Drew S. Gunsolus

The accused was charged with attempting to obstruct justice by persuading a fellow inmate to fabricate evidence for an appeal of prior convictions.

The Crown relied on letters purportedly written by the accused to the inmate.

The defence argued the inmate fabricated the letters to gain favour and applied for a stay of proceedings due to the loss of original letter exhibits from a previous trial.

The court found beyond a reasonable doubt that the accused authored the letters, based on handwriting analysis and the minute details only the accused could know.

The court denied the stay application, finding no unacceptable negligence in the loss of originals and no actual prejudice to the defence, as authenticated photocopies and other evidence were available for a fair trial.

The plaintiff's action for $25 million in damages was dismissed in full against all defendants.

This endorsement addresses the defendants' claims for costs.

The court found the plaintiff's principal, Mr. Lagani, engaged in blameworthy conduct, including misleading the court, intimidating witnesses, and making unsubstantiated allegations of fraud, warranting substantial indemnity costs.

The court declined to award costs against Mr. Lagani personally due to lack of jurisdiction and insufficient notice.

The court also rejected the Berczy Group's claim for equitable set-off against funds owed to the plaintiff, stating set-off cannot be used as a "sword" to proactively claim funds.

Substantial indemnity costs were awarded to all defendants.

The respondents brought a motion to strike the applicants' application.

The court did not strike the application but granted the applicants leave to convert it to an action.

The parties subsequently made written submissions on the costs of the motion.

The applicants argued they should not be subject to costs as they were public interest litigants.

The court rejected this argument, finding the applicants were pursuing a personal pecuniary interest related to their commercial property.

The court awarded costs to the respondents, fixing the amounts at $15,000 plus disbursements for the federal respondents, and $2,500 each for the two municipal respondents.

The accused, Jesse Thomson, faced charges including possession of cocaine for trafficking and various firearm offences.

The trial included a blended voir dire to determine the admissibility of his statements to police and evidence obtained from a vehicle search.

The court found Thomson's statements voluntary and that his Charter rights under sections 8, 9, and 10(b) were not violated, justifying the admission of evidence.

The police had reasonable and probable grounds for arrest and search based on reliable informant tips and corroborating surveillance.

Ultimately, the Crown proved the charges beyond a reasonable doubt, leading to a finding of guilt on all counts.

The applicant brought a motion for leave to appeal a family arbitration award.

The parties had entered into a mediation/arbitration agreement.

After shuttle mediation failed, the arbitrator issued a decision based on information obtained during mediation without holding an arbitration hearing as required by the agreement.

The court found that the failure to hold a hearing where both parties could present and respond to each other's case constituted an error of law.

Leave to appeal was granted.

The plaintiff, catastrophically injured in a motor vehicle accident, sought statutory accident benefits in the form of retrospective attendant care benefits for a period between 2001 and 2006.

The motion asked the court to determine the date from which interest should accrue if those benefits were ultimately found to be payable.

The insurer argued interest could only begin after it received a Form 1 assessment of attendant care needs, relying on appellate authority interpreting the Statutory Accident Benefits Schedule.

The court held that under the applicable 2001 version of the Schedule, interest begins when the insurer had sufficient information to assess entitlement to the benefit, even absent a formal Form 1.

On the facts, the insurer had early knowledge of the claimant’s catastrophic impairments and attendant care needs.

The plaintiff, former president and CEO of the defendant investment management company, sued for constructive dismissal and breach of contract after the employer refused to pay a 10% bonus on a capital gain realized from a real estate joint venture.

The employer counterclaimed, alleging the plaintiff breached his duties by failing to secure an asset management agreement for the project.

The Superior Court of Justice found that the plaintiff was contractually entitled to the bonus, awarding $329,687.00, as the capital gain was not specifically excluded from his employment memorandum.

However, the court dismissed the constructive dismissal claim, finding that the dispute over a one-time bonus calculation did not evince an intention by the employer to no longer be bound by the contract.

The employer's counterclaim was dismissed as entirely without merit, and the plaintiff was granted indemnification for his costs in defending the counterclaim pursuant to a corporate indemnification agreement.

Costs decision following a contempt motion arising from a family law settlement concerning equalization, spousal support, and transfer of the matrimonial home.

The moving party had brought a contempt motion alleging failure to transfer title, but the matter ultimately resolved through further minutes of settlement completing the transaction.

The court held the contempt procedure was inappropriate because enforcement of the settlement should have been pursued instead.

Although the moving party obtained a small payment for cleanup costs, the responding party succeeded in having the settlement enforced and the contempt motion dismissed on consent.

The court ordered the moving party to pay partial costs, applying Rule 24 of the Family Law Rules and proportionality considerations.

The applicant, facing serious criminal charges, brought a Rowbotham application seeking state-funded counsel after being denied Legal Aid.

Legal Aid was denied because the applicant provided misleading financial information, including a claim that he earned $10,000 per week.

The court dismissed the application, finding that the applicant failed to provide credible evidence of his indigence and could not rely on a Legal Aid refusal that he caused through his own misleading conduct.

The dismissal was without prejudice to bringing a more fulsome application.

The appellant appealed a summary conviction for impaired care or control of a motor vehicle under s. 253(1)(a) of the Criminal Code.

He had been found asleep in the driver’s seat of a parked vehicle with the engine running while waiting for a designated driver.

The appeal court held the trial judge misapplied the legal test for care or control by treating the accused’s decision to sleep while waiting as undermining his safety plan.

Applying the principles in R. v. Boudreault and related authorities, the court found there was insufficient evidence of a realistic risk that the accused would set the vehicle in motion or change his intention to drive.

The trial judge’s reasoning improperly criminalized the use of the vehicle for a manifestly innocent purpose.

The plaintiffs brought a motion under Rules 26.02(b) and 5.04(2) of the Rules of Civil Procedure to add an individual as a defendant after the expiry of the two‑year limitation period under the Limitations Act, 2002.

The claim arose from a letter allegedly authored by the proposed defendant accusing the plaintiffs of criminal conduct and demanding their resignation from a religious organization.

The plaintiffs argued they only discovered the individual’s potential liability after the limitation period when the corporate defendant denied responsibility for the conduct of the local council.

The court held that the evidentiary threshold for discoverability at the amendment stage is low and that the plaintiffs had provided a reasonable explanation showing a triable issue regarding due diligence.

The motion to add the proposed defendant was granted with leave for the added defendant to plead a limitations defence.

The appellant sought leave to appeal convictions and sentence arising from allegations that he spat blood on correctional officers during a prison disturbance and uttered a death threat to one officer.

The appeal judge held that the trial judge failed to properly apply the principles from W.D. regarding the assessment of an accused’s evidence and provided inadequate reasons linking accepted facts to the essential elements of assault.

In particular, the reasons did not address whether the spitting was intentional or explain the reliability of the complainants’ evidence in chaotic circumstances.

The conviction for uttering a threat was upheld, but the assault convictions were set aside due to insufficient reasons and improper credibility analysis.

A new trial was ordered on the assault counts.

Following an order dismissing both the action and the counterclaim for delay, the court addressed the issue of costs.

The successful defendant sought partial indemnity costs and disbursements.

The plaintiffs argued that portions of the claimed fees resulted in double compensation for the same court appearance and that the hours claimed were excessive.

The court accepted that costs should follow the event but reduced the amount claimed in light of the circumstances and the parties’ shared responsibility for delay.

Partial indemnity costs and reduced disbursements were awarded to the defendant.

The defendant brought a motion under Rule 24 of the Rules of Civil Procedure to dismiss an action for delay arising from a dispute over the purchase of a yacht allegedly suffering engine defects.

The action had remained largely stagnant for more than a decade after pleadings were closed, with limited discovery activity and no meaningful prosecution by the plaintiffs.

The court held the delay was inordinate and inexcusable and raised a presumption of prejudice that the plaintiffs failed to rebut.

The defendant also demonstrated actual prejudice, including the loss of warranty claims against the engine manufacturer, the bankruptcy of a co-defendant manufacturer, and evidentiary issues arising from faded recollection and lack of preserved expert evidence.

The court dismissed both the claim and the defendant’s counterclaim for delay and, in the alternative, exercised its inherent jurisdiction to control its process.

The defendant property owner brought a motion for summary judgment dismissing an action alleging occupiers’ liability following injuries sustained during a horse‑handling incident on a hobby farm.

The plaintiff alleged that the occupier negligently maintained fencing and gating which allegedly contributed to a horse-related accident.

The court held that the plaintiff failed to identify any act or omission by the occupier that breached the statutory duty under the Occupier’s Liability Act or the Negligence Act.

The evidence showed the fencing and gate were common and properly installed, and the alleged incident arose from the actions of the participants rather than any unsafe condition of the premises.

As no genuine issue requiring a trial was established, summary judgment dismissing the claim against the occupier was granted.

The Attorney General of Canada brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike portions of a statement of claim alleging numerous torts and statutory breaches against the Federal Crown.

The self-represented plaintiff alleged misfeasance in public office, conspiracy, fabrication of evidence, Charter violations, and other wrongs arising from actions of police officers and provincial officials.

The court held that the pleading failed to disclose material facts linking any federal Crown servant to the alleged conduct and improperly attempted to attribute liability to the federal government for actions of provincial actors.

The allegations were found to be vague, speculative, and comprised of bald conclusions without necessary particulars.

The court struck the impugned paragraphs and dismissed the action as against the Attorney General of Canada without leave to amend.

The defendant brought a motion for leave to appeal to the Divisional Court from a status hearing endorsement permitting the action to proceed on a timetable despite a 1.5‑year delay.

The moving party argued that the status hearing judge erred by proceeding without sworn affidavit evidence and by exercising discretion contrary to applicable case law.

The court reviewed the test for leave to appeal an interlocutory order under Rule 62.02(4) of the Rules of Civil Procedure and held that status hearings may properly proceed on oral submissions and do not necessarily require sworn evidence.

The court found no conflicting authority, no good reason to doubt the correctness of the earlier discretionary decision, and no issue of broader public importance.

Leave to appeal was therefore refused.

The Crown applied to remove defence counsel from the record on the basis of an alleged conflict of interest after the lawyer provided brief legal advice to a material Crown witness who was also the accused’s power of attorney.

The witness had contacted the lawyer seeking guidance about police questioning relating to potential obstruction charges.

The court applied the principles governing removal of counsel, including the accused’s fundamental right to counsel of choice and the requirement that counsel be free from disqualifying conflicts.

Finding that no solicitor‑client relationship existed between the lawyer and the witness and that no confidential information had been imparted, the court held that no realistic risk of conflict had been established.

The application was therefore dismissed, although the trial judge retained the ability to impose measures such as independent cross‑examination if necessary.

The plaintiff obtained judgment following a default trial arising from a brutal kidnapping, forcible confinement, sexual assault, aggravated sexual assault, threats, and physical assault.

The court held that the defendant was liable for the intentional tort of battery and under the Victim’s Bill of Rights, relying on the deemed admissions arising from default and the evidentiary record.

The court awarded $225,000 in general and aggravated damages, $75,000 in punitive damages, and substantial indemnity costs of $40,000 plus HST, emphasizing the extreme violence, ongoing psychological harm, and the need for denunciation and deterrence.

Pre-judgment interest on general damages was also ordered at 5% per annum commencing November 5, 2007.

The plaintiff, a 25-year-old university student, was kidnapped, forcibly confined, and sexually assaulted by the defendant, a store clerk, after she entered a health food store.

The defendant was noted in default in this civil action after being convicted criminally and designated a dangerous offender.

The court assessed damages, awarding the plaintiff $225,000 in general and aggravated damages, $75,000 in punitive damages, $827,957 for past and future income loss, and $125,000 for future care costs, plus substantial indemnity costs.