D. C. Shaw J.

The Crown appealed the acquittal of a young person charged with assault with a weapon.

At trial, the complainant failed to attend after being served substitutionally via a family member.

The trial judge refused the Crown's requests for a material witness warrant and an adjournment, leading to the dismissal of the charges.

The Superior Court of Justice dismissed the appeal, finding that the trial judge properly exercised her discretion in refusing the warrant due to insufficient evidence that the complainant was aware of the subpoena, and in refusing the adjournment because the Crown failed to satisfy the conditions for an adjournment.

The Crown brought an application under section 752.1(1) of the Criminal Code to remand the respondent for an assessment to determine whether he should be declared a dangerous or long-term offender.

The respondent had recently been convicted of two counts of sexual assault and had a lengthy criminal record including prior sexual offences.

The court reviewed the respondent's history, psychological reports, and Gladue factors, concluding that there was a pattern of repetitive behaviour showing a substantial degree of indifference to the consequences of his actions.

The court found reasonable grounds to believe the respondent might be found to be a dangerous or long-term offender and ordered the assessment.

The accused applied under s. 520 of the Criminal Code to review a justice of the peace’s detention order denying bail on the secondary ground.

The court considered whether there had been an error in principle or a material change in circumstances since the original bail hearing.

The applicant argued that a proposed surety was no longer supervising another accused and could better supervise him, and also challenged the strength of the Crown’s identification evidence.

The court found no error in principle and concluded the change regarding the surety was not material, particularly in light of the accused’s extensive criminal record and repeated breaches of court orders.

Even if the change were material, detention remained justified due to the high likelihood of reoffending and the serious nature of the alleged armed robberies.

The appellant appealed a sentence imposed following guilty pleas to two counts of breach of probation contrary to s. 733 of the Criminal Code.

At sentencing, the Crown and defence made a joint submission for a one‑day concurrent sentence accounting for time served, but the trial judge rejected the joint submission and imposed a 14‑month conditional sentence order with fines.

The appeal court held that the sentencing judge failed to apply the established high threshold required to reject a joint submission and did not provide sufficient reasons demonstrating that the proposed sentence would bring the administration of justice into disrepute or be contrary to the public interest.

The judge also failed to give counsel an opportunity to address the rejection of the joint submission.

The sentence was set aside and replaced with the jointly proposed disposition.

The defendant subcontractor brought a motion under s. 47 of the Construction Lien Act to discharge the plaintiff's claim for lien, arguing it was filed out of time.

The plaintiff had stopped providing hoisting services to the defendant due to unpaid arrears but continued providing services on the project after the general contractor agreed to pay for them directly.

The court found a genuine issue for trial regarding whether the subsequent services were provided under a continuing contract with the defendant or a new contract with the general contractor.

The motion was dismissed.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams, arguing that police breached her Charter s. 10(b) right to counsel by failing to advise her of the availability of French-speaking duty counsel.

The trial judge had found that the appellant understood both English and French, indicated no language preference, and did not raise any concern when speaking with English-speaking duty counsel.

The appellate court held that the police satisfied both the informational and implementational components of the right to counsel and that no special circumstances required further inquiry into language preference.

The court also held that the appellant failed to exercise reasonable diligence in raising any alleged difficulty with counsel.

The conviction was therefore upheld and the appeal dismissed.

The plaintiff general contractor brought an action for breach of contract against the defendant subcontractor after the defendant abandoned a hospital construction project.

The court found that the subcontracts incorporated standard construction terms by reference and included both the hospital addition and kitchen renovations.

The court held that the defendant was not entitled to abandon the project and was in breach of contract.

The plaintiff was awarded $372,829.61 in damages for the reasonable costs incurred to complete the defendant's unfinished work.

The applicant and respondent separated after an eight-year marriage.

The court determined child and spousal support obligations.

The court imputed $90,000 of pre-tax corporate income to the applicant under section 18 of the Federal Child Support Guidelines, finding the corporation's retained earnings exceeded its legitimate business needs.

The court ordered the applicant to pay retroactive and ongoing child support based on a shared custody set-off, declining to reduce his obligation based on the respondent's new partner's income.

The court also awarded the respondent compensatory and non-compensatory spousal support of $2,250 per month for a duration of six years from the date of separation, plus retroactive support.

During a trial for sexual offences, the accused applied for a stay of proceedings or a mistrial due to the late disclosure of Facebook messages and two witness statements.

The court found that the Crown and police did not deliberately withhold the evidence.

The accused was provided with the evidence as soon as the Crown became aware of it, and the defence had ample opportunity to cross-examine the witnesses on the new information.

The court dismissed the application, concluding that the accused failed to demonstrate actual prejudice to the right to make full answer and defence, and that less drastic remedies, such as an adjournment, were available but declined by the defence.

The applicant father brought a motion to vary a 2009 child support order under the Interjurisdictional Support Orders Act.

The parties consented to increasing the base child support to $572 per month and changing the annual review date.

The court dismissed the father's request to eliminate his contribution to the child's tutoring expenses, finding they remained necessary extraordinary expenses under s. 7 of the Child Support Guidelines.

The court also declined to order mandatory RESP contributions or require the father to contribute to a potential Girl Guides trip to Europe due to insufficient evidence.

Arrears were fixed at $560.50 and no costs were awarded.

The plaintiff underwent an ambulatory phlebectomy for a varicose vein near her ankle, during which the defendant physician inadvertently removed a 20.5 cm segment of her sural nerve, causing permanent damage.

The plaintiff sued for medical malpractice, alleging negligence in both the recommendation of the procedure and its execution.

The court found that while recommending the procedure met the standard of care, the execution of the procedure was negligent based on circumstantial evidence, including the amount of force required to avulse the nerve and the physician's failure to recognize he had hooked the nerve.

The plaintiff was awarded agreed-upon damages of $128,975.00.

The accused were charged with assault and intimidation of a justice system participant following an altercation in a washroom.

The Crown alleged the assault was retaliation against an informant who was scheduled to testify against a Hells Angels associate.

The court found the primary accused guilty of assault but acquitted him of intimidation, finding reasonable doubt that his specific intent was to impede the informant's duties rather than simply acting out of anger.

The co-accused was acquitted of all charges as the Crown failed to prove he knew of the assault or intended to aid it.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff's action regarding sewer system issues.

The plaintiff conceded its existing claims but sought to amend its statement of claim to add causes of action in negligence and negligent misrepresentation.

The court found that the plaintiff discovered the alleged negligence by late 2003 when it began constructing its own sewage lift station.

The court rejected the plaintiff's argument that the negligence was a continuing cause of action.

As the limitation period had expired, the proposed amendments were statute-barred, constituting non-compensable prejudice.

The motion to amend was denied and the action was dismissed.