Catherine D. Aitken

The Defendant sought costs against the Plaintiff following the dismissal of the Plaintiff's action on a motion for summary judgment.

The court considered factors such as the principle of indemnity, proportionality, amount claimed, complexity, importance of issues, and conduct of the parties.

The Plaintiff, who was self-represented, had made the litigation more difficult and had unreasonably fought the dismissal.

The court awarded the Defendant fixed costs of $7,500, inclusive of disbursements and HST, finding it to be a fair, reasonable, and proportionate award.

The Crown sought to admit certain text messages for the truth of their contents in a criminal trial.

The Defence objected, citing concerns about necessity and reliability under the principled approach to hearsay.

The court ruled that two of the four contested text messages were admissible for the truth of their contents under the present intentions and co-conspirators’ exceptions to the hearsay rule, finding that they met the necessity and reliability requirements despite the declarant's availability.

The other two messages were deemed to lack probative value for their truth.

Sam Tsega was charged with second-degree murder.

The Crown sought to admit evidence of Tsega's marijuana use and dealing to establish opportunity, motive, context, and witness credibility.

The defense argued inadmissibility due to lack of support for inferences and prejudicial effect outweighing probative value.

The court applied the Handy/L.B. framework, finding the evidence relevant and material to central issues, and while discreditable, its probative value significantly outweighed any minimal prejudice, especially in a judge-alone trial.

The evidence was deemed admissible.

Kristopher McLellan and Kyle Mullen were cited for contempt of court after refusing to testify at the second-degree murder trial of Sam Tsega.

Both had previously provided statements to police and, in McLellan's case, testified at his own murder trial, implicating Tsega.

The court found both guilty of contempt.

Considering aggravating factors such as the refusal to testify in a murder trial, the highly probative nature of their evidence, the disruption to the trial, and their criminal records, alongside mitigating factors like no prior contempt, respectful conduct, and the risks associated with being labeled an informant in prison, the court sentenced each to 30 months imprisonment, to be served consecutively to their existing life sentences.

The accused was charged with multiple offences arising from a relationship with a complainant involved in escorting and exotic dancing, including human trafficking, receiving a material benefit from trafficking, withholding identity documents, assault, uttering threats, and breach of an undertaking.

The court assessed the complainant’s credibility, finding elements of exaggeration but accepting significant portions of her evidence.

The court held that the accused exercised control over the complainant through violence, threats, emotional manipulation, and financial control, compelling her to provide sexual services and surrender her earnings.

This conduct constituted human trafficking and related offences under the Criminal Code.

The accused was convicted on several counts, acquitted on others where the Crown had not met the burden of proof.

The Crown brought an application to admit similar act evidence between two alleged sexual assaults involving different complainants.

The incidents involved sex trade workers who were allegedly lured into a vehicle, threatened with a knife, and sexually assaulted.

The court considered the governing principles from leading authorities on similar fact evidence and assessed whether the probative value outweighed the prejudicial effect.

Given the strong DNA evidence, significant factual similarities between the incidents, and lack of evidence of collusion, the court concluded that the evidence had substantial probative value on issues of identity, consent, and use of a weapon.

The Crown’s application to admit the similar act evidence was granted.

The accused applied under s. 591(3) of the Criminal Code to sever counts relating to two alleged sexual assaults involving different complainants so that each incident would be tried separately.

The accused argued that he intended to testify on one set of counts to advance a consent defence but not on the other, where identity was disputed.

The court considered the factors governing severance, including prejudice to the accused, the factual and legal nexus between the incidents, the potential for similar fact evidence, and the efficiency of a single trial.

Finding extensive similarities between the alleged incidents and a viable similar fact evidence application, the court concluded that the interests of justice favoured a joint trial.

The accused failed to establish on a balance of probabilities that severance was required.

The accused sought a bail review under s. 520 of the Criminal Code following a detention order on secondary and tertiary grounds.

The accused argued that disclosure constituted a material change in circumstances because witness statements no longer clearly placed a firearm in his possession during the incident.

The court applied the criteria for bail review and new evidence articulated in St. Cloud and Palmer.

The court held that even without firearm evidence, the seriousness of the assault allegations, the accused’s lengthy criminal record, repeated breaches of court orders, and weak bail plan meant detention remained justified on the secondary ground.

The alleged change in the Crown’s evidence was therefore not material to the detention decision.

The accused applied for a bail review under s. 520 of the Criminal Code following a prior detention order based on secondary grounds.

The application relied on new evidence that a responsible adult relative was prepared to act as surety, post a bond, and supervise the accused in another province.

The court considered the criteria for admitting new evidence on review and determined that the proposed supervision plan constituted a material change in circumstances.

Given the credible surety and relocation away from complainants, the court found the risk to public safety could be adequately addressed by release conditions.

Following an application concerning enforcement of a condominium declaration restricting units to single family residence use, the court determined the issue of costs.

The applicants had been largely successful on the underlying application, obtaining findings that the condominium corporation was obligated to enforce its declaration and that certain grandfathering provisions in a proposed rule were unreasonable.

The court held that litigation was necessary to compel compliance with the declaration and that the applicants achieved the substantive relief sought.

Considering the factors under rule 57.01 of the Rules of Civil Procedure, including settlement offers and litigation conduct, the court awarded costs jointly and severally against the corporation and a director who had breached his statutory duties.

During a murder retrial, the defence sought a jury instruction alleging the Crown breached the rule in Browne v. Dunn by failing to cross‑examine the accused on several key aspects of his testimony.

The court reviewed the rule governing fairness in cross‑examination and the circumstances in which a failure to challenge a witness’s evidence may require remedial instructions.

Considering the trial context, the prior disclosure of the Crown’s theory, and the cross‑examination that did occur, the court held that no significant Browne v. Dunn breach by the Crown had occurred.

The accused had full opportunity to address the Crown’s theory during testimony and was not ambushed.

The requested jury instruction was therefore refused.

The accused was sentenced following jury convictions for assault causing bodily harm and two counts of forcible confinement, along with a guilty plea to assault.

The offences arose from a vigilante-style attack in which the accused and several associates forcibly removed two individuals from a nightclub and violently assaulted them in an alley after suspecting them of vandalizing a vehicle.

The assault resulted in severe and permanent injuries, including a traumatic brain injury and significant psychological disorders.

The court emphasized denunciation and general deterrence given the planned, group-based nature of the revenge attack and the profound harm to the victim.

After weighing aggravating and mitigating factors, the court imposed a global custodial sentence of three and a half years.

Following a jury conviction for sexual interference involving a 12‑year‑old complainant, the court proceeded to sentence after staying a sexual assault conviction pursuant to the Kienapple principle.

The offence involved a brief incident in which the accused sexually touched and kissed a child while alone in a residence.

The court considered denunciation and general deterrence as primary sentencing objectives for sexual offences against children, while also weighing rehabilitation due to the offender’s youth, impulsivity issues, and low assessed risk of recidivism.

Aggravating factors included the complainant’s age, the power imbalance between the adult offender and the child, and the psychological impact on the complainant.

The accused was sentenced to six months’ incarceration followed by two years’ probation with multiple conditions, along with ancillary orders including a s. 161 prohibition, DNA order, SOIRA registration, and weapons prohibition.

The accused was charged with sexual interference, sexual assault, and multiple counts of sexual exploitation arising from conduct toward his teenage daughter.

The court assessed credibility under the framework in R. v. W. (D.) and considered whether touching and related conduct occurred for a sexual purpose within the meaning of the Criminal Code.

The evidence established that the accused measured the complainant’s breasts and body, conducted a breast examination, purchased sexual devices for her, repeatedly encouraged her to use them, and briefly touched her vaginal area with a vibrator while demonstrating its use.

The court concluded that these acts occurred within a relationship of trust and authority and constituted sexual exploitation and sexual assault.

The accused was acquitted of sexual interference because the Crown failed to prove the complainant was under 14 at the time of the touching.

The plaintiff employee brought a motion for summary judgment seeking determination of the reasonable notice period following termination without cause.

The employer had provided two weeks’ pay pursuant to a termination clause that both parties agreed was unenforceable.

Applying the Bardal factors, the court considered the employee’s age, short service of approximately 51 weeks, technical qualifications, management-level responsibilities, and mitigation efforts.

The court also evaluated the availability of comparable employment within the regional IT labour market.

Balancing these factors, the court determined that a reasonable notice period was four months and granted summary judgment for the employee.

The insured brought a motion for partial summary judgment seeking a declaration that her action for statutory accident benefits was not statute-barred under s. 281.1 of the Insurance Act.

The insurer had terminated income replacement benefits following insurer examinations but failed to comply with mandatory procedural requirements under ss. 37 and 42 of the Statutory Accident Benefits Schedule, including failing to request a new disability certificate and failing to provide examination reports to the health practitioner who completed the disability certificate.

The court held these provisions were mandatory and that the insurer’s non-compliance meant the termination of benefits was not properly effected.

Because a proper refusal had not been given, the limitation period under s. 281.1(1) of the Insurance Act had not been triggered.

The court granted partial summary judgment declaring the action was commenced within the limitation period.

Following a jury verdict finding the accused guilty of assault causing bodily harm and forcible seizure, and a guilty plea to a further assault charge, the Crown applied under s. 523(1)(b)(ii) of the Criminal Code to revoke the accused’s bail pending sentencing.

The court considered the seriousness of the violent offences, the significant and permanent injuries suffered by the victim, and the prospect of a substantial custodial sentence.

The court also reviewed the accused’s prior criminal record, outstanding charges for a similar group assault while on recognizance, and concerns about the adequacy of a proposed surety.

While primary grounds for detention were minimal, the court held that secondary and particularly tertiary grounds justified detention to protect the public and maintain confidence in the administration of justice.

During a criminal jury trial, the court addressed whether defence counsel could use visual aids such as cartoons, stick-figure diagrams, and graphical illustrations during closing submissions.

The trial judge ruled that visual depictions created by counsel that were not admitted through witness testimony risked misleading the jury and effectively amounted to counsel giving evidence.

The court also rejected a proposed visual continuum illustrating the standard of proof beyond a reasonable doubt, relying on Supreme Court of Canada authority cautioning against analogies or illustrative scales for that standard.

The judge held that such materials could distort the fact‑finding process and improperly represent the evidence.

Defence counsel was therefore prohibited from using the proposed visual aids during closing address.

During a criminal jury trial, the accused brought a motion for a mistrial alleging a reasonable apprehension of judicial bias arising from various rulings and trial management decisions.

The motion relied on the judge’s handling of a juror scheduling issue, evidentiary rulings including a voluntariness voir dire and past recollection recorded, and discussions concerning possible modes of participation following the close of the Crown’s case.

The court applied the test for reasonable apprehension of bias from Committee for Justice and Liberty v. Canada (National Energy Board) and R. v. R.D.S. The court held that disagreements with rulings or expressions of difficulty understanding counsel’s arguments do not establish bias and that the judge’s conduct reflected ordinary trial management obligations.

The motion for a mistrial was dismissed.

During a criminal jury trial for assault causing bodily harm, the Crown brought an application to admit part of a witness’s prior written statement under the past recollection recorded exception to the hearsay rule.

The witness had prepared a statement within days of the incident but, at trial nearly three years later, lacked present memory of the accused’s detailed participation in the assault.

The court applied the criteria articulated in appellate jurisprudence requiring a reliable record, timeliness, absence of current memory, and the witness’s present confirmation of the statement’s accuracy.

Finding that the witness personally prepared the statement shortly after the event, had been sober, and vouched for its accuracy despite memory loss at trial, the court held the evidentiary requirements were satisfied.

The probative value of the statement was found to outweigh any prejudice, which could be mitigated through jury instructions and cross‑examination.