G. Toscano Roccamo

The applicant sought a stay of proceedings or a stay of dangerous/long-term offender proceedings, alleging that the Ottawa Police Service's inadequate investigation, failure to gather and preserve evidence, and alleged destruction of evidence violated his s. 7 (right to full answer and defence, fair trial) and s. 11(b) (right to trial without delay) Charter rights.

The court dismissed the application, finding no Charter breach, as the applicant had access to other probative evidence for his defence, and the alleged police misconduct did not meet the high threshold for an abuse of process or actual prejudice to a fair trial.

The court also declined to conduct a s. 11(b) analysis without proper submissions on delay components.

The Crown and co-defendants moved to strike a crossclaim filed by a former correctional officer, John Barbro, which included claims for malicious prosecution, defamation, and bad faith wrongful dismissal.

The moving parties argued that the essential character of these claims arose from a collective agreement and thus fell within the exclusive jurisdiction of the Grievance Settlement Board (GSB).

The court applied the Weber framework, finding that the dispute's essential character was workplace-related, stemming from an incident, subsequent investigation, and disciplinary process governed by the collective agreement.

The court rejected arguments for concurrent jurisdiction based on the MCSA and PACA, and declined to exercise residual discretion.

The motion to strike the crossclaim (except for contribution and indemnity) was granted, with leave for Mr. Barbro to file an amended statement of defence and crossclaim.

This is a costs endorsement following a successful summary judgment motion brought by the defendant, Tanya Lemcke, on the grounds that the plaintiffs' action for damages was prescribed by the statutory limitation period.

The defendant claimed partial indemnity costs, which the plaintiffs opposed, raising concerns about the amount, the timing of the summary judgment motion, and costs already received.

The court applied Rule 57.01(1) factors, acknowledging the defendant's success but reducing the claimed fees due to unnecessarily incurred mediation costs.

Disbursements were awarded in full.

The Starcall Companies brought a motion for summary judgment to recover monies paid under protest to Bell Mobility, disputing an alleged debt and arguing it was statute-barred.

Bell Mobility counter-sought summary judgment.

The court found Bell Mobility failed to prove the debt was outstanding and that, even if it existed, it was not a demand obligation.

Consequently, the Starcall Companies' motion for summary judgment was granted, and Bell Mobility's claim was dismissed.

The defendant Tanya Lemcke brought a motion for summary judgment to dismiss the action against her, arguing that the plaintiffs' claim was statute-barred by the two-year limitation period.

The plaintiffs, Louis Sirois and Chandra Martens, alleged that Ms. Lemcke, their real estate agent, failed to disclose plans for a solar farm on an adjacent property, which they became aware of in early 2010.

The court found that the plaintiffs discovered their cause of action by February 2010, as they knew they had suffered damage, even if the full extent was unknown.

Consequently, the two-year limitation period expired in February 2012, prior to Ms. Lemcke being added as a defendant in November 2013.

The motion for summary judgment was granted, dismissing the action against Ms. Lemcke.

The accused was charged with aggravated assault and assault with a weapon.

The central issue was the reliability and credibility of the complainant's identification evidence, which was potentially tainted by alcohol consumption, examination of Facebook photos of the accused, and subsequent encounters.

The court found the complainant's testimony to be inconsistent and unreliable, noting his admitted lies to police and perjury at the preliminary inquiry.

Due to these inconsistencies and lack of corroborating evidence, the court could not be satisfied beyond a reasonable doubt of the accused's identity as the stabber.

The accused was acquitted of all charges.

The Father (applicant) sought costs of $65,000 after successfully obtaining sole custody in a motion to change.

The Mother (respondent) argued for no costs due to her modest means and the resolution of some issues prior to trial.

The court, applying Rule 24(11) of the Family Law Rules and s. 131(1) of the Courts of Justice Act, found the Father presumptively entitled to costs but reduced the amount to $30,000, payable over six years, considering the parties' compromises, the Mother's financial situation, and the importance but not excessive complexity of the issues.

The court declined to deem the costs as additional support enforceable by the Family Responsibility Office.

The Father brought a motion to change a divorce order, seeking sole custody and a variation of child support, citing the Mother's persistent unfounded allegations of abuse, non-compliance with court orders, and interference with the children's education and health.

The Mother sought to maintain joint custody or obtain sole custody for herself.

The court found a material change in circumstances due to the deleterious effects of parental conflict on the children, the Mother's persistent unfounded allegations, and her lack of insight into the children's needs.

Sole custody and primary residence were granted to the Father, with weekly access to the Mother.

In the context of a motion to change custody and access, the respondent requested an order under section 137(2) of the Courts of Justice Act to publish the court's forthcoming decision using initials for the parties, children, and witnesses.

The applicant consented to the request.

The court noted the high-conflict nature of the proceedings and the vulnerability of the children, who were already exhibiting signs of emotional distress.

The court granted the order, finding it necessary to protect the children from future emotional harm and to preserve their privacy and dignity, without stifling public comment on the issues.

Mohamad Sleiman ("Moe") pleaded guilty to sexual interference and sexual assault of a 15-year-old complainant (T.P.) due to her age, and two probation breaches.

He pleaded not guilty to forcible confinement, threat to cause death, and threat to cause bodily harm to T.P.'s family.

A Gardiner hearing was also held to determine aggravating facts for sentencing on the guilty pleas.

The court assessed T.P.'s credibility, which was central to the Crown's case, and found her evidence to be thoroughly undermined by contradictions, implausibilities, and selective memory, particularly when confronted with other evidence like video surveillance and text messages.

The testimony of other witnesses (S.M.D. and S.S.) further contradicted T.P.'s account of her relationship with Moe and the events of the incident.

The court concluded that the Crown failed to prove beyond a reasonable doubt that T.P. was forcibly confined, threatened, or that the sexual intercourse was involuntary.

The applicant, Best Theratronics Limited, sought leave to appeal to the Divisional Court from an interlocutory order denying an injunction that would compel the respondent, Canadian Nuclear Laboratories Limited (CNL), to continue supplying irradiated cobalt.

The motion judge had applied the three-part test for injunctions, finding a serious issue to be tried but concluding that irreparable harm was not substantiated and the balance of convenience favoured CNL due to the applicant's substantial payment arrears.

The court, applying Rule 62.02(4) of the Rules of Civil Procedure, found no conflicting decisions on the issues pertaining to injunctions in supply agreements and no good reason to doubt the correctness of the motion judge's discretionary order.

The court also noted the applicant's failure to expedite the pending arbitration.

Consequently, the motion for leave to appeal was dismissed.

Following a jury verdict in a personal injury action arising from a motor vehicle accident, the court addressed supplementary issues concerning assignment of future Statutory Accident Benefits and the award of costs.

The defendants sought broad assignment of accident benefits to avoid alleged double recovery, arguing that the value of future benefits exceeded the verdict when compared with their settlement offer.

The court held that the defendants failed to meet the strict evidentiary burden required under the Insurance Act because the jury’s global awards did not specify the overlap between tort damages and accident benefits.

The court limited the assignment of income replacement benefits to a defined period and accepted assignments for certain other benefits where not disputed.

Costs were awarded to the plaintiff on a partial indemnity basis, fixed at $350,000 plus additional amounts for submissions and disbursements.

The accused was charged with assault with a weapon causing bodily harm, unlawful entry, assault, and uttering threats arising from incidents in a former intimate relationship.

The Crown alleged a pattern of domestic violence culminating in an assault that caused dental injuries and threats to kill.

The defence argued the complainant fabricated the allegations to justify leaving the jurisdiction with the parties’ child and to counter family court proceedings concerning custody.

After assessing credibility under the framework from R. v. W. (D.) and considering inconsistencies in the complainant’s evidence and corroborating evidence, the court found the testimony unreliable and raised reasonable doubt.

The Crown failed to prove the charges beyond a reasonable doubt.

The applicant sought retroactive and ongoing spousal support pursuant to the Spousal Support Advisory Guidelines despite a separation agreement that effectively eliminated further support through a net disposable income formula tied to child support payments.

Applying the two‑stage test in Miglin v. Miglin, the court examined both the circumstances surrounding the agreement’s formation and whether its continued enforcement remained consistent with the objectives of the Divorce Act.

The court concluded that enforcement of the agreement would be unconscionable because it failed to recognize the applicant’s compensatory and non‑compensatory entitlement arising from career sacrifices, primary caregiving responsibilities, and health issues.

The court found that the parties could not reasonably have contemplated that the agreement would eliminate ongoing spousal support once the respondent regained stable employment.

The court therefore overrode the relevant provisions of the separation agreement and fixed mid‑range SSAG spousal support retroactive to March 1, 2012, while extending the termination date of support.

The offender was sentenced following conviction for sexual assault under s. 271 of the Criminal Code involving intercourse with an intoxicated and ill complainant who cycled in and out of consciousness and expressly told the offender to stop.

The court considered aggravating factors including the complainant’s vulnerability, the offender’s disregard of her lack of consent, resulting genital injury, and the offender’s dishonesty during the investigation and at trial.

Mitigating factors included the offender’s youth, lack of criminal record, supportive family, work history, and significant mental health concerns following conviction.

Applying the principles in ss. 718 and 718.2 of the Criminal Code and reviewing comparable sentencing authorities, the court determined that a mid‑range custodial sentence in the reformatory range was appropriate.

The offender was sentenced to two years less a day of imprisonment with credit for pre‑sentence custody, followed by three years’ probation and several ancillary orders.

The plaintiffs brought a civil action in battery arising from a professional wrestling match in which the defendant intentionally cut the plaintiff with a razor blade immediately after cutting himself.

The court found that the defendant, who had Hepatitis‑C, transmitted the virus to the plaintiff through blood‑to‑blood contact.

As a result, the plaintiff lost a professional wrestling contract with a major wrestling organization and underwent painful medical treatments before ultimately being cured.

The court held the defendant liable for battery and awarded damages for pain and suffering, past income loss, and significant future income loss based on the lost opportunity to pursue a professional wrestling career.

Family members also received damages under the Family Law Act for loss of care, guidance, and companionship.

The accused applied under s. 24(1) of the Charter for an order dispensing with prosecutorial consent to re‑elect the mode of trial from judge and jury to judge alone pursuant to s. 561 of the Criminal Code.

The accused argued that anticipated evidence of prior bad acts and allegations of unrelated violent conduct could prejudice a jury and undermine the fairness of the trial.

The Crown refused consent and argued that the court could not review the exercise of prosecutorial discretion absent evidence of abuse of process.

The court held that binding authority requires proof that the Crown exercised its discretion arbitrarily, capriciously, or for improper motive before judicial intervention is justified.

As no evidentiary foundation demonstrating abuse of process or a Charter breach was established, the application to dispense with prosecutorial consent was dismissed.

The accused was charged with sexually assaulting the complainant after a night of drinking among friends where the complainant became severely intoxicated and ill.

The complainant testified that she lost consciousness intermittently and awoke to the accused engaging in sexual activity without her consent, repeatedly telling him to stop.

The court rejected the accused’s evidence due to numerous deliberate lies and inconsistencies, finding his testimony wholly unreliable.

The complainant’s evidence was accepted as credible and corroborated by medical evidence, witness testimony, and surrounding circumstances.

The court held that the complainant lacked the capacity to provide ongoing consent due to intoxication and illness, and that the accused took no reasonable steps to ascertain consent.

The defence of honest but mistaken belief in consent was found to have no air of reality.

During a criminal trial involving allegations of sexual assault, the Crown sought to qualify a police detective as an expert in the operation of Facebook features and Microsoft Word functions relevant to the creation of a document allegedly copied from a Facebook News Feed.

The defence challenged the scope and usefulness of the proposed expert evidence, arguing that the detective lacked sufficient expertise regarding Facebook’s technical coding in 2009 and could not conclusively authenticate the document.

Applying the criteria for admissibility of expert evidence from R. v. Mohan, the court found the proposed testimony relevant and necessary to assist the trier of fact in understanding technical aspects of copying, pasting, hyperlinks, and auto-correct features.

The court concluded the detective possessed specialized knowledge through training and investigative experience and that any limitations in his expertise affected weight rather than admissibility.

The detective was therefore qualified to provide expert opinion within the proposed areas.

The accused was convicted after trial of two counts of sexual assault arising from incidents involving non-consensual touching of a cognitively delayed adult woman during a social gathering.

The court considered aggravating factors including the complainant’s vulnerability, the offender’s prior sexual assault conviction, and intoxication at the time of the offence.

Mitigating factors included the relatively low level of physical intrusion, partial acceptance of responsibility, mental health issues, and a low to moderate assessed risk of reoffending if sober.

Applying the sentencing objectives of denunciation and deterrence under the Criminal Code, the court imposed a custodial sentence followed by probation and several ancillary orders.

The sentence also included treatment conditions, a firearms prohibition, a DNA order, and registration under the national sex offender registry.