Andrew J. Goodman

The applicants, Stress-Crete Limited and King Luminaire Company Inc., sought a permanent injunction against their former employee, Stephen Harriman, to prevent him from breaching non-competition, non-solicitation, and confidentiality clauses in his employment agreement by working for a direct competitor.

The court found the non-competition clause ambiguous and unenforceable due to its overly broad geographical scope.

However, the non-solicitation and confidentiality provisions were deemed clear, reasonable, and enforceable.

The court found a serious issue to be tried, irreparable harm to the applicants from the use of confidential information and solicitation, and that the balance of convenience favored the applicants regarding these latter provisions.

The motion for a permanent injunction was granted in part, restraining Harriman from soliciting former clients and employees and from using confidential information for two years.

The plaintiffs, L.R. and D.Z., brought an action against their father, S.P., for historical sexual assaults.

The defendant was noted in default, and the matter proceeded as an uncontested trial on damages.

The court awarded L.R. $175,000 in general non-pecuniary damages, $10,000 for emotional distress, and $25,000 for aggravated damages.

D.Z. was awarded $250,000 in general non-pecuniary damages, $25,000 for emotional distress, and $25,000 for aggravated damages.

The court denied claims for punitive damages, finding the defendant's 10-year criminal sentence sufficient, and dismissed D.Z.'s claim for economic loss due to insufficient evidence.

Pre-judgment interest was awarded from January 2012 (date of discoverability/reporting of abuse).

Costs were awarded to the plaintiffs on a solicitor and client basis.

This endorsement addresses the costs of a successful motion by the plaintiff for the production of an investigative and surveillance report, which the defendant had resisted on grounds of privilege.

The plaintiff sought costs on a partial indemnity basis, while the defendant sought set-off costs for a prior motion.

The court found the plaintiff entirely successful on the production issue, which involved a novel point of law.

The court rejected the defendant's argument that the plaintiff, a lawyer represented by counsel from his own firm, should not recover costs, deeming it speculative and inconsistent with cost award principles.

The court determined that the defendant's steadfast maintenance of privilege was the principal cause of delay and the necessity of the motions.

The plaintiff was awarded costs on a partial indemnity basis.

Michael Coutts and Sharon Coutts, co-property managers for Primevest Realty Corporation, faced charges of possession of property obtained by crime over $5000, use, deal or act on a forged document (rent rolls), fraud over $5000, and theft of money over $5000.

The charges arose from alleged fraudulent activities during their employment.

Michael Coutts was found guilty of possession of property obtained by crime, fraud over $5000, and theft over $5000, but acquitted of using forged documents.

Sharon Coutts was found guilty of possession of property obtained by crime, based on the doctrine of wilful blindness, but acquitted of the fraud, theft, and forged document charges.

The court found Michael's testimony not credible and that he diverted rent funds for personal benefit, causing a loss of $148,730.00 to Primevest.

The plaintiff brought a motion for an order requiring the defendant private investigation firm to produce a surveillance report and video.

The defendant had been hired by the plaintiff's former spouse during matrimonial proceedings to conduct surveillance on the plaintiff.

The plaintiff sued the defendant for breach of privacy and sought production of the report.

The defendant claimed the report was protected by litigation privilege and common law case-by-case privilege.

The court held that litigation privilege from the spent matrimonial proceedings did not apply to this unrelated civil action.

The court also applied the Wigmore criteria and found that the defendant failed to establish a common law privilege.

The motion for production was granted.

The applicant, charged with fraud related to an alleged RRSP stripping scheme, brought a Charter application under ss. 8 and 24(2) to exclude evidence seized from various financial institutions and his residence.

He argued the affiant made intentional misrepresentations and omissions in the Informations to Obtain (ITOs).

The court conducted a Garofoli review and found that, despite some minor errors and one misrepresentation regarding a CRA auditor's opinion, there remained sufficient evidence upon which the issuing justices could have granted the authorizations.

The court also found the applicant had a negligible expectation of privacy in the bank and business records.

The application was dismissed, and the court noted that even if a breach had occurred, the evidence would be admissible under s. 24(2).

The applicant, Jeremy McDermott, charged with robbery and weapons offences, sought to exclude evidence (seized items, informal utterances, and formal statement) under ss. 10(b) and 24(2) of the Charter, alleging a breach of his right to counsel.

The court found that while the police properly informed McDermott of his rights at the scene, there was an inordinate and unexplained delay of over two hours at the police station in facilitating his access to duty counsel.

This delay constituted a breach of his s. 10(b) Charter rights.

Applying the s. 24(2) Grant factors, the court determined that the police conduct was not deliberate or systemic, and the weapons and spontaneous utterances were not causally or temporally connected to the breach, thus admissible.

However, the formal video statement, being self-incriminating evidence obtained after a significant denial of the right to counsel, was excluded as its admission would bring the administration of justice into disrepute.

Haiden Suarez-Noa was convicted of second-degree murder.

The court determined the period of parole ineligibility, which must be between 10 and 25 years.

The Crown sought 17-18 years, while the defence argued for 10-12 years.

The court considered aggravating factors, including the domestic nature of the murder, the victim's vulnerability, the number of stab wounds, and the offender's post-offence conduct.

Mitigating factors included no prior criminal record, turning himself in (albeit 12 hours later), and expressions of regret for his actions' impact on his son.

The court rejected the lower end of the jury's recommendations and the defence's proposed range, finding the offender's remorse less than sincere regarding the victim's loss.

The court fixed the parole ineligibility period at 15 years, emphasizing denunciation and deterrence, and issued a DNA order, a lifetime weapons prohibition, and a non-contact order.

The appellant, Alisa Chaly, appealed convictions for refusing to provide a breath sample and breach of recognizance, following an acquittal on impaired driving.

She raised ten grounds of appeal, including errors in determining reasonable grounds for the breath demand, timeliness of the demand, waiver of the right to counsel, arbitrary detention, failure to preserve video evidence, and conviction for breach of recognizance.

The court reviewed the trial judge's findings, applying a deferential standard for factual findings and legal conclusions.

The appeal court found that the trial judge correctly applied the law regarding reasonable grounds, timeliness of demand, and waiver of counsel, and that the appellant failed to establish arbitrary detention or prejudice from lost video evidence.

The conviction for breach of recognizance was also upheld as it was contingent on the other convictions.

The appeal was dismissed.

The applicants brought an application for a stay of proceedings, arguing their s. 11(b) Charter rights were violated due to unreasonable delay.

The total delay from charge to the anticipated end of trial was 43.5 months.

After deducting 5.5 months of defence waiver and 6 months for exceptional circumstances (Crown illness and underestimation of trial time), the net delay was 32 months.

The court found the case was not particularly complex and the remaining delay exceeded the 30-month Jordan ceiling.

The application was granted and a stay of proceedings was entered.

This criminal trial involved three accused (Adeel Safdar, Shaheen Safdar, and Aatif Safdar) charged with various assaults and uttering threats against Sara Salim, Adeel's wife.

The central issue was whether Sara's extensive injuries were inflicted by the accused or were self-inflicted due to mental illness, as she initially claimed.

The court found Adeel Safdar guilty of two counts of aggravated assault related to breaking Sara's jaw and permanently disfiguring her ear, based on Sara's testimony corroborated by expert medical evidence.

Shaheen Safdar and Aatif Safdar were found not guilty of all charges due to reasonable doubt, as Sara's testimony against them lacked sufficient corroboration and suffered from inconsistencies.

The defence sought to admit expert psychiatric evidence from Dr. Julian Gojer on dissociative amnesia to explain the accused's memory loss regarding the number of stabbings, arguing it was relevant to credibility and intent in a second-degree murder trial.

The Crown opposed, arguing the evidence was unnecessary, inadmissible, confusing, and lacked probative value, especially since Dr. Gojer could not conclusively state the accused experienced dissociation or link it to intent.

The court, applying the Mohan and White Burgess tests for expert evidence admissibility, found that the evidence had limited probative value and was not necessary to assist the jury, as the issue of memory loss for the number of stabs was within the jury's common sense.

The court concluded that the prejudicial effect of the evidence, including potential confusion and disproportionate weight, substantially outweighed its probative value.

The application to admit the expert opinion was dismissed.

The applicant sought an order to allow a race-based challenge for cause using a multiple-choice question format during jury selection.

The Crown did not oppose the race-based challenge itself, but objected to the proposed multiple-choice format, advocating for the standard "Parks question" approach.

The court granted the applicant's request to conduct a race-based challenge for cause but denied the use of the specific multiple-choice format.

The judge ruled that the standard open-ended Parks question was sufficient and that the proposed format would unduly prolong the process and potentially confuse prospective jurors without being more effective.

The Crown brought an application to admit similar act evidence against Geoffrey Burnet, who was charged with three counts of exposing his genital organs to persons under 14 for a sexual purpose.

The alleged incidents involved two young complainants, K.C. and K.A., occurring at Burnet's residence in similar circumstances, including a private setting, specific clothing, and contemporaneous viewing of pornography.

The court applied the R. v. Handy framework, balancing the probative value of the evidence against its potential prejudice.

Despite a temporal gap between incidents, the court found sufficient similarities to establish a specific propensity and objective improbability of coincidence, making the evidence probative to the actus reus and the complainants' credibility.

Given it was a judge-alone trial, the risk of moral and reasoning prejudice was deemed minimized.

The Crown's application was granted.

The applicant, a mortgage broker charged with multiple counts of sexual assault and fraud, brought a pre-trial motion seeking the production of third-party financial and police records relating to the complainants and other witnesses.

The court applied the framework under sections 278.1 to 278.9 of the Criminal Code.

The court found that while some financial records were likely relevant to the fraud allegations and the narrative of the transactions, the applicant failed to establish the likely relevance of personal banking records and police occurrence reports.

The court ordered the production of specific records that met the threshold and denied the remainder.

The plaintiffs, self-represented litigants, brought a motion to remove the defendants' counsel, R. Leigh Youd and his firm, BYLD, alleging breach of privilege, that Mr. Youd was a material witness, and a conflict of interest due to an alleged "phantom client" relationship.

The court dismissed the motion, finding no waiver of privilege, no basis for Mr. Youd to be a material witness, and no solicitor-client relationship with the plaintiffs.

The court emphasized that removal of counsel is a discretionary decision made only in the clearest of cases, and that the plaintiffs' arguments relied on speculation and misapprehensions of law and fact.

Costs were awarded to the defendants.

The Crown appealed an acquittal for operating a motor vehicle with a blood alcohol content exceeding 80 milligrams.

The trial judge had ruled a breath technician's certificate inadmissible due to a minor omission (a blank date line on one signature portion) and subsequently refused the Crown's application to reopen its case to call the technician.

The appeal court found that the trial judge erred in law by applying a strict, technical approach to the certificate's admissibility, contrary to modern jurisprudence.

It held that the certificate met statutory requirements and any perceived defect was not material and could have been remedied by other evidence.

The trial judge's late ruling, without prior notice, prejudiced the Crown by denying the opportunity to present further evidence.

The appeal was allowed, the acquittal set aside, a conviction registered, and the matter remitted for sentencing.

The Crown appealed the acquittals of the respondent on charges of impaired operation and operating a motor vehicle with a blood alcohol content exceeding 80 mg.

The appeal focused on whether breath samples were taken "as soon as practicable" and whether the trial judge properly considered the cumulative effect of impairment indicia.

The appellate court found that the trial judge erred in her analysis of "as soon as practicable" by penalizing police for an 8-minute delay caused by an unrequested call to duty counsel, which did not actually delay the breath tests given the technician's preparation time.

The court also found that the trial judge committed a palpable and overriding error by taking a piecemeal approach to the evidence of impairment rather than considering its cumulative effect.

The appeal was allowed, acquittals set aside, and the matter remitted for a new trial.

This mid-trial ruling addresses the Crown's application regarding alleged violations of the rule in Browne v. Dunn.

The Crown contended that the defence adduced evidence without first confronting Crown witnesses, particularly the complainant, Sara Salim, during cross-examination.

The court found four specific instances where the defence's failure to cross-examine on substantial matters constituted a breach of the rule, while dismissing the majority of the Crown's 16 alleged violations as either insubstantial or generally covered by the extensive cross-examination.

As a remedy, the court permitted the Crown to recall the complainant or other witnesses for reply testimony, declining the Crown's request for an adverse inference against the accused's credibility.

This is a costs endorsement following the denial of the applicant's request to appoint Section 3 counsel for Lynda Miziolek, an incapable person.

The respondent, Elizabeth Miziolek, sought costs on a partial and substantial indemnity basis.

The applicant, Alexandra Miziolek, argued for no costs or an offset due to divided success on other application segments.

The court found Elizabeth entirely successful on the discrete Section 3 counsel issue, which was not part of the original application and was deemed ill-conceived after a medical report confirmed Lynda's inability to instruct counsel.

The court awarded Elizabeth costs of $11,500 plus HST, to be paid by Alexandra.

Disbursements for the medical report were directed to be paid from Lynda's estate, acknowledging the public policy of not discouraging reasonable applications for vulnerable persons.