Thomas A. Heeney

The accused brought a motion seeking leave to sit at counsel table rather than in the prisoner’s dock during a jury trial on serious criminal charges.

The court considered whether seating location affected the accused’s fair trial rights and the need for courtroom security.

Evidence from courthouse security indicated the case carried heightened security risks due to its high-profile and emotionally charged nature.

The court held that seating the accused in the dock would better ensure security and would not prejudice the accused’s fair trial rights, particularly with appropriate jury instructions.

The motion was dismissed and the accused was directed to remain seated in the prisoner’s dock for the duration of the trial.

The court determined the admissibility of electronic evidence in a criminal prosecution involving serious violent offences.

Following an earlier ruling excluding evidence obtained from searches of the accused’s laptop and Blackberry under s. 24(2) of the Charter, most electronic evidence became inadmissible.

The remaining issue concerned the admissibility of a Facebook profile message obtained through a Mutual Legal Assistance Treaty request to Facebook’s headquarters in the United States.

The accused argued the statement lacked contextual meaning and relied on jurisprudence excluding ambiguous overheard statements.

The court distinguished those authorities, finding the social media post represented a complete statement intentionally communicated by the accused on his profile and was therefore highly probative with no unfair prejudice.

The applicant, charged with the abduction and murder of an eight-year-old child, brought a pre-trial Charter application alleging unreasonable search and seizure regarding several search warrants.

The court upheld the validity of the warrants and the search of the applicant's vehicle and residence, allowing the Crown to admit physical evidence.

However, the court found that the warrantless forensic search of the applicant's laptop and cell phone, which had been seized from the vehicle, violated s. 8 of the Charter.

Applying the Grant framework, the court excluded the digital evidence under s. 24(2), noting the high privacy interest in personal computers and the marginal probative value of the evidence sought to be admitted.

The appellants were entirely successful on their appeal and sought costs.

The court awarded the appellants costs fixed at $1,000 for the motion for leave to appeal and $4,500 for the appeal, noting that the outcome was more favourable than an offer to settle made to them by the respondents.

The court found it was unreasonable for the respondents to oppose the appeal given the lack of reasonable prospect of success.

The court issued an amendment to its original judgment released on July 28, 2011, to correct an error regarding the place where the appeal was heard.

The original judgment incorrectly stated the appeal was heard in London, and was amended to reflect that it was heard in Hamilton.

The appellants appealed an interlocutory order granting the respondents unfettered access to a residential property to retrieve personal belongings.

The motions judge had noted the appellants in default and refused to allow their counsel to make submissions on a motion to set aside the default or on the merits of the respondents' motion.

The Divisional Court allowed the appeal and set aside the order, finding that the motions judge erred in law and denied procedural fairness by refusing to hear counsel, misinterpreting Rule 19.02, granting relief that far exceeded the notice of motion, and failing to provide reasons.

The appellant appealed a motion judge's decision refusing to order the respondent to pay a proportionate share of their daughter's tutoring expenses.

The Divisional Court found that the motion judge erred in law by failing to properly apply the definition of 'extraordinary expenses' under s. 7(1.1) of the Child Support Guidelines, specifically by not considering the appellant's income and ability to cover the expense.

The appeal was allowed and the matter remitted for a rehearing.

The plaintiff brought a motion for leave to appeal a Small Claims Court decision where it had claimed $7,551.12 but was only awarded $1,500.

The issue was whether the plaintiff had an automatic right of appeal under section 31 of the Courts of Justice Act, given that the judgment amount was below the $2,500 threshold prescribed by regulation.

The Divisional Court held that the right of appeal is determined by the amount claimed in the action, not the amount recovered.

Finding a conflict between the statute and the regulation, the court ruled the statute prevails, confirming the plaintiff's right of appeal without leave.

The appellant appealed a decision of the Criminal Injuries Compensation Board denying him compensation for injuries sustained during an assault.

The Board found the appellant contributed to his injuries by participating in illegal drug-related activities.

On appeal, the appellant argued the Board breached procedural fairness by admitting hearsay evidence from a police officer without adequate prior notice.

The Divisional Court dismissed the appeal, finding the Board is permitted to admit hearsay evidence and the appellant received sufficient notice of the allegations to satisfy the Statutory Powers Procedure Act.

The appellant brought a motion to adjourn its appeal of a decision by the Board of the Alcohol and Gaming Commission of Ontario.

The appellant sought the adjournment pending the outcome of an unrelated judicial review application by another licensee challenging the Board's institutional impartiality.

The Divisional Court dismissed the motion, finding that an adjournment could prejudice the respondent and delay the resolution of four-year-old allegations.

Crucially, the court noted that the appellant had never raised the issue of bias in its own case and declined to amend its Notice of Appeal to do so.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario convicting it of infractions under the Liquor Licence Act, including permitting drunkenness, selling liquor to an intoxicated person, and overcrowding a patio.

The appellant argued there was a breach of natural justice due to delayed notice, that the Board misapprehended evidence, and that the defence of necessity applied to the overcrowding.

The Divisional Court dismissed the appeal, finding no unreasonable delay in notice, no palpable and overriding error in the Board's assessment of the evidence, and that the defence of necessity could not be raised for the first time on appeal.

The parents appealed a summary judgment order making their child a Crown ward without access for the purpose of adoption.

The child had been in care for her entire life (23 months) and the statutory time limit for temporary wardship had lapsed.

The Divisional Court upheld the motion judge's finding that there was no genuine issue for trial regarding the child's best interests, noting the father's ongoing substance abuse and criminal issues, and the mother's lack of insight into the risk he posed.

The appeal was dismissed.

The appellant mother sued her son and daughter-in-law for repayment of a $52,000 loan, which she claimed was payable upon her turning 65 or retiring.

The respondents argued the money was a gift or, alternatively, a demand loan that was statute-barred.

The motion judge granted summary judgment dismissing the action.

On appeal, the Divisional Court found the motion judge made palpable and overriding errors by weighing evidence, evaluating credibility, and drawing adverse inferences without considering whether a trial was necessary in the interests of justice.

The appeal was allowed and the summary judgment set aside.

The defendants appealed an interlocutory order requiring them to post $100,000 in security for costs or have their Statement of Defence and Counterclaim struck.

The primary issue was whether Rule 56.01(1)(c) conflicts with section 12 of the Libel and Slander Act.

The Divisional Court found no conflict, as the rule and the statute rely on different criteria.

However, the court varied the order, holding that a party should not be required to post security merely to defend itself.

The order was amended so that only the defendants' counterclaim would be struck if security was not posted.

The defendant appealed an order dismissing its motion to declare the plaintiff's construction liens expired.

The motion judge had ruled that the plaintiff's Reply and the defendant's Amended Statement of Defence were nullities, and that pleadings were closed, allowing the plaintiff to set the action down for trial within the statutory deadline.

The Divisional Court dismissed the appeal for lack of jurisdiction, finding that the motion judge's orders did not finally determine any substantive rights and were therefore interlocutory.

Under section 71(3)(b) of the Construction Lien Act, no appeal lies from an interlocutory order.

The applicant school board sought judicial review of an arbitrator's award which found that certain technology integrators, hired as independent contractors through a third party, were actually employees of the board and 'teachers' within the respondent union's bargaining unit.

The Divisional Court held that the standard of review was reasonableness.

The court found the arbitrator's decision unreasonable because he conflated the workers' desire to become employees with a legal intention to form an employment relationship, and his analysis of whether they were teachers was logically flawed.

The application for judicial review was allowed, the award quashed, and the matter remitted for rehearing.

The plaintiff brought a defamation action against the administrators of a message board and several anonymous John Doe defendants.

The plaintiff successfully moved for an order requiring the administrators to disclose the e-mail and IP addresses of the anonymous defendants.

The administrators appealed.

The Divisional Court allowed the appeal, holding that where a disclosure order engages Charter values such as freedom of expression and privacy, the plaintiff must establish a prima facie case of defamation and the court must balance the public interest in disclosure against these Charter rights.

The appellant appealed a decision finding that an Agreement to Lease was a valid and binding contract and that he was in breach for failing to commence tenant improvements.

The appellant argued that the respondent repudiated the agreement by insisting on a draft lease with terms significantly different from the Agreement to Lease.

The Divisional Court dismissed the appeal, finding that the appellant failed to establish that the disputed terms in the draft lease were incompatible with the financial principles of the Agreement to Lease, and therefore the agreement remained enforceable when the respondent terminated it due to the appellant's default.

The appellants appealed a decision of the Licence Appeal Tribunal regarding the interpretation of s. 28(1) of Regulation 470 to the Funeral Directors and Establishments Act, which requires a funeral establishment's corporate name to be 'clearly disclosed to the public' on business signs.

The Tribunal had found that a large discrepancy in font size between the business name and the corporate name meant the corporate name was not clearly disclosed.

The Divisional Court allowed the appeal, holding that the Tribunal erred in law by focusing on relative font size rather than whether the corporate name was readable from the vantage point from which the sign was intended to be read.

The matter was remitted to the Complaints Committee for reconsideration.

The appellant tenants appealed a decision of the Landlord and Tenant Board.

The Divisional Court found that the Board member erred in law by concluding he lacked jurisdiction to award a rent abatement for a cockroach infestation, despite the tenants not specifically requesting it in their original materials.

The court also found the member erred by basing the $1,000 fumigation compensation award on a finding unsupported by evidence.

The appeal was allowed and the matter remitted to the Board to determine the appropriate rent abatement and reasonable fumigation compensation.