David Martin

East West Investment Management Corporation sought an order to pay funds into court or a declaration that its continued management of funds for Thomas Higgins and the TRH Foundation did not contravene the Criminal Code, due to a risk that the funds might constitute proceeds of crime from a German tax fraud scheme involving Maple Bank.

The court, exercising its inherent and supervisory jurisdiction over trusts, granted the order allowing East West to pay CDN$4,398,168 into court, with the consent of the respondents, to mitigate East West's risk of liability under money laundering laws.

The plaintiff sought an extension of time to file a notice of appeal after missing the deadline by one day.

Her underlying Small Claims Court action against the City for property damage caused by falling tree branches had been dismissed.

The Divisional Court granted the motion, finding that the plaintiff had a bona fide intention to appeal, the delay was minimal with a reasonable explanation, and there was no prejudice to the City.

The court also found potential merit in the appeal because the trial judge appeared to have overlooked a letter from the plaintiff regarding the trees' history of falling branches.

The applicants agreed to purchase a property and paid a $40,000 deposit.

The transaction failed to close on the scheduled date due to existing encumbrances on title, including mortgages and a caution from a previous failed sale.

The respondent, who had assumed the seller's rights, attempted to extend the closing date but was unable to provide clear title.

The applicants refused further extensions and demanded the return of their deposit.

The court found that the respondent was not in a position to convey substantially what the applicants contracted for, as the property remained subject to encumbrances.

The court declared the respondent in breach of the purchase agreement and ordered the return of the deposit to the applicants.

This is a trial decision on a voir dire regarding the admissibility of expert evidence in a prosecution under the Occupational Health and Safety Act arising from a stage collapse at a concert venue that resulted in a fatality.

The defendant Live Nation Canada Inc. challenged the qualification of two Ministry of Labour engineers to provide expert opinion evidence on the cause of the stage collapse.

The court found that both experts met the threshold requirement to testify, applying the test established in White Burgess v. Abbott and Haliburton Co. The court rejected arguments that the experts' involvement in the investigation, their employment relationship with the Ministry of Labour, and their participation in interviews with defendants undermined their independence and impartiality.

The accused was charged with impaired driving and over 80 milligrams of alcohol in blood.

The sole issue at trial was whether the Crown had proven that the accused was driving his vehicle on October 4, 2013, in Burlington.

The Crown called witnesses who observed the accused driving his car away from a strip club in the early morning hours.

The accused testified that a stranger who resembled him drove the vehicle instead.

The court found the accused guilty of impaired driving based on credible eyewitness identification and rejected the accused's testimony as unreliable and fantastical.

A one-year driving prohibition was imposed.

The plaintiff claimed a 50% beneficial interest in residential property registered in his former spouse's name, alleging his funds were used for half of the down payment.

The court found the parties generally lacked credibility and held the plaintiff failed to trace or prove, on a balance of probabilities, that his funds were used for the purchase.

A co-defendant's cross-claim based on two unchallenged trust declarations succeeded, and the court declared that he held a 50% interest and ordered transfer of that interest to him.

The court declined to resolve the broader accounting and occupancy issues arising under the trust because the documents were vague and the evidentiary record was insufficient.

The applicant provided funds to purchase a condominium but placed the title in the respondent's name to avoid capital gains taxes, based on an oral agreement that the respondent would hold it in trust.

The respondent later claimed he purchased the condominium with his own funds and refused to transfer title.

The court found the applicant's evidence credible and supported by banking records, while the respondent's evidence was contradictory and lacked documentary support.

The court held that a purchase money resulting trust arose, which was not rebutted.

The court also found that the doctrine of part performance applied, overcoming the Statute of Frauds requirement for a written contract.

The court declared the applicant the legal and beneficial owner of the condominium and ordered the respondent to transfer title and pay outstanding amounts.

In a motor vehicle accident action, the plaintiffs brought a pre‑trial motion seeking to admit various medical documents under ss. 35 and 52 of the Evidence Act, including clinical notes and consultation reports from several physicians.

The court considered the distinction between factual medical observations and opinion evidence following the Divisional Court’s decision in Westerhof v. Gee (Estate) and related authorities.

The court held that factual portions of a deceased treating physician’s clinical notes were admissible under the principled exception to the hearsay rule and potentially as business records, but the physician’s diagnoses could not be admitted for their truth absent compliance with Rule 53.03.

Compliance with Rule 53.03 was waived in limited circumstances to allow the diagnosis to explain treatment, subject to a limiting jury instruction.

Reports from other specialists that did not comply with Rule 53.03 were excluded due to prejudice and lack of cross‑examination.

The moving party sought leave to appeal to the Divisional Court from a motions judge's dismissal of an ex parte motion for a Certificate of Pending Litigation.

The moving party argued the motions judge erred in finding no fraudulent conveyance and requiring an interest in land.

The court dismissed the motion for leave to appeal, finding that because the underlying decision was ex parte, conclusory, and contrary to established law, it had no precedential value and granting leave would serve no public interest.

Following the release of an endorsement in this appeal, the parties sought clarification regarding paragraph two and the disposition of costs for the proceedings below and the motion for leave to appeal.

The Court of Appeal clarified that paragraph two applied only to respondents who advanced claims against the appellant in the 2006 action.

The court remitted the issue of costs for the proceedings below to the motion judge, as other parties not involved in the appeal had participated and could be affected.

The court ordered no costs for the two earlier motions in the Court of Appeal.

The appellant appealed an order striking his counterclaim in a 2008 action.

The respondents had previously brought a 2006 action against the appellant, which was settled.

The respondents then brought the 2008 action under s. 38 of the Bankruptcy and Insolvency Act, advancing overlapping claims.

The Court of Appeal allowed the appeal, finding that the appellant's counterclaim did not attempt to relitigate the 2006 action, but rather sought to prevent the relitigation of the settled claims.

The order striking the counterclaim was set aside.

The College of Physicians and Surgeons found the respondent physician guilty of infamous conduct for having a sexual relationship with a patient, based primarily on credibility findings.

The reviewing judge set aside the decision, finding the evidence was not 'clear and cogent'.

The Court of Appeal dismissed the College's appeal.

The Supreme Court of Canada allowed the appeal, holding that the reviewing judge conflated the standard of proof with the standard of review.

Applying the pragmatic and functional approach, the appropriate standard of review for the Committee's credibility findings was reasonableness simpliciter.

The reviewing judge erred by substituting her own view of the evidence, and the Court of Appeal erred by applying the 'clearly wrong' test to the reviewing judge's decision rather than determining if she applied the correct standard of review.

The appellant was convicted of conspiring to import cocaine.

At trial, he claimed he only pretended to participate in the conspiracy to regain the affections of his former mistress.

During cross-examination, the Crown questioned the appellant on why he had not disclosed this defence to authorities upon his arrest.

The trial judge failed to instruct the jury to ignore these questions and answers, despite an undertaking to do so.

The Supreme Court of Canada held that the cross-examination violated the appellant's right to silence under section 7 of the Charter.

The failure to instruct the jury caused irreparable prejudice that could not be cured by the proviso in section 613(1)(b)(iii) of the Criminal Code.

The appeal was allowed and a new trial ordered.

The plaintiff brought an action alleging he contracted mesothelioma from asbestos exposure and claimed the defendants conspired to withhold information about the dangers of asbestos.

The defendants applied to strike out the conspiracy claims as disclosing no reasonable claim.

The Supreme Court of Canada held that a statement of claim should only be struck out if it is 'plain and obvious' that it discloses no reasonable claim.

The Court found it was not plain and obvious that the conspiracy claim would fail, and the action was allowed to proceed.