Bonnie R. Warkentin

This decision addresses a voir dire application in a murder trial to determine the voluntariness and admissibility of three statements made by the accused to police.

The court found the August 22, 2006 telephone statement and the November 8, 2006 video statement to be voluntary and admissible.

Portions of the November 8, 2006 surreptitiously audio-recorded statement were deemed admissible, specifically those relating to the murder investigation, while police opinions and commentary on unrelated criminal investigations were excluded due to prejudicial effect outweighing probative value.

The court rejected arguments that the accused was induced, misled about his status or the use of the interview, or that the statements' prejudicial effect outweighed their probative value.

The plaintiff, Shelly Wine, brought a motion for leave to appeal to the Divisional Court from an order setting aside a default judgment against two defendants, Houman Mahadjeri and Rayvin Teena Squires.

The motion judge had set aside the default judgment on terms, including payment of costs thrown away.

The plaintiff argued the motion judge misapprehended evidence regarding the timing of counsel retention and failed to address the defendants' delay, leading to prejudice.

The court applied the two-part test for leave to appeal under Rule 62.02(4)(b), which requires "good reason to doubt the correctness" of the order and that the appeal involves "matters of such importance." The court found no good reason to doubt the correctness of the motion judge's decision, which had properly considered the five factors for setting aside default judgment as outlined in Mountain View Farms Ltd. v McQueen.

The motion for leave to appeal was dismissed, and costs were awarded to the respondents.

The father, who had been restricted to supervised access since 2013 due to criminal charges and allegations by the mother, was acquitted.

During the ongoing family trial, the court delivered immediate oral reasons terminating the supervised access regime.

The court found that the mother failed to rebut the presumption of maximum contact and that the father had demonstrated consistent, loving parenting.

The court ordered joint custody with primary care to the mother, immediate transition to unsupervised access, and reunification counselling for the father and child.

The accused brought an application for bail review seeking release pending trial after a prior detention order based on the tertiary ground.

The accused argued that a strengthened bail plan with additional sureties, substantial financial pledges, and evidence of prior compliance constituted a material change in circumstances.

The court applied the framework from R. v. St‑Cloud governing bail review under ss. 520 and 521 of the Criminal Code.

It held that the proposed additional sureties and financial pledges did not constitute a material and relevant change in circumstances and did not sufficiently address the tertiary ground concerns.

Given the seriousness of the alleged offences, the apparent strength of the Crown’s case, and the potential for lengthy imprisonment, continued detention was necessary to maintain confidence in the administration of justice.

The Attorney General of Canada sought leave to appeal an interlocutory order dismissing its motion to strike parts of the plaintiffs' statement of claim.

The underlying action involved an aircraft runway overrun, with the plaintiffs alleging Transport Canada was negligent in designing, constructing, and certifying the runway.

The court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision to leave the duty of care analysis for trial.

Accused charged with bid‑rigging and conspiracy challenged the constitutionality of s. 69(2) of the Competition Act, which deemed certain documents and records found in possession of a “participant” to constitute prima facie proof of knowledge and related facts.

The applicants argued the provision created evidentiary and legal presumptions that effectively shifted the burden of proof onto the accused, contrary to the presumption of innocence under ss. 7 and 11(d) of the Charter.

The court held that the section required the trier of fact to accept knowledge of documents as proven and could compel the accused to respond before the Crown proved guilt beyond a reasonable doubt.

The provision therefore infringed the presumption of innocence and fundamental justice and was not justified under s. 1 of the Charter.

Section 69(2) was declared of no force or effect in criminal proceedings, though its use in Competition Tribunal proceedings was unaffected.

The applicant brought a fourth motion seeking to have the respondent found in contempt for allegedly breaching a prior order restricting him from receiving income or benefits from his corporation while in default of spousal support obligations.

The respondent was significantly in arrears and had previously been found in contempt related to enforcement of support and security obligations.

The applicant argued that the respondent violated the order by receiving corporate-paid benefits including a vehicle, cell phone, and insurance coverage.

The court held that these items were legitimate business expenses necessary for the operation of the respondent’s real estate business and did not constitute prohibited benefits within the meaning of the earlier order.

The motion for contempt was dismissed and costs were reserved to the judge hearing the ongoing motion to change support.

The appellant appealed a summary conviction for sexual assault under s. 271(1) of the Criminal Code, arguing that the trial judge erred in assessing credibility, misapplied the principles in R. v. W.(D.), improperly relied on a prior statement to police, and failed to recuse himself due to an alleged reasonable apprehension of bias.

The appellate court reviewed the trial judge’s credibility findings and determined that although the trial judge made minor factual errors in describing certain circumstances, those errors were not overriding and did not undermine the conviction.

The court found that the trial judge properly used inconsistencies in the appellant’s prior statement only to assess credibility and correctly applied the Browne v. Dunn rule and the reasoning in R. v. Truong when drawing inferences about new allegations raised in the appellant’s testimony.

The court also held that the W.(D.) framework had not been misapplied and that the appellant failed to establish a reasonable apprehension of bias arising from the complainant’s spouse having previously served as a judicial colleague of the trial judge.

The conviction was upheld.

Multiple accused charged with bid-rigging and conspiracy to bid-rig under the Competition Act and Criminal Code brought applications under ss. 11(b) and 24(1) of the Charter seeking a stay of proceedings for unreasonable delay.

The prosecution involved a large multi‑accused investigation into coordinated bids for federal government IT contracts and involved extensive disclosure and lengthy preliminary inquiry proceedings.

The court analyzed delay using the framework from R. v. Morin and classified various periods as inherent delay, waiver by the accused, or limited systemic delay.

Most of the post‑charge delay was attributable to the complexity of the case and to the accused’s consent to postponement pending certiorari and appellate proceedings.

The applicants failed to demonstrate actual prejudice or unreasonable systemic delay.

The defendants moved for a temporary stay of an Ontario action on the basis that identical proceedings were underway in New Brunswick.

The action concerned allegations that a former employee embezzled funds and used them to purchase and improve real property, including property later acquired in another province.

The court considered the test for temporary stays where parallel proceedings exist in different jurisdictions, including whether a stay would prevent duplication of resources and whether it would cause injustice to the resisting party.

The court held that the defendants had not demonstrated that a stay would avoid unnecessary duplication, particularly where the plaintiffs did not intend to pursue the foreign action beyond preserving a certificate of pending litigation.

Granting the stay would effectively render the Ontario proceeding moot and deprive the plaintiffs of their choice of forum.

The motion was dismissed and the defendants were granted time to file a defence.

Following a trial in a personal injury action, the court addressed the issue of costs after written submissions.

The successful plaintiff sought substantial indemnity costs alleging litigation misconduct by the defendants, including failure to produce an important engineering drawing and challenging the plaintiff’s credibility.

The defendants argued costs should be reduced due to delay and duplication arising from the plaintiff changing counsel multiple times and periods of self‑representation.

The court held that neither party’s conduct justified substantial indemnity costs and emphasized the principle that cost awards must be fair and reasonable rather than matching actual legal fees.

Partial indemnity costs of $200,000 inclusive of taxes and disbursements were awarded to the plaintiff, apportioned in accordance with the liability findings.

The accused was tried on multiple counts including procuring a person under 18 for prostitution, living on the avails of prostitution of a minor, human trafficking of a person under 18, receiving a material benefit from trafficking, assault, and breaches of recognizance.

The Crown alleged that the accused lured a vulnerable 17‑year‑old complainant to another city, exercised control over her movements, used threats and violence, arranged hotel rooms and online advertisements for sexual services, and collected the proceeds from prostitution.

The defence argued the complainant voluntarily engaged in sex work and that the accused believed she was an adult.

The court accepted the complainant’s evidence as credible and corroborated by documentary evidence and third‑party witnesses, rejecting the accused’s account.

The court found the accused exercised control and coercion over the complainant and knowingly exploited her as a minor.

Following a professional negligence trial, the court considered submissions on costs and the applicable rate of pre‑judgment interest.

The court corrected an error in the original reasons, confirming that pre‑judgment interest applied only to the $22,000 award rather than the total $50,000 damages figure referenced in the earlier decision.

It held that the appropriate pre‑judgment interest rate was 5% for the entire pre‑judgment period.

Although the plaintiffs sought more than $278,000 in partial indemnity costs, the court reduced the award after considering that the plaintiffs succeeded only in part and were unsuccessful on several factual allegations.

Applying principles from appellate authority regarding the purpose and reasonableness of costs, the court awarded $150,000 inclusive of taxes and disbursements.

Following a family law motion concerning a restraining order, temporary spousal support, disclosure, reimbursement of expenses, and a cross‑motion for occupation rent and credits, the court determined the issue of costs.

The moving party was successful on the majority of issues, although she did not obtain the restraining order sought and received less spousal support than requested.

The responding party obtained only a modest credit for occupation rent and support already paid.

Applying s. 131(1) of the Courts of Justice Act and Rule 24 of the Family Law Rules, the court held that costs should follow the event but that full indemnity costs were not appropriate.

The court awarded partial costs of $4,000 inclusive of HST and disbursements to the moving party.

Following a motion to change concerning the interpretation of a separation agreement and the calculation of child support, the court determined the issue of costs.

The parties achieved mixed success, with the moving party prevailing on the interpretation of the agreement and retroactive child support period, while the responding party succeeded on the residence of the child for support purposes.

Applying the principles under s. 131(1) of the Courts of Justice Act and Rule 24 of the Family Law Rules, the court found the moving party was more successful overall but that full indemnity costs were not warranted.

Costs of $5,000 inclusive of HST and disbursements were awarded to the moving party and characterized as support for enforcement purposes.

The court also approved a payment schedule proposed by the responding party for retroactive child support.

The plaintiff sued her parents alleging repeated physical and emotional abuse during her childhood, including blows to the head, emotional mistreatment, and a failure by the mother to protect her.

The trial was bifurcated under Rule 6.1 of the Rules of Civil Procedure to determine liability only.

The plaintiff relied primarily on her own testimony, limited third‑party affidavit evidence recounting statements she made in the past, and expert opinions interpreting her medical history and alleged trauma.

The defendants denied the allegations and presented evidence from themselves, their son, and police investigations indicating no corroboration of abuse.

The court found the defendants’ evidence more compelling and concluded that the plaintiff had not proven the alleged assaults, emotional harm, or breaches of fiduciary or protective duties on a balance of probabilities.

The plaintiff brought a negligence action against a municipality and road construction contractors after tripping on a height differential at a crosswalk during an ongoing road reconstruction project.

The court found that the unfinished roadway created a tripping hazard amounting to a condition of non-repair under s. 44 of the Municipal Act, 2001.

The defendants failed to install temporary ramping or provide adequate warning of the vertical gap between the roadway and depressed curb.

The court rejected allegations of contributory negligence and held that all defendants were occupiers responsible for site safety under the Occupiers’ Liability Act.

Liability was apportioned 50% to the paving contractor and 25% each to the municipality and general contractor, and damages were awarded for general damages, income loss, future care, and expenses.

The plaintiff sought leave to appeal a master's costs order that directed no costs be awarded to either party following a motion in which the plaintiff had been substantially successful.

The court considered the standard for granting leave to appeal a costs order under s. 133(b) of the Courts of Justice Act, which requires strong grounds demonstrating that the lower court erred in principle or exercised discretion improperly.

The court emphasized that appellate courts are reluctant to interfere with discretionary costs decisions absent clear error.

The master had considered the conduct of the parties and explained why costs were not awarded despite the general rule that costs follow the event.

The court found no basis to conclude the master was plainly wrong or erred in principle and refused leave to appeal.

A contractor brought an action under the Construction Lien Act seeking payment for labour and materials supplied during residential renovation work.

The homeowner denied liability, alleging incomplete and deficient work and counterclaimed for overpayment and repair costs.

After reviewing conflicting evidence regarding the percentage of project completion and the quality of workmanship, the court found the project was approximately 40% complete and that the contractor had incurred material expenses on the homeowner’s behalf.

Although some deficiencies were established, most alleged defects reflected higher construction standards than those contemplated by the parties’ low-cost arrangement.

Judgment was granted for the contractor for the unpaid value of labour and materials less modest deductions for proven deficiencies.

The offender was convicted after trial of possession of cocaine for the purpose of trafficking, possession of oxycodone and methamphetamine, possession of ammunition while prohibited, and breach of probation.

Police surveillance and a search warrant led to the discovery of packaged cocaine, pills, brass knuckles, and multiple cell phones in the offender’s vehicle, as well as ammunition in his residence.

The offender had a prior criminal record including a previous conviction for possession for the purpose of trafficking and was on probation for a violent offence at the time of the new offences.

The court emphasized denunciation and deterrence for cocaine trafficking offences while considering the offender’s criminal history and the relatively small quantity of drugs involved.

A sentence of 12 months’ imprisonment was imposed, less credit for 315 days of pre-trial custody, along with ancillary DNA, weapons prohibition, and forfeiture orders.