Thomas A. Heeney

The defendants brought a motion to compel the plaintiff to attend two Independent Medical Examinations (IMEs) with a neuropsychologist and an orthopaedic surgeon, arguing that the plaintiff's alleged injuries (physical and brain injury) required assessment by distinct specialists.

The plaintiff opposed, citing timeliness and the sufficiency of a single IME, and sought conditions on the examinations, including pre-approval of questionnaires and a prohibition on ghostwriting.

The court granted leave for the motion, finding a substantial change in circumstances and that it was in the interests of justice.

The court ordered the plaintiff to attend both IMEs, with the neuropsychological assessment contingent on the plaintiff first obtaining her own report.

The court rejected the plaintiff's demands regarding questionnaires and ghostwriting, affirming the statutory obligation to answer relevant questions and the expert's right to choose their method.

However, the court denied the defendants' request for reimbursement of a cancellation fee for a missed IME, as no prior court order or written consent for that specific examination existed.

This case involved a motion and cross-motion for interim custody of a child.

The applicant father sought sole or shared custody, while the respondent mother sought sole custody with supervised access for the father.

The court considered the father's extensive criminal record, history of drug involvement, and relapse, as well as his derogatory comments about the mother to the child.

Given the child had been in the mother's primary care for approximately five years, the court found it in the child's best interests to maintain the status quo.

The mother was awarded interim primary parenting time and sole decision-making responsibility.

The father was granted supervised parenting time on alternate weekends at his parents' residence, with his parents acting as supervisors to ensure the child's safety and prevent emotional harm.

Child support was also ordered based on the father's imputed income.

The respondent brought a motion to vary an interim access order, seeking reduced and supervised access for the applicant, citing an alleged sexual assault of a child by a neighbour and criminal charges laid against the applicant.

The applicant opposed the reduction and supervision, agreeing only to access at his mother's residence.

The court dismissed the respondent's motion, finding no basis to change the original order, and expressed skepticism regarding the respondent's allegations and the timing of the criminal charges.

The court found the applicant's report to CAS appropriate and maintained the original access schedule with minor modifications regarding exchange locations.

The accused was sentenced on two indictments for multiple Controlled Drugs and Substances Act (CDSA) and Criminal Code offences, including possession for the purpose of trafficking in heroin, cocaine, and methamphetamine, as well as firearms offences, proceeds of crime, and breaches of prohibition orders and recognizance.

The court considered aggravating factors such as a lengthy criminal record, quantities of drugs, and commission of offences while on bail.

Mitigating factors included a guilty plea for the second indictment and an apology.

The court applied the totality principle to arrive at a global sentence of 12 years, reduced by pre-sentence custody and a one-year credit for the harsher conditions of incarceration during the COVID-19 pandemic.

The accused was charged with multiple offences under the Controlled Drugs and Substances Act (CDSA) for possession of various drugs for the purpose of trafficking, and under the Criminal Code for impaired driving by drug and several firearm-related offences.

A voir dire was conducted to address Charter breaches (s. 8, 9, 10(b)) concerning the Standardized Field Sobriety Test (SFST) demand, arrest, drug evaluation, and vehicle inventory search.

The court found no Charter breaches, ruling the evidence admissible.

Subsequently, the accused was convicted on all CDSA counts and most Criminal Code counts, including impaired driving, possession of a restricted firearm, and various careless transportation and prohibited device charges.

Acquittals were entered for two ammunition-related counts due to the ammunition being non-functional.

This case addresses the outstanding issue of retroactive child support for the child Bryce, from the parties' separation in September 2013 to an interim order in April 2017.

The court first formalized consent orders for joint custody, primary residence with the applicant, respondent's access, ongoing child support of $540 per month, proportionate share of s. 7 expenses, and annual income disclosure.

The respondent's argument for shared custody (s. 9 of the Child Support Guidelines) was rejected as the child spent less than 40% of the time with him.

Applying the principles from S. (D.B.) v. G. (S.R.), the court found the respondent engaged in blameworthy conduct by shirking support obligations, the applicant gave effective notice, and the child suffered hardship.

While the applicant initially credited the respondent for car payments, this was reversed when the respondent claimed they were for daycare.

Considering fairness for unquantified payments in kind, the court fixed retroactive arrears at $15,000, ordering a lump sum payment within 60 days.

The court considered costs following a jury trial where the plaintiff was awarded damages and prejudgment interest.

The defendants argued they were the successful parties and sought costs under Rule 49.10, claiming their offer to settle (inclusive of an OHIP subrogated claim) was more favourable than the judgment.

The court found the defendants' offer uncertain regarding the OHIP claim, thus not triggering Rule 49.10.

While the plaintiff was the successful party in proving negligence and damages, there was divided success as the defendants prevailed on a major causation issue.

Considering the plaintiff's unreasonable settlement expectations and the divided success, the court ordered each party to bear their own costs.

The appellant appealed his conviction for operating a motor vehicle while impaired by alcohol, arguing that his s. 8 Charter rights were violated by an Approved Screening Device (ASD) demand.

The appellant contended that the investigating officer lacked reasonable suspicion because he also considered a medical condition as a possibility.

The court dismissed the appeal, affirming that "reasonable grounds to suspect" involves possibilities, not probabilities, and the existence of an alternate possibility does not negate a reasonable suspicion of alcohol.

The trial judge's reasons were found sufficient and correct, and claims of misapprehension of evidence were rejected.

This case involved a contested passing of accounts for an estate and under a Continuing Power of Attorney for Property.

The applicant, a sibling of the respondent, challenged several expenditures made by the respondent as executrix and attorney for their deceased father.

The court found that the respondent failed to rebut the presumption of undue influence regarding a $57,000 gift from the father, disallowed a $5,028.50 payment for a furnace and air conditioner, a $115 payment for a marriage license, and $3,362.64 in unexplained US dollar cash withdrawals.

The court also adjusted caregiving payments to another sibling, allowing $11,200 but requiring repayment of $6,400.

The respondent was ordered to repay a total of $71,906.14 to the estate.

This case addresses a property dispute between common-law spouses regarding the division of proceeds from the sale of their jointly-owned home.

The respondent sought reimbursement for his entire down payment, claiming unjust enrichment and constructive trust.

The court found a joint family venture and established unjust enrichment.

It determined that the increase in property value due to joint efforts should be split equally, while the initial contributions to the purchase price should be divided proportionately.

The court also found that an alleged verbal agreement for down payment reimbursement was unenforceable under the Family Law Act.

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.

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.

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.

The plaintiffs moved to strike jury notices filed by the defendants after the plaintiffs amended their Statement of Claim to double the damages sought from $750,000 to $1.5 million, prompted by new expert reports on future care costs.

The court applied the principles from Dow v. Ottawa Hospital-Civic Campus to determine if the amendment reopened pleadings for all purposes, including the timely filing of jury notices.

The court found that the amendments were necessary, implicitly contained new allegations regarding the plaintiff's limitations and future care needs, significantly changed the nature of the action, and necessitated further discoveries.

As the defendants filed the jury notices promptly and were not the party seeking the amendment, the court concluded that pleadings were reopened for all purposes, granting the defendants a statutory right to a jury trial.

The plaintiffs' motion to strike the jury notices was dismissed, as were their alternative requests for costs and further discoveries of the defendants.

The Superior Court of Justice heard appeals from a judgment ordering Crown wardship for the youngest child, T.L., with no parental access.

The father's appeal was dismissed due to his abysmal parenting record and lack of merit in his claims of bias or incompetent counsel.

The mother's appeal was allowed.

The court found the trial judge erred in law by failing to conduct a thorough "best interests of the child" analysis under s. 37(3) of the Child and Family Services Act, focusing too narrowly on the risk of inappropriate partners without balancing other factors like the child's bond with family.

Fresh evidence, demonstrating the mother's compliance with supervision conditions and positive parenting, further supported returning the child.

The Crown wardship order for T.L. was set aside, and the child was placed with the mother under a six-month supervision order with specific conditions.

The defendants brought a motion to dismiss the plaintiff's action for delay, which arose from a 2001 commercial transaction where the plaintiff sued the defendants for alleged negligence in securing deferred payments.

The court analyzed the periods of delay, finding that much of the delay was attributable to both parties or solely to the defendants.

The sole period of delay attributable to the plaintiff (16 months) was not deemed inordinate or inexcusable.

The defendants failed to demonstrate actual prejudice or rebut the presumption of prejudice, as any memory deterioration occurred before the relevant delay period, and the defendants themselves had not taken steps to preserve evidence.

The motion was dismissed, and costs were awarded to the plaintiff.

The Applicant brought a motion for a finding of contempt against the Respondent for unilaterally denying him access to their son.

The Respondent had denied access based on information from the Applicant's estranged ex-girlfriend concerning an alleged altercation and steroid use.

The court found the Respondent in contempt, ruling that the alleged incident did not constitute a "serious risk of harm" to the child, which is the only legal justification for breaching a court order.

The Applicant's original unsupervised access was reinstated, and makeup access was granted.

The Respondent's cross-motion for an interim variation of access and a s. 30 assessment was denied leave and adjourned to a Case Conference, as no urgency or clear case for relief was established.