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 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.

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 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 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 plaintiff brought a motion to set aside a registrar’s order dismissing the action for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the contextual analysis and the four Reid factors governing motions to set aside dismissal orders.

The court found the plaintiff failed to provide an adequate explanation for extensive litigation delay, failed to establish that missing the deadline was inadvertent, and failed to bring the motion promptly after learning of the dismissal.

Although the defendants did not establish significant litigation prejudice, the court emphasized finality, chronic delay, and deficient evidence from the plaintiff.

The motion to set aside the dismissal order was dismissed.

In a child protection status review proceeding under the Child and Family Services Act, the child protection agency brought a motion for summary judgment seeking a final order placing the child in the custody of kinship caregivers pursuant to s. 57.1.

The evidence demonstrated that the child had lived with the kinship caregivers for over two years, had improved academically and behaviourally in their care, and required permanency and stability.

The mother had pleaded guilty to aggravated assault against another child and had failed to engage meaningfully with services, while the father had disengaged from the proceedings and presented no parenting plan.

Applying the summary judgment test and the best interests of the child analysis under the Act, the court concluded there was no genuine issue requiring a trial.

Custody was granted to the kinship caregivers with parental access restricted to supervised visits.

The plaintiffs brought a motion for leave to amend their statement of claim to add their own automobile insurer as a defendant for unidentified and underinsured motorist coverage following a collision in which a previously undisclosed unidentified vehicle may have contributed to the accident.

The insurer argued the claim was statute‑barred because the two‑year limitation period ran from the accident date.

Relying on Court of Appeal authority interpreting the Limitations Act and OPCF 44R coverage, the court held that a claim against an insured’s own insurer is contractual and the limitation period does not begin until a demand for indemnification is made and the insurer fails to respond.

As no such demand had yet been made, the limitation period had not been triggered.

The plaintiffs were granted leave to amend the claim to add the insurer for unidentified and underinsured motorist coverage.

The appellant corporation appealed a decision of the Ministry of Revenue refusing to cancel deferred land transfer tax under s. 3(11) of the Land Transfer Tax Act.

The Ministry argued that registration of a development agreement constituted a conveyance or instrument evidencing the disposition of a beneficial interest in land, thereby triggering the tax.

The court held that the registered development agreement merely referenced the appellant as owner and did not identify the specific transfer of beneficial interest from the affiliated corporation.

As a result, it did not constitute an instrument evidencing the disposition under the statute.

The appeal was allowed and the Minister was directed to vacate the disallowance and return the funds.

The defendants moved to set aside a default judgment obtained after their statement of defence had been struck for failure to deliver an affidavit of documents.

Applying Rule 19.08(2) of the Rules of Civil Procedure and the governing three-part test, the court considered the promptness of the motion, the explanation for the default, and whether the defendants had an arguable defence on the merits.

The court found the defendants acted promptly after learning of the judgment and provided a reasonable explanation for their failure to respond to the motion to strike.

The defendants also advanced arguable defences concerning the execution of mortgage acknowledgements, the scope and validity of personal guarantees, and potential limitation period issues under the Limitations Act, 2002 and the Real Property Limitations Act.

In the interests of justice, the court set aside the noting in default and the default judgment and permitted amendments to the statement of defence.

The defendants brought a motion to set aside a noting in default after failing to deliver a defence within the time required under the Rules of Civil Procedure.

The self‑represented plaintiffs initially opposed the motion and brought a cross‑motion seeking to remove defence counsel from the record but abandoned their opposition during argument.

The court found the defendants had a reasonable explanation for the delay, had consistently indicated an intention to defend, and had an arguable defence on the merits.

The default was set aside and the defendants were granted leave to deliver a statement of defence within ten days.

The plaintiffs’ motion to remove counsel was dismissed and costs of $1,500 plus HST were awarded to the defendants due to inappropriate allegations made in the plaintiffs’ materials.

Following a successful summary judgment motion dismissing the action arising from a motor vehicle accident, the defendant insurer sought costs.

The plaintiff had advanced unsupported allegations of bad faith, misconduct, and incompetence against the insurer and maintained claims for extra-contractual damages without evidentiary support.

The court held that such unfounded allegations justified an award of substantial indemnity costs to discourage speculative litigation.

However, the court limited substantial indemnity costs to the day of the motion hearing and awarded partial indemnity costs for preparation.

Total costs were fixed at $10,582.75 inclusive of fees, disbursements, and HST.

Following a personal injury trial arising from a municipal sidewalk trip-and-fall, the successful plaintiffs sought costs after recovering damages exceeding their pre-trial settlement offer.

The court considered Rule 49.10 of the Rules of Civil Procedure and rejected the defendant’s argument that the plaintiffs’ offer was not a good faith attempt to settle.

Because the judgment exceeded the offer and the defendant had made no counter-offer, the plaintiffs were entitled to partial indemnity costs up to the date of their offer and substantial indemnity costs thereafter.

However, the court exercised its discretion to reduce the claimed hourly rates and hours as excessive for a relatively non-complex case involving straightforward liability and damages issues.

The court fixed reasonable fees, disbursements, and HST, and also amended the earlier judgment to adjust the start date for prejudgment interest under s. 128 of the Courts of Justice Act.

The defendant insurer brought a motion for summary judgment seeking dismissal of the plaintiff’s claim for non-earner benefits arising from a motor vehicle accident.

The insurer argued that the claim was barred by the two‑year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule because the benefit had been denied in 2008.

The court held that the insurer’s OCF‑9 constituted a clear refusal of benefits and that the limitation period began running from that denial.

A subsequent change in the law regarding eligibility for non‑earner benefits did not invalidate the earlier denial or revive the limitation period.

Claims for mental distress, bad faith, and negligent misrepresentation were also dismissed due to lack of evidentiary support.

The accused applied to quash a production order and exclude hospital medical records and blood alcohol test results obtained following a fatal motor vehicle collision.

The defence argued that police improperly obtained the records through a production order under s. 487.012 of the Criminal Code rather than a search warrant and that the Information to Obtain was insufficient and misleading.

The court held that the statutory standard for a production order was constitutionally valid and materially equivalent to the search warrant standard, and that the issuing justice could reasonably have been satisfied that the statutory prerequisites were met.

Any inaccuracies or omissions in the Information to Obtain were found to be inconsequential and not misleading.

Following an unsuccessful motion by the defendant seeking to dismiss the plaintiff’s action on the basis of res judicata, the court determined the appropriate costs payable to the successful plaintiff.

The motion involved complex legal issues including the doctrine of res judicata, conflict of laws, and analysis of a United States declaratory judgment forming the basis of the defendant’s argument.

The plaintiff sought substantial partial indemnity costs reflecting extensive research, including evidence from U.S. counsel regarding American law.

The court found the claimed hours excessive for a one‑day motion but accepted that the issues were complex and important.

The court fixed reasonable partial indemnity costs and allowed the claimed disbursements.

The plaintiff, operating as Carey Industries, brought a motion for an interlocutory injunction to restrain the defendants from carrying on business under the name 'Steve's Welding & Sandblasting Inc.' The plaintiff had previously operated under the trade name 'Steve's Welding & Sandblasting' for nearly 30 years before changing its name.

The individual defendant, a former owner and employee of the plaintiff, incorporated the competing business shortly after his departure.

The court applied the RJR-MacDonald test and found a serious issue to be tried regarding passing off, noting the identical trade name and evidence of actual customer confusion.

The court concluded the plaintiff would suffer irreparable harm to its goodwill and that the balance of convenience favoured granting the injunction.

The defendant brought a motion to dismiss or stay an Ontario action on the basis of res judicata, issue estoppel, and abuse of process, relying on a Minnesota default declaratory judgment obtained after the plaintiff declined to attorn to the jurisdiction of the U.S. court.

The Ontario court found that the Minnesota judgment did not determine the dispute on the merits and that the defendant failed to disclose the pending Ontario proceedings when seeking default judgment.

Applying the principles governing recognition of foreign judgments, the court held there was no real and substantial connection between the dispute and Minnesota sufficient under Canadian conflict of laws rules.

The court further concluded that the doctrines of res judicata and issue estoppel did not apply, and even if they did, discretion should be exercised to refuse their application to avoid injustice and the appearance of forum shopping.