B. Murphy

The accused were charged with possession of cocaine for the purpose of trafficking after police executed a search warrant at a residence.

Cocaine was found in a bedroom and the kitchen.

The Crown relied on circumstantial evidence to prove constructive or joint possession.

The court found that the Crown failed to prove beyond a reasonable doubt that the first accused occupied the bedroom or that the second accused had a measure of control over the drugs found in the common kitchen area.

Both accused were acquitted.

Following the dismissal of a summary judgment motion, the court determined the appropriate costs consequences for both the unsuccessful motion and an earlier motion abandoned by another defendant.

The court held that the unsuccessful moving party failed to establish that its summary judgment motion was reasonably brought in light of credibility disputes requiring a trial.

As a result, the opposing defendant was awarded costs of the summary judgment motion on a substantial indemnity basis under Rule 20.06.

The insurer was granted limited partial indemnity costs for the earlier abandoned motion under Rule 37.09(3), excluding certain examination costs used primarily for its own unsuccessful motion.

After set-off, a net costs award was ordered in favour of the opposing defendant.

In a motor vehicle accident action involving an uninsured driver, the OPCF 44‑R insurer brought a motion for summary judgment seeking a declaration that the insured driver was at least one percent at fault, which would remove the insurer from liability under the Negligence Act.

The court held that credibility issues and conflicting testimony regarding the circumstances of the collision required a trial, applying the “full appreciation test” articulated in Combined Air Mechanical Inc. v. Flesch.

The written record and cross‑examinations created genuine issues requiring trial, particularly regarding the drivers’ credibility and the sequence of events at the intersection.

The summary judgment motion was dismissed.

The insurer was awarded costs of an abandoned motion brought by another defendant and obtained a contingent declaration concerning the priority of insurance coverage for damages exceeding $200,000.