Tracey J. Nieckarz

The plaintiff, an architectural design firm, sued the defendants for copyright infringement, alleging they copied its design for a townhome project in Thunder Bay to build a similar project in Fort Frances.

The court found that the plaintiff held copyright in the original design, which was an original work requiring skill and judgment.

The court concluded that the defendants' design was a substantial reproduction of the plaintiff's work, constituting copyright infringement.

The plaintiff was awarded declaratory relief, an injunction, and $6,500 in statutory damages.

The accused was charged with robbery, assault with a weapon, and uttering threats following an incident where two women were attacked in a vehicle.

The primary issue at trial was identity, with the defence arguing that an acquaintance of the accused committed the offences.

During a blended voir dire, the court admitted the accused's video statement to police and Facebook Messenger group chat excerpts as evidence.

The court found that the circumstantial evidence, including video surveillance, clothing descriptions, and the accused's admissions in the group chat, proved beyond a reasonable doubt that the accused was the assailant.

The accused was found guilty of robbery and assault with a weapon, but acquitted of uttering threats.

The Attorney General of Ontario sought a forfeiture order under the Civil Remedies Act, 2001, for $32,125 CAD seized from an individual, alleging it represented proceeds and/or an instrument of unlawful activity, specifically drug trafficking.

The individual opposed, claiming the money was accumulated savings for a truck purchase.

The court applied the two-stage test for forfeiture, finding that the applicant established reasonable grounds on a balance of probabilities that the currency was linked to unlawful activity.

The individual's explanation for the cash was deemed not credible due to inconsistencies and circumstantial evidence.

The application for forfeiture was granted.

The accused, a volunteer firefighter, was charged with arson and conspiracy to commit arson after an acquaintance set fire to an abandoned home.

The Crown alleged the accused planned the fire with the acquaintance via social media and phone calls.

Applying the W.(D.) framework for credibility, the court found the accused's version of events raised a reasonable doubt, particularly because he took a call from the acquaintance on speakerphone in the presence of his girlfriend.

The accused was acquitted of all charges.

Following a successful motion to strike the plaintiffs' pleadings, the defendant sought costs.

The court reviewed the costs claimed by the defendant, including partial indemnity fees and disbursements for travel.

Finding the rates and time spent reasonable, the court awarded the defendant costs fixed at $4,127.64.

In a judge-alone sexual assault trial arising from two alleged incidents within an intimate relationship, the court applied the reasonable doubt standard and the W.(D.) framework to conflicting evidence from the complainant and the accused.

The court found both versions plausible in material respects, and the contemporaneous messages did not resolve whether the sexual activity was non-consensual or whether any lack of consent was known to the accused.

Although the court expressed concerns about aspects of both witnesses' evidence, the Crown failed to prove the actus reus and mens rea elements beyond a reasonable doubt.

The accused was acquitted.

A publication ban under s. 486.4 remained in place.

The respondents, the declarant and project manager of a condominium, brought a motion to add the general contractor, Man-Shield, as a party to an application brought by the condominium corporation seeking as-built drawings under the Condominium Act, 1998.

Alternatively, the respondents sought to consolidate the application with a related construction deficiency action.

The court dismissed the motion to add the general contractor, finding no cause of action against it under the Act, which imposes obligations solely on the declarant.

The court also dismissed the motion to consolidate, finding the issues distinct and noting that consolidation would unnecessarily complicate the proceedings and prejudice other parties.

The self-represented plaintiffs commenced an action against Hydro One for $150 million after their power was disconnected.

Their initial Statement of Claim was struck with leave to amend.

The plaintiffs brought a motion to extend the time to file their Amended Statement of Claim, and the defendant brought a cross-motion to strike the amended pleadings.

The court granted the extension of time to correct the filing irregularity but struck the Amended Statement of Claim in its entirety, finding it remained replete with irrelevant, scandalous, and inflammatory statements, and failed to plead material facts.

Leave to issue an Amended Amended Statement of Claim was denied, and the plaintiffs were ordered to pay a previous costs award before bringing any further motions to amend.

The accused was charged with sexual assault and touching a person under 16 for a sexual purpose.

The case involved conflicting testimonies from the complainant, the accused, and a third witness (P.L.K.).

The court applied the W.(D.) analysis for assessing evidence in criminal cases.

While the court did not entirely disbelieve the complainant, significant inconsistencies and exaggerations in her testimony regarding material facts of the assault and immediate aftermath raised reasonable doubt.

The evidence of the accused and P.L.K. also had credibility issues.

Ultimately, the Crown failed to prove guilt beyond a reasonable doubt, leading to an acquittal.

The plaintiff, Perhol Construction Ltd., moved to set aside an administrative dismissal of its action for delay, seeking to revive its claim for $450,000 against the defendants, 1698358 Ontario Ltd. o/a “Aloft International” and the Estate of Donald Wing.

The action had been dismissed by the local registrar under Rule 48.14.

The Estate opposed the motion, arguing prejudice and lack of success prospects.

The court found acceptable explanations for the delay, including compassionate reasons, issues with counsel, and the Estate's own non-compliance with court orders.

The court also found no significant non-compensable prejudice to the Estate.

The motion to set aside the dismissal was granted, and the action was revived with a new litigation timetable.

No costs were awarded.

The defendant Canada Border Services Agency (CBSA) brought a motion for summary judgment seeking dismissal of the plaintiffs' negligence and Occupier's Liability Act claims arising from a slip and fall.

CBSA argued it was not negligent, had a reasonable maintenance system, and that co-defendant Abitibi was solely responsible for maintenance.

The plaintiffs asserted genuine issues for trial regarding whether the agreement absolved CBSA of liability and whether CBSA met its duty of care.

The court dismissed CBSA's motion, finding genuine issues for trial regarding CBSA's reasonable care in monitoring Abitibi's maintenance performance, particularly given the informal inspection system and lack of documentation.

This decision addresses cross-motions concerning interim parenting arrangements for two children following the parents' separation.

The Mother sought to severely restrict the Father's parenting time, citing concerns about his mental health and past incidents.

The Father, while acknowledging mental health challenges, asserted they did not impair his parenting ability and sought shared parenting.

The court, prioritizing the children's best interests, found that the Father's mental health concerns warranted a cautious approach but did not justify the previously imposed limited access.

The court expanded the Father's parenting time to include regular overnights and ordered communication via Our Family Wizard, emphasizing the need to minimize parental conflict and stabilize the children's routine.

Financial issues were adjourned.

The Applicant Wife brought a motion for interim spousal support and an extension of time to set the matter down for trial.

The Respondent Husband disputed the quantum of support, arguing the Wife was underemployed, the separation date was earlier than claimed, and his obligations to a second family should reduce his support payments.

The court found the Wife established a prima facie case for spousal support on both compensatory and non-compensatory grounds.

The court ordered the Husband to pay $1,695 per month in temporary spousal support, representing the high end of the Spousal Support Advisory Guidelines range, based on the Husband's income of $55,000 and the Wife's imputed income of $11,400.

The court rejected the Husband's arguments regarding the Wife's income, the separation date, and the impact of his second family's expenses on his ability to pay support.

The extension for trial was granted.

The accused, J.F., charged with sexual assault, brought an application under sections 276.1 and 276.2 of the Criminal Code to adduce evidence of the complainant's prior sexual history with him, including their ongoing sexual relationship and consensual bondage activities.

The accused argued this evidence was necessary for full answer and defence and to provide context.

The Crown opposed on grounds of relevance.

The court dismissed the application, finding the proposed evidence irrelevant to the issues at trial and that its admission would support the "twin myths" prohibited by section 276(1) of the Criminal Code.

The court also found that the evidence lacked significant probative value and would prejudice the complainant's dignity and privacy.

The accused, J.F., brought an application under s. 278.3 of the Criminal Code for the production of counselling records from Crisis Homes Inc. (Faye Peterson) pertaining to the complainant, S.S., in a sexual assault case.

The accused argued the records were likely relevant to the complainant's credibility, particularly given her statement that counselling encouraged her to report the assault.

The Crown, Faye Peterson, and the complainant opposed the application, asserting high privacy interests and arguing the accused's request was speculative.

The court dismissed the application, finding the accused failed to demonstrate that the records were "likely relevant" or that their production was "necessary in the interests of justice" as the complainant had explained her statement regarding counselling as related to safety concerns rather than influencing her recollection of events.

The defendant was successful on cross-motions to strike pleadings and sought costs of $7,224.66.

The self-represented plaintiffs did not challenge the entitlement to costs but disputed the quantum, particularly travel disbursements and agency fees.

The court reviewed the factors under Rule 57.01, reduced the travel disbursements to a reasonable expectation, disallowed agency fees that could have been avoided by teleconference, and deferred costs related to the statement of defence to the final disposition of the action.

Costs were fixed at $4,698.00 payable by the plaintiffs.

Following the dismissal of the respondent's motion for security for costs of a pending appeal, the successful appellant sought costs of $12,255.13 on a partial indemnity basis.

The respondent argued the amount was excessive and sought to have costs fixed at $6,506.26, payable in any event of the cause.

The court found the appellant's claimed hours excessive given the lack of complexity and brevity of the materials, fixing costs at $7,500 inclusive.

The court declined to order costs payable in any event of the cause, applying the presumptive rule that interlocutory costs are payable within 30 days.

The plaintiffs were wholly successful on a motion requiring surplus sale proceeds from the defendant's property to be paid into court.

They sought costs of $20,000 payable from the funds in court, while the defendant argued for $3,000 to $6,000.

The court fixed costs at $12,500 inclusive of disbursements and HST, balancing the indemnity principle with access to justice.

The court declined to order the costs payable from the funds in court, as other parties might have claims against those funds.

This decision addresses the issue of costs following motions concerning child relocation, custody, and access.

The Mother sought full recovery costs, arguing she was the successful party and the Father's conduct was unreasonable.

The court found the Mother was the successful party on the primary issue of relocation, but noted divided success on other issues, particularly access.

Considering the importance of the issues, the reasonableness of both parties' behaviour, and the offers to settle, the court fixed costs at $2,000, a substantial reduction from the Mother's claim.

The Mother's request to enforce the costs award as child support was denied, as the costs were not related to support or maintenance under the Family Responsibility and Support Arrears Enforcement Act, 1996.

The Trustees of the Ginoogaming First Nation Timber Claim Settlement Trust sought the court's opinion, advice, and direction regarding the interpretation of Article 12.5 of the Trust Agreement.

Specifically, they asked whether per capita payments should be made to individuals who would have been entitled to band membership on the voting day (December 15, 2001) but for discriminatory provisions of the Indian Act, and if so, whether the 20-year time limit for claiming payment applied.

The court, applying principles of trust and contractual interpretation, found that the plain meaning of the Trust Agreement limited payments to those whose names appeared on the Band List on the specified voting day.

It concluded that subsequent amendments to the Indian Act, which rectified historical discrimination, did not retroactively confer membership rights for the purpose of this specific trust distribution.

Consequently, the payments were not extended to individuals who became members after December 15, 2001.

The second question regarding the time limit was not addressed.