T. R. Lofchik

Zamir Simas-Mamani was convicted of choking to render the complainant incapable of resistance and sexual assault.

The court considered fundamental sentencing principles, including proportionality, gravity of the offence, offender responsibility, and the totality principle.

The assault involved repeated choking into unconsciousness, removal of clothing, and various sexual acts without a condom, lasting over an hour.

The court emphasized the brutality and inherent dangerousness of choking as a means to facilitate sexual assault, citing R. v. Lemmon and R. v. Finney.

Aggravating factors included the lack of condom use, the offender's criminal record, the victim's ongoing psychological and physical repercussions, the significant size and strength discrepancy, and the duration of the attack.

The court imposed a sentence of eight years for sexual assault and eight years concurrently for choking, with a two-year credit for pre-trial custody, resulting in a net sentence of six years.

Ancillary orders included a DNA sample, 20-year Sex Offender Information Registration, a lifetime weapon prohibition, and a no-contact order with the victim during custody.

The applicant retained the respondent law firm for a family law matter.

The retainer agreement included an hourly rate plus a 'results achieved fee' in the event of a positive result.

After a successful trial, the firm charged a results achieved fee of $72,433.24.

The applicant brought an application to determine if this fee contravened the Solicitors Act.

The court held that the results achieved fee was contingent on the successful disposition of the matter, making it a prohibited contingency fee agreement under s. 28.1(3) of the Solicitors Act.

The firm was ordered to refund the fee.

The applicant and respondent are brothers and shareholders in a corporation that owns a commercial property.

The respondent accepted an offer to sell the property on behalf of the corporation.

The applicant brought an oppression remedy application, alleging he was improperly excluded from management, and sought a certificate of pending litigation (CPL) against the property to prevent the sale.

The court dismissed the motion for a CPL, holding that a shareholder does not have a direct interest in the lands owned by the corporation, which is a requirement for a CPL under the Courts of Justice Act.

The court noted the appropriate remedy would be an injunction.

Following a trial where the plaintiff was awarded $565,000 in damages against the estate of her deceased former spouse, the plaintiff sought costs.

The court found that the executor of the estate engaged in reprehensible and reckless conduct, advancing groundless defences to harass the plaintiff and dissipate estate assets.

The court ordered the executor to personally pay the plaintiff's costs on a solicitor-client scale, fixed at $141,310 plus disbursements.

The applicant, claiming to be the common law spouse of the deceased, sought dependant support from the deceased's estate after the six-month limitation period had expired.

The estate trustees opposed the extension.

The court found that the bulk of the estate remained undistributed and there was no prejudice to the estate by the delay.

Applying the principles for extending the limitation period under section 61(2) of the Succession Law Reform Act, the court granted the extension, finding it proper to allow the application to proceed to trial to determine if adequate provision was made for the applicant.

Applejack Developments Inc. sought summary judgment against 2294894 Ontario Inc. for $500,000 based on a promissory note and amending agreements.

The defendant 2294894 Ontario Inc. argued lack of consideration, as funds were paid to a joint venture partner (2305992 Ontario Inc.), and that the claim was statute-barred under the Limitations Act.

The court found that the defendant failed to rebut the presumption of consideration, noting that payment to a joint venture partner constituted consideration.

The court also dismissed the limitation period argument, finding that the due date for the promissory note was automatically extended, making the action timely.

Summary judgment was granted to the plaintiff.

This decision addresses two consolidated proceedings.

The plaintiff, Julie Craven, sought substantial damages from the Estate of Andrew Peter Osidacz for a series of violent acts, including assault, the wrongful death of their son Jared, and attempted murder.

Additionally, Ms. Craven claimed that Michael Osidacz, as the estate trustee, breached his fiduciary duties by unreasonably defending the estate, leading to the dissipation of assets.

The court assessed damages for Ms. Craven, awarding her $565,000.00, and found the estate trustee personally liable to reimburse the estate for $71,277.98 in legal costs due to his imprudent and hostile litigation strategy.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for non-earner benefits and bad faith damages following a motor vehicle accident.

The court found that the plaintiff was statutorily barred from receiving non-earner benefits because she failed to submit a completed disability certificate indicating she met the statutory criteria, and she failed to attend a required section 44 insurer examination.

As there was no valid claim outstanding, the claim for bad faith damages was also dismissed.

The motion for summary judgment was granted and the action was dismissed.

The defendant insurer brought a motion to have the quantum of the plaintiff's property loss claim determined by the appraisal process under the Insurance Act, rather than by the court.

The plaintiff opposed, arguing the request was too late and would improperly bifurcate the trial, as the action also included claims for bad faith and punitive damages.

The court granted the motion in part, holding that the appraisal process is mandatory under the Insurance Act for determining the quantum of loss, regardless of the delay or the presence of other claims in the action.

The claims for recovery under the policy were stayed pending the appraisal.

The applicants sought an order extending the time to complete minutes of settlement and to restrain the defendants from exercising rights to obtain vesting orders.

The defendants brought a cross-motion for a vesting order.

The applicants argued that the defendants' failure to remove outdated MLS listings, which were improperly filed during previous foreclosure proceedings, hindered their ability to sell properties and satisfy the settlement.

The court, exercising its equitable jurisdiction, found that the defendants' improperly maintained listings impeded the applicants' performance.

The court granted the applicants' motion, ordering the removal of the listings and a four-month extension for compliance, with interest continuing to accrue.

The defendants' motion for a vesting order was dismissed.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claim for long-term disability benefits and related damages, including an allegation of conspiracy.

The plaintiff had previously received benefits but her coverage was terminated when she reduced her work hours to part-time.

The court found no evidence to support the conspiracy claim against the employer or the insurers.

Furthermore, the court held that the plaintiff's claim for disability benefits was statute-barred under the Limitations Act, 2002, as she discovered or ought to have discovered her claim when she was allegedly unable to work full-time in March 2007, but did not commence the action until May 2011.

The motion for summary judgment was granted and the action was dismissed.

Following a successful appeal that reinstated spousal support payments, the appellant sought costs of the appeal and the original motion on a substantial indemnity basis.

The court found no bad faith conduct by the respondent but awarded substantial indemnity costs from the date of the appellant's more favourable offer to settle.

Noting that the claimed costs of over $116,000 were disproportionate and lacked detailed dockets, the court reduced the fees to account for duplication of effort.

Costs were fixed at $85,727.14 inclusive of disbursements and HST.

The accused applied to exclude DNA evidence obtained pursuant to a warrant, arguing his s. 10(b) Charter right to counsel was infringed.

The police executed the warrant at a detention centre and gave the accused only a short time to contact his retained counsel before proceeding to take the sample.

The court found that the police failed to provide a reasonable opportunity to consult counsel, resulting in a s. 10(b) breach.

However, applying the Grant framework under s. 24(2), the court concluded the evidence should not be excluded, as the police acted in good faith, the bodily intrusion was modest, and the reliable DNA evidence was important to adjudicate the serious sexual offence charges on their merits.

The application was dismissed.

The appellant appealed an order reducing and ultimately terminating her spousal support.

The respondent, a former police officer, had voluntarily retired at age 51 and successfully argued at first instance that this constituted a material change in circumstances.

The Divisional Court allowed the appeal, finding that the motion judge made a palpable and overriding error in concluding the parties had agreed to an early retirement date during their initial settlement.

The Court held that voluntary early retirement by a payor who retains the capacity to earn income does not constitute a material change in circumstances.

The Court also found errors in the motion judge's application of the rule against double-dipping and the imposition of a termination date on support for a disabled spouse.

The original spousal support order was reinstated.

The accused, charged with first degree murder, brought a Rowbotham application seeking state-funded counsel after Legal Aid Ontario refused funding.

The court considered whether the accused had exhausted Legal Aid appeals, was indigent, and whether counsel was necessary to ensure a fair trial.

The evidence showed the accused had no income while incarcerated, had exhausted available financial resources, and had not deliberately depleted assets to qualify for assistance.

Given the seriousness of the charge, complexity of the case, and the accused’s limited education and legal experience, the court held that representation by counsel was essential to preserve fair trial rights under s. 7 of the Charter.

The accused brought a Charter application seeking exclusion of evidence obtained following a warrantless arrest for suspected cocaine trafficking.

Police relied on anonymous tips and surveillance showing several brief meetings between the accused and unidentified individuals.

The court held that although officers honestly believed drug trafficking was occurring, the information from informants was unreliable and the observed meetings were capable of innocent explanation.

The police therefore lacked objectively reasonable and probable grounds to arrest.

The arrest violated s. 9 of the Charter and the resulting searches of the accused and his vehicle infringed s. 8.

The applicant sought judicial review of the Minister's decision to exercise a five percent road reservation on his property pursuant to the Public Lands Act.

The applicant argued that the Minister miscalculated the land available, acted for an improper purpose, and denied him procedural fairness.

The Divisional Court dismissed the application, finding that the Minister had broad discretion under the Act, the decision to ensure public access was reasonable, and the applicant was afforded adequate consultation and reasons.

The respondent public complainant sought partial indemnity costs of $9,316.87 from the applicant police officer following a proceeding.

The applicant did not dispute the quantum but argued no costs should be ordered because the matter was a test case concerning the standard of proof in police disciplinary cases.

The Divisional Court rejected this argument, finding that while the co-respondent police service did not seek costs, the proceeding was not a test case for the public complainant, who was maintaining a civil claim against the applicant.

The court awarded the requested costs to the respondent public complainant.

The appellant appealed a trial decision that dismissed his claim for spousal support and awarded no costs.

The parties had a significant income disparity, with the respondent earning substantially more.

The Divisional Court found that the trial judge erred by failing to conduct an analysis of the means and needs of the parties and the impact of child support on the appellant's ability to support himself.

The court allowed the appeal, awarded spousal support of $800 per month based on the Spousal Support Advisory Guidelines, and awarded costs of the trial and appeal to the appellant.

The appellant appealed a trial decision regarding custody, access, and section 7 expenses.

He argued the trial judge was biased, improperly curtailed his questioning, and erred in granting the respondent final decision-making power and ordering him to pay 100% of extraordinary expenses.

The Divisional Court dismissed the appeal, finding the trial judge's interventions appropriate, the custody arrangement sensible to minimize conflict, and the section 7 order a reasonable exercise of discretion given the significant income disparity between the parties.