Crown’s concession not to rely on estoppel or res judicata.

However, the earlier ruling remained part of the court record and there was no legal basis to expunge it.

Allegations of reasonable apprehension of bias arising from unrelated comments by the earlier judge in a different case were rejected.

The moving parties sought leave to appeal an interlocutory order dismissing a motion related to a pending summary judgment motion in complex multi-party litigation.

The challenged order refused leave to file supplementary affidavit evidence after cross-examination, declined to order that the assigned motions judge not hear the summary judgment motion, and addressed issues regarding further cross-examination and privilege.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court held that the applicants failed to demonstrate either a conflicting decision or good reason to doubt the correctness of the order on matters of public importance.

The motions judge had properly applied established authorities governing supplementary affidavit evidence and the administration of motions under Rule 37.15.

The court concluded the issues raised concerned only the interests of the parties and did not justify appellate intervention.

The plaintiffs moved to set aside a registrar’s administrative dismissal of their action for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the Reid factors governing motions to set aside dismissal orders, including the explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendant.

The court found that the plaintiffs had provided no satisfactory explanation for several years of inactivity and failed to demonstrate that they always intended to advance the action toward trial.

Although actual prejudice to the defendant was not conclusively established, the court held that the unexplained delay and failure to comply with a status hearing timetable justified maintaining the dismissal.

The motion to set aside the administrative dismissal was therefore denied.

The defendant insurer brought a motion for summary judgment arguing that the plaintiffs failed to meet the corroboration requirement under the OPCF 44R Family Protection Coverage Endorsement for accidents involving unidentified vehicles.

The plaintiffs alleged the driver was forced off the road by a red pickup truck that was never identified, relying on tire marks and expert reconstruction evidence as physical corroboration.

The court held that “physical evidence” under the endorsement does not need to originate from the unidentified vehicle itself, provided it indicates the involvement of another vehicle.

Tire marks consistent with evasive action could constitute corroborative physical evidence.

Given conflicting expert opinions regarding accident reconstruction, the court found a genuine issue requiring a trial and declined to resolve credibility issues on summary judgment.

The appellant appealed his convictions for having care and control of a motor vehicle while impaired and failing to comply with a breath demand.

He argued the trial judge erred in finding the arresting officer had objectively reasonable grounds to make the breath demand.

The Superior Court of Justice dismissed the appeal, finding that the constellation of facts—including the appellant sleeping in a running car at 3 a.m., the smell of alcohol, a partially consumed bottle of vodka, fumbling with his wallet, and stumbling—objectively supported the officer's subjective belief of impairment.

A secondary ground regarding re-examination of the officer was also dismissed.

The defendants brought a motion to dismiss the plaintiff's action for delay.

The plaintiff claimed an interest in a farm property based on an alleged 1990 oral agreement.

The action was commenced in 2007, but the plaintiff took no steps to advance the litigation after discoveries in 2009.

The court found the delay to be inordinate and inexcusable, rejecting the plaintiff's uncorroborated claims of illness.

The court also found actual prejudice to the defendants, as one defendant had died and the other had developed dementia, making a fair trial impossible.

The motion was granted and the action was dismissed.

The defendants in a personal injury action brought a motion under Rule 30.06 to compel the plaintiff to produce all post-accident vacation photographs and all content on the private portion of her Facebook account.

The plaintiff claimed loss of enjoyment of life.

The court reviewed the photographs and found they only showed the plaintiff sightseeing, which she admitted she could do, and thus were not relevant to her physical limitations.

The court also held that the request for the entire private Facebook account was a fishing expedition and shockingly intrusive, akin to asking for all personal letters.

The motion was dismissed.

A municipality brought a motion seeking directions regarding service of a notice of application for a declaration under the Beds of Navigable Waters Act concerning whether a stream crossing the respondents’ property was navigable at the time of the original Crown grant in 1831.

The respondents asserted that the stream created a natural severance of their land and that the stream bed was unpatented Crown land.

The court held that the only issue in the application was whether the waterway was navigable at the time of the Crown grant, which affected only the parties to the proceeding.

Upstream and downstream landowners would need to litigate the issue independently based on their own Crown grants.

Accordingly, no additional parties were required to be served, and directions were provided regarding the order of proof at trial.

A residual beneficiary brought a motion seeking a ruling that the drafting solicitor’s contemporaneous notes regarding the testator’s instructions were inadmissible in an application to interpret a will.

The dispute concerned whether the residue should be divided into three shares, with one share divided among four children, or into six equal shares among six individuals.

The court held that the language of the will suggested an equal division among six beneficiaries but also found that, if the clause were considered ambiguous as argued by the moving party, extrinsic evidence could be admitted to clarify the testator’s intention.

Applying appellate authority recognizing a trend toward admitting surrounding circumstances in will interpretation, the court ruled that the solicitor’s notes were admissible as extrinsic evidence.

Costs were ordered in the cause.

The appellant appealed a sentence imposed following a guilty plea to criminal harassment under s. 264(2)(b) of the Criminal Code.

The sentencing judge imposed a suspended sentence with 12 months’ probation and declined to grant a conditional discharge.

On appeal, the court found the sentencing judge misdirected himself by requiring that a discharge be "in the public interest" rather than "not contrary to the public interest" under s. 730(1), and failed to consider the role of general deterrence in the analysis.

Given the relatively minor nature of the conduct and the offender’s lack of prior record, the court concluded that a conviction was unnecessary to achieve deterrence.

The conviction was set aside and replaced with a conditional discharge with the same probation terms.

The father brought a motion to change a 2003 custody order to change the primary residence of his 13-year-old twin boys from the mother's home to his own.

The mother opposed the motion, citing concerns about the father's parenting ability, alcohol consumption, and past conduct.

The Office of the Children's Lawyer conducted an assessment and recommended the change, noting the boys' strong, independent, and genuine desire to live with their father.

The court found a material change in circumstances and held that respecting the mature children's wishes was in their best interests.

Joint custody was ordered, with primary residence transferred to the father.

The appellant appealed his conviction for operating a motor vehicle with a blood alcohol level over 80 mg.

The sole issue was whether the trial judge erred in finding that the police officer had objectively reasonable grounds to support a breath demand under s. 254(3) of the Criminal Code.

The Superior Court of Justice reviewed the trial judge's findings of fact, which included erratic driving, a strong smell of alcohol, glassy eyes, and an admission of drinking.

The court held that these facts were sufficient to objectively support the officer's subjective belief of impairment, and dismissed the appeal.

The applicant wife brought a motion for interim exclusive possession of the matrimonial home, interim custody, and child and spousal support.

The respondent husband brought a cross-motion for similar relief but ultimately argued for the status quo, as the parties had been living separate and apart under the same roof for over a year.

The court applied section 24 of the Family Law Act and found that the best interests of the children were being met by the status quo, as there was little evidence of conflict affecting them.

Both the motion and cross-motion for exclusive possession were dismissed, rendering interim custody and support orders unnecessary.

The appellant appealed a decision of the Ontario Court of Justice that varied a prior custody order and granted the respondent sole custody of the parties’ children.

The appeal court held that the trial judge erred in law by varying the custody order despite expressly finding that no material change in circumstances had been proven, contrary to the governing test in Gordon v. Goertz.

The court further found that the trial judge compromised the appearance of judicial impartiality by conducting extensive cross‑examination of a key witness and refusing to permit counsel to ask follow‑up questions, resulting in procedural unfairness.

Because these errors deprived the court of jurisdiction and undermined the fairness of the proceeding, the variation order could not stand.

The appeal was allowed, the impugned order quashed, and a new trial ordered, with the prior custody arrangement reinstated in the interim.