Bonnie R. Warkentin

The accused was charged with sexual assault.

The complainant died prior to trial, and her evidence from the preliminary inquiry was admitted under s. 715 of the Criminal Code.

The core issue was whether the accused stopped sexual intercourse when the complainant withdrew her consent.

Applying the W.(D.) test for credibility, the court rejected the accused's evidence and accepted the complainant's version of events.

The accused was found guilty.

The applicant sought a bail review under s. 520(1) of the Criminal Code after a Justice of the Peace denied his release pending trial on charges including kidnapping, drug trafficking, and conspiracy.

The applicant argued the Justice erred in applying the onus, relying on an alleged breach of a Manitoba recognizance, and overemphasizing an outdated criminal record.

The Superior Court dismissed the application, finding no material change in circumstances and concluding that the Justice did not err in law or render an unreasonable decision in justifying detention on the primary, secondary, and tertiary grounds.

The plaintiff was acquitted of murder following a 'Mr. Big' sting and sued the police for negligent investigation, as well as the Crown attorneys who provided legal advice to the police.

The police defendants cross-claimed against the Crown attorneys for contribution and indemnity based on negligent legal advice.

The Crown attorneys moved to strike the cross-claim under Rule 21.

The motion judge declined to strike the cross-claim, finding it was not plain and obvious that prosecutorial immunity applied to claims by police.

The Divisional Court allowed the appeal and struck the cross-claim, holding that Crown attorneys enjoy absolute immunity from civil suits in negligence arising from the exercise of their official functions, including providing legal advice to police during an investigation.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his human rights application for delay.

The incidents complained of occurred between 2003 and 2012, well beyond the one-year limitation period under section 34 of the Human Rights Code.

The Divisional Court found the Tribunal's decision reasonable, as the applicant failed to provide a good faith reason for the delay and could not establish a series of incidents extending into the limitation period.

The application for judicial review was dismissed.

The sellers appealed an order directing the release of a $50,000 deposit to the purchaser after a failed commercial real estate transaction.

The sellers argued the purchaser committed an anticipatory breach, relieving them of the obligation to tender.

The Divisional Court dismissed the appeal, upholding the application judge's finding that ongoing negotiations to extend the closing date negated any repudiation.

Because there was no accepted repudiation, the sellers were required to tender to enforce the agreement, which they failed to do.

The purchaser was therefore entitled to the return of its deposit.

Following the plaintiff's success on the defendant's motion for summary judgment and venue change in a wrongful dismissal action, the parties made written submissions on costs.

The plaintiff sought partial indemnity costs of $18,129.55, while the defendant proposed $12,000.

Applying the overriding principle of reasonableness, the court fixed the plaintiff's costs at $15,000 inclusive of HST and disbursements.

The defendant was successful on a motion for summary judgment and sought costs on a substantial indemnity basis in the amount of $73,904.88, or alternatively $58,976.58 on a partial indemnity basis.

The plaintiffs argued the amount was excessive and suggested $20,000.

The court declined to award substantial indemnity costs as there was no offer to settle or reprehensible conduct.

Finding overlap and excessive hours in the defendant's bill of costs, the court awarded the defendant $25,000 inclusive of HST and disbursements on a partial indemnity scale.

The applicant, an Indigenous man, sought a review of a detention order made by a Justice of the Peace following charges of possession of a weapon for a dangerous purpose and reckless discharge of a firearm.

The incident occurred during a mental health crisis while the applicant was severely intoxicated.

The Superior Court of Justice found that the Justice of the Peace erred in law by failing to consider Gladue factors and the applicant's personal circumstances when detaining him under the tertiary ground.

The court concluded that the proposed release plan, which included medical treatment and a surety, would not undermine public confidence in the administration of justice, and ordered the applicant's release.

The applicant mother sought an urgent, temporary order to relocate with her 10-month-old child from Thunder Bay to Manitouwadge for new employment, and for temporary sole custody or a declaration of primary caregiver.

The respondent father opposed the relocation.

The court dismissed the mother's motion to relocate, finding it was not in the child's best interests due to the critical stage of the child's development and the need to foster a strong paternal relationship.

The mother was declared the child's primary caregiver, but no custody order was made.

The court ordered that the father should have a regular, consistent access schedule with increasing amounts of time, including overnight access.

Grace Gaurino was convicted of fraud over $5,000 and theft over $5,000, with the theft count stayed under the Kienapple principle.

The fraud involved $16,629.96 from her 98-year-old vulnerable employer, Eileen Rennie, through altered cheques.

The Crown sought 18-21 months custody, while the defence requested 90 days or less intermittent.

A key consideration was the collateral immigration consequence under the Immigration and Refugee Protection Act, where a custodial sentence of six months or more would remove the right to appeal a deportation order on humanitarian and compassionate grounds.

The court balanced denunciation, general deterrence (paramount in breach of trust fraud), and rehabilitation, alongside mitigating factors (first offence, admissions, personal difficulties, late remorse) and aggravating factors (breach of trust, vulnerable victim, some planning).

Finding the appropriate sentence range to be between 90 days and 12 months, the court imposed a 90-day intermittent sentence to preserve Gaurino's right to appeal deportation, considering her three Canadian citizen children and strong rehabilitation prospects.

A restitution order of $16,629.96 and a 2-year prohibition from positions of financial authority were also imposed.

The applicant sought a stay of proceedings under s. 24(1) of the Charter due to an alleged violation of his s. 11(b) right to a trial within a reasonable time.

The total delay from charge to trial was 42 months.

The court attributed 4 months and 2 weeks to defence delay and 1 month and 3 weeks to a discrete event (court recording system failure), resulting in a net delay of 35 months and 3 weeks.

This exceeded the 30-month presumptive ceiling established in R. v. Jordan.

The Crown failed to demonstrate transitional exceptional circumstances to justify the delay, citing a general lack of diligence, including a year for disclosure and 12 months for a two-day preliminary inquiry.

The court found a violation of s. 11(b) and granted a stay of proceedings.

The defendant brought a motion for summary judgment to dismiss the plaintiff's wrongful dismissal and Human Rights Code claims, and alternatively, a motion to transfer the proceeding from Thunder Bay to Kenora.

The court dismissed the summary judgment motion, finding genuine issues requiring a trial, particularly regarding the defendant's knowledge of the plaintiff's developmental limitations and the fairness of the termination investigation.

The court also dismissed the venue transfer motion, affirming the plaintiff's prima facie right to choose venue and finding the defendant did not demonstrate Kenora was significantly better than Thunder Bay.

The defendants brought a motion for leave to appeal to the Divisional Court from an order denying their request to file a jury notice late.

The court applied the two-part test under Rule 62.02(4) of the Rules of Civil Procedure, considering whether there was a conflicting decision or good reason to doubt the correctness of the order and if the matter was of general importance.

The court found no conflicting decision, as the motion judge had correctly applied the established two-factor test for late jury notices (delay and prejudice) and was entitled to deference on factual findings.

Furthermore, the court found no good reason to doubt the correctness of the motion judge's decision, which had determined that the delay in filing the jury notice was unconscionable and would cause prejudice to the plaintiff by delaying the trial.

The motion for leave to appeal was dismissed.

The defendants moved for summary judgment, arguing the plaintiff's professional negligence action was statute-barred by the two-year limitation period under the Limitations Act, 2002.

The plaintiff alleged negligence regarding legal advice on an arbitration clause.

The court found the plaintiff discovered the claim by November 23, 2009, based on a letter threatening legal malpractice action and attempts to amend pleadings.

The action, commenced October 4, 2013, was therefore dismissed as statute-barred.

The appellant appealed a sexual assault conviction, arguing the trial judge erred in assessing credibility (W.(D.) test) and rejecting his testimony, and sought to introduce fresh evidence.

The appellate court dismissed the appeal, finding the trial judge's reasons for credibility findings were sufficient and that the fresh evidence was not diligent or material.

The court determined costs following a motion where the Respondent largely succeeded in having a settlement enforced on its terms.

The Respondent sought partial indemnity costs of $12,675.82, while the Applicants proposed $4,000.

The court, applying the principle of reasonableness, found the Respondent's claimed hours excessive for the nature of the motion, which involved interpreting a settlement agreement regarding release terms.

The court awarded the Respondent $5,000.00 plus HST and disbursements of $679.32.

The Applicants sought to enforce Minutes of Settlement but disputed the inclusion of a standard contribution and indemnity clause in the full and final release, arguing it was not part of the negotiation.

The Respondent contended that the clause was standard and that the Applicants failed to disclose a separate action against a surveyor, which would prejudice the Respondent if the clause were excluded.

The court found that a final settlement was reached, and the standard release with the contribution and indemnity clause was appropriate, as the Applicants had an obligation to disclose the separate action if they sought an exception.

The accused, a caregiver for a 98-year-old woman, was charged with fraud and theft over $5,000.

The Crown alleged that the accused altered cheques written for her salary to receive an additional $16,629.96 over a three-month period.

The accused claimed the extra funds were gifts or for petty cash.

The court rejected the accused's explanation, finding that she altered the cheques after they were signed and took advantage of the victim's forgetfulness.

The accused was found guilty of both offences.

The Crown applied under s. 714.2 of the Criminal Code to adduce evidence from a witness, Omar Ahmed, via video link, as he had been deported to Somalia after the first trial.

The Defence opposed, arguing that the witness should testify in person and that cross-examination via video link would be hampered.

The court ruled that s. 714.2 is mandatory and does not require all efforts to secure in-person testimony.

The Defence failed to satisfy the court that video link testimony would be contrary to fundamental justice principles, as video technology is regularly used and does not deprive an accused of a fair trial or the opportunity to confront a witness.

The application was granted, with conditions for video quality and process.

During a homicide trial, the Crown applied to have the jury instructed on party liability for murder under s. 21(2) of the Criminal Code, arguing that the accused could be found guilty as an aider or abettor even if he was not the principal shooter.

The trial judge dismissed the application, finding that the evidence only supported the theory that the accused was the principal.

There was no evidence that the accused provided actual assistance or intended to help or encourage someone else to commit the offence.