Timothy D. Ray

Following a trial in which the applicant’s challenge to a will was dismissed, the successful party sought costs.

The unsuccessful party argued that the challenge had been reasonable and that costs should be paid out of the estate.

The court found no suspicious circumstances surrounding the will and no conduct by the successful party that would justify departing from the usual rule that costs follow the event.

Applying Rule 57 of the Rules of Civil Procedure, the court awarded costs to the successful party on a partial indemnity basis and declined to order that costs be paid from the estate.

Costs were fixed inclusive of disbursements and HST.

The defendants brought a motion for summary judgment seeking dismissal of a negligence and breach of fiduciary duty claim arising from unclaimed bank draft proceeds that had been transferred to the Bank of Canada pursuant to the Bank Act after remaining unclaimed for ten years.

The plaintiff had recovered the proceeds from the Bank of Canada but claimed damages for lost investment opportunities and expenses incurred in proving entitlement to the funds.

The court held that s. 438(2) of the Bank Act releases a bank from all liability “in respect of” an instrument once the unclaimed proceeds are transferred to the Bank of Canada.

The plaintiff’s claims for costs incurred in recovering the funds and alleged lost interest arose from the bank draft itself and therefore fell within the statutory release.

Summary judgment was granted dismissing the action.

The appellant appealed a conviction for breach of probation under s. 733.1 of the Criminal Code for failing to attend and actively participate in counselling as directed by a probation officer.

The appellant argued that the evidence did not establish the requisite mens rea because he never expressly refused to attend counselling and was advised he could apply to vary the probation condition.

The court reviewed the standard of appellate intervention and found the trial judge’s findings were supported by the evidence.

The trial judge reasonably inferred intent from the appellant’s repeated failure to take any steps to attend the required program despite multiple reminders and written instructions.

The conviction was upheld.

The two defendants, aged 18 at the time, were convicted of robbing a 15-year-old student of his cell phone at their high school.

The Crown sought 2 to 4 months in jail followed by 18 months probation, while the defence sought probation.

The court considered the defendants' youth, first-time offender status, and post-offence conduct.

Emphasizing specific deterrence and rehabilitation, the court sentenced both defendants to three years of probation with strict conditions, including restitution of $350 each, a 10-year weapons prohibition, and a DNA order.

The accused brought a motion seeking a change of venue from Pembroke to Ottawa for a jury trial on multiple sexual assault-related charges.

The accused argued that local media coverage in the Pembroke/Petawawa area created a risk that an impartial jury could not be selected and that daily transportation from a distant detention facility would cause hardship and impair trial fairness.

The court held that the media coverage cited by the accused was routine reporting that did not demonstrate prejudicial publicity sufficient to prevent the selection of an impartial jury, particularly given the availability of challenge for cause during jury selection.

With respect to the transportation hardship, the court found that although the conditions described were difficult, they reflected systemic logistical issues and could potentially be mitigated through judicial orders addressing detention conditions during trial.

The accused failed to meet the burden of showing that a change of venue was necessary in the interests of justice.

The accused applied under s. 591(3)(a) of the Criminal Code to sever counts in an indictment relating to two alleged sexual assaults occurring two days apart at the same military base.

The defence argued that trying the counts together would cause reasoning prejudice and interfere with the accused’s intention to testify on one incident but not the other.

The court considered factors including prejudice, factual nexus, complexity of the evidence, multiplicity of proceedings, delay, and the possible admissibility of similar fact evidence.

Although some risk of reasoning prejudice existed, the court held that appropriate jury instructions could mitigate it and that the interests of justice favoured a single trial.

The accused failed to establish on a balance of probabilities that severance was required.

A will challenge concerning testamentary capacity and knowledge and approval of a will executed shortly before the testator’s death.

The applicant nephew argued the testator lacked capacity when she executed a will that excluded him and left the estate to another nephew and his spouse.

The court reviewed medical evidence, the solicitor’s testimony regarding the execution of the will, and the surrounding circumstances, including alleged suspicious circumstances due to the testator’s declining health and the significant change from a prior will.

Applying the principles in Vout v. Hay and Scott v. Cousins, the court held that the propounder established on a balance of probabilities that the testator had testamentary capacity and understood and approved the contents of the will.

The impugned will was therefore upheld.

The court determined the costs payable following a motion arising after an earlier order directing the sale of property.

The responding party sought partial indemnity costs of approximately $4,282 for the subsequent motion, while the opposing party argued that only $1,000 was appropriate.

The court held that the conduct of the opposing party after the initial order made the second motion necessary and that the moving party was entitled to costs.

However, the court found the claimed amount excessive for a straightforward matter and assessed partial indemnity costs at approximately 55% of reasonable actual costs.

Costs were fixed at $1,500 inclusive of disbursements and HST.

The parties disputed the sale of jointly owned property following a prior court endorsement directing that the property be listed for sale and allowing the respondent to make a commission‑free offer.

Instead of listing the property, the applicant engaged in a series of counteroffers with the respondent and ultimately attempted to accept her own higher bid.

The court found that the applicant disregarded the previously ordered sale procedure and failed to approach the court with clean hands.

The court held that the respondent’s earlier offer constituted the “first reasonable offer” contemplated by the prior endorsement and ordered that the transaction proceed on that basis, subject to closing and accounting arrangements.

During a jury trial for criminal negligence causing bodily harm and failing to stop, the defence brought a motion requesting that the jury be permitted to conduct a view of the scene depicted in surveillance footage.

Both parties agreed that the wide-angle lens used in the video distorted distances and perspectives, potentially affecting the jury’s understanding of the evidence.

The court considered the authority under s. 652 of the Criminal Code and determined that a view may be ordered where it assists the jury in understanding the evidence, though it is not itself evidence.

The judge concluded that a view of the gas bar where the incident occurred would assist the jury and ordered it with detailed logistical and non‑communication safeguards.

A request to include a nearby gas station related to a different offence was denied.

Sentencing for historical sexual offences involving multiple child victims.

The accused pleaded guilty to four counts of indecent assault and one count of gross indecency committed against five young complainants over a period spanning several years when the complainants were between six and ten years old.

The court emphasized denunciation and general deterrence as primary sentencing objectives for sexual offences against children, recognizing the significant long‑term harm to victims and abuse of trust.

Despite the typical sentencing range of 30 to 36 months for such offences, the court considered unusual mitigating factors including the offender’s advanced age, failing health, lack of prior sexual criminal record, and the passage of approximately five decades since the offences.

A reduced custodial sentence was imposed with probation conditions restricting contact with the victims.

The plaintiff, a medical secretary, sued her former employer, a physician, for wrongful dismissal after 12.5 years of service.

The defendant claimed he terminated her for cause due to performance issues and her refusal to accept a significant salary reduction.

The court found insufficient evidence to support termination for cause, noting the defendant's complaints were largely related to an alleged overpayment error by his accountant.

The court awarded the plaintiff a nine-month notice period, amounting to $32,676.79, finding she had adequately mitigated her damages by retraining as a real estate agent.

During an urgent conference, the respondent sought an adjournment of an upcoming motion and argued that the application should be converted into an action requiring pleadings and discoveries.

The court declined to adjourn the motion, noting the respondent had previously agreed to the motion date and had failed to comply with earlier court-ordered timelines or deliver responding materials.

The court held that any request to convert the proceeding into an action could be brought by way of a motion for directions but should not delay the scheduled motion hearing.

The court also confirmed that the applicants were entitled to examine a non-party under oath in relation to the pending motion.

The applicant sought an order for partition and sale of a jointly owned residential property following the breakdown of the parties’ relationship.

Although the respondent preferred to purchase the applicant’s interest, prior court-imposed conditions had not been satisfied and the matter had been delayed.

The court ordered that the property be immediately listed for sale, while permitting the respondent to submit an offer to purchase that would avoid realtor commission if accepted.

Issues relating to accounting for property-related expenses and final distribution adjustments were adjourned pending further determination.

Costs were awarded to the applicant.

The accused pleaded guilty to manslaughter arising from the fatal stabbing of his common-law partner during an argument.

After inflicting a deep abdominal wound with a kitchen knife, the accused failed to obtain medical assistance for approximately 24 hours despite clear signs of serious injury, prioritizing concerns about breaching probation conditions over the victim’s welfare.

The court found beyond a reasonable doubt that the stabbing involved moderate to severe force and that the accused knowingly chose not to seek medical attention despite the obvious need.

Aggravating factors included domestic violence, the use of a weapon, extensive prior criminal history including prior assaults on partners, and multiple breaches of probation conditions at the time of the offence.

The guilty plea was treated as a mitigating factor.

A sentence of 12 years’ imprisonment for manslaughter was imposed, with a concurrent 12‑month sentence for breach of probation and credit for pre‑sentence custody.

The defendants by counterclaim brought a motion for security for costs against foreign corporate and individual plaintiffs by counterclaim under Rule 56 of the Rules of Civil Procedure.

The responding parties cross‑moved for security for costs against the original plaintiff, arguing that it lacked sufficient assets in Ontario to satisfy a potential costs order.

The court held that although the foreign plaintiffs had no assets in Ontario and therefore technically met the threshold for security, their counterclaim largely mirrored the factual matrix of their defence.

Exercising its discretion, the court found that ordering security would effectively require a defendant to post security merely to defend the action.

The cross‑motion was also refused because granting security would effectively fund the counterclaim of a non‑resident party with no assets in Ontario.

Both motions were dismissed and no order for costs was made.

The applicant, self-represented, sought public funding for the cost of trial transcripts required to perfect a pending summary conviction appeal from convictions for assault.

The court considered the principles analogous to Criminal Code s. 684 governing publicly funded assistance for appeals, including whether the interests of justice required funding and whether the applicant had insufficient means.

The court found the evidentiary record did not establish financial inability, as the applicant provided no detailed evidence of assets or liabilities.

The court also concluded the appeal lacked merit and that the interests of justice did not require public funding, particularly given the conditional discharge sentence and the absence of liberty interests at stake.

The application for transcript funding was dismissed.

Following a criminal trial for robbery arising from a school incident, identity was the only live issue.

The court considered eyewitness evidence from the complainant and a corroborating student witness, evidence from school officials, and the photo line-up evidence.

Applying the reasonable doubt standard and the framework in R v W (D), the court rejected the denial evidence and found the identification evidence reliable.

The court held that the Crown proved all elements of robbery beyond a reasonable doubt and convicted both defendants.

The Registrar appealed a decision of the Licence Appeal Tribunal which found that a real estate agent's past criminal conduct (assault and breach of a conditional sentence) did not meet the statutory threshold for revoking his registration, but warranted the imposition of conditions.

The Divisional Court dismissed the appeal, holding that the tribunal has jurisdiction under the Real Estate and Business Brokers Act, 2002 to impose conditions on a registrant even in the absence of a finding that the past conduct threshold for revocation was met.

The court also found that the tribunal's conclusion that the threshold was not met was reasonable.

The applicant union brought an application for judicial review of an arbitration award that denied a grievance claiming a retired employee was entitled to three additional weeks of vacation pay.

The grievance turned on the interpretation of a Clarity Note in the collective agreement.

The Divisional Court dismissed the application, finding that the arbitrator's interpretation of the Clarity Note and the collective agreement was reasonable and met the Dunsmuir requirements of transparency, intelligibility, and justification.