Cormac Donovan

The Crown brought a motion to admit RBC and Tangerine banking records for the truth of their contents in a criminal proceeding involving charges of Fraud Over $5,000 and Uttering a Forged Document.

The respondent conceded the admissibility of the Tangerine records.

However, the court dismissed the Crown's motion to admit the RBC records, finding that the Crown failed to provide the necessary evidentiary foundation under section 29 of the Canada Evidence Act, the common law business records exception, or as real evidence.

The court rejected the Crown's request to take judicial notice of the required evidentiary facts for the RBC records, emphasizing that such facts were too close to the dispositive issues and that judicial notice would subvert the statutory requirements.

The defendant, Wilfredo Hernandez, faced multiple criminal charges, some of which he pled guilty to (dangerous driving, driving while prohibited, evading police) and others proceeded to trial (uttering threats, break and enter, taking a child in contravention of a custody order, threat to cause death to child).

The court assessed witness credibility, including the complainant's attempt to influence another witness.

The defendant was found not guilty of taking a motor vehicle without consent and break and enter a dwelling house.

He was found guilty of uttering threats to the complainant, taking the child in contravention of a custody order, and threatening to cause death to the child.

The court emphasized the intent to deprive the custodial parent of possession of the child.

This is a costs endorsement following the dismissal of an interpleader application.

The interpleader application was necessitated by the respondent Mr. Wickham's late and unsubstantiated demand that an equalization payment be held in trust, despite having been previously denied similar relief.

Mr. Wickham failed to take timely steps to establish a proprietary claim or file responding materials.

The court found Mr. Wickham's conduct to be cavalier and ordered him to pay the applicants' costs of $3,253.74 and the respondent Mr. Hamdy's costs of $10,465.95, both on a partial indemnity basis and payable forthwith.

The plaintiff brought a motion under Rule 57.07 of the Rules of Civil Procedure seeking orders that her former solicitors personally repay legal fees and indemnify her for costs incurred following the dismissal of her action for delay.

The lawyers admitted responsibility for significant delays that contributed to the dismissal.

The court considered the principles governing personal costs orders against lawyers, emphasizing that such orders must be made sparingly and only in clear cases.

Given the clear admissions of delay and the direct connection between that delay and the costs consequences faced by the plaintiff, the court exercised its discretion to require the lawyers to pay the defendants’ costs of the dismissed action and to reimburse the plaintiff for certain costs awards.

The court declined to order repayment of legal fees, leaving issues of negligence and causation to be determined in a separate solicitor’s negligence action.