D. R. McDermid

The offender was convicted by a jury of sexual interference with a child and related sexual assault conduct involving repeated sexual touching of a young complainant over a period of several weeks.

The court applied the Kienapple principle to enter a conviction for sexual interference and conditionally stay the sexual assault count.

Aggravating factors included the complainant’s young age, the offender’s position of trust as a relative, repeated incidents over an extended period, and the significant psychological harm to the complainant.

After considering the offender’s background, prior unrelated criminal record, and the principles of sentencing under the Criminal Code, the court emphasized denunciation, deterrence, and separation from society.

A penitentiary sentence was imposed along with ancillary orders including DNA, SOIRA registration, weapons prohibition, and restrictions on contact with children.

Following the dismissal of a motion for summary judgment and the granting of a separate motion for security for costs, the court addressed only the costs of the summary judgment motion.

The defendants sought substantial indemnity costs, arguing that the plaintiffs' motion was unreasonable given the extensive evidentiary record and clear factual disputes.

The court found that although the motion was not brought in bad faith, experienced counsel ought to have known it had virtually no chance of success and that bringing it was unreasonable within the meaning of the Rules of Civil Procedure.

Substantial indemnity costs were therefore warranted, though the amount claimed was reduced as excessive.

The court ordered the plaintiffs jointly responsible for the costs award.

Cross-motions were brought in a family law proceeding concerning child support for an adult child allegedly pursuing post-secondary education.

The father sought interim termination of a final child support order, alternatively requesting that payments be held in trust, and also sought security for costs.

The mother sought increased interim support and financial disclosure.

The court held that varying a final support order on an interim basis requires at minimum a prima facie case, clean hands, and evidence of hardship.

Finding no evidence of hardship and noting unresolved factual issues regarding whether the adult child remained a child of the marriage, the court dismissed the father’s motion and declined to determine the status issue on an interim basis.

On a motion for temporary relief in a family law proceeding, the applicant sought temporary child support and spousal support while the respondent sought orders preserving assets, restraining asset depletion, imputing income to the applicant, and determining proportional contribution to extraordinary expenses.

The parties shared joint custody of two children and exercised approximately equal parenting time, requiring determination of child support under s. 9 of the Federal Child Support Guidelines.

The respondent argued that income should be imputed to the applicant due to alleged underemployment and unreported business income.

The court held that the evidentiary record on conflicting affidavits was insufficient to establish intentional underemployment and declined to impute income.

Temporary child support and spousal support were ordered based on the respondent’s current income and the applicant’s reported income, along with asset preservation orders and proportional sharing of future extraordinary expenses.

In a family law proceeding following recent separation, the applicant father sought interim unsupervised access to two children while facing pending criminal charges for assault, sexual assault, and forcible confinement involving the respondent mother.

The mother sought supervised access, citing risks of emotional harm and allegations that the father had attempted to pressure the children and involve them in the criminal proceedings.

The court held that although unsupervised access is generally the norm, the respondent met the onus of demonstrating that supervised access was in the children's best interests on an interim basis.

Supervised parenting time at a neutral access centre was ordered, together with conditions restricting alcohol and discussions of adult issues.

The court also granted the respondent exclusive possession of the matrimonial home and restraining provisions against the father.

The appellant appealed her summary convictions for impaired driving and refusing to provide a breath sample.

She argued the trial judge erred by using her pre-trial silence against her, failing to stay the proceedings due to a destroyed cell bay videotape, and rejecting her defence of involuntary intoxication from mixing prescription drugs with alcohol.

The Superior Court found the trial judge erred in drawing an adverse inference from her silence but applied the curative proviso because the evidence of guilt was overwhelming.

The court also upheld the trial judge's findings that the lost videotape was only marginally relevant and that the appellant had the requisite mens rea.

The appeal was dismissed.

The applicants sought exclusion of marijuana plants seized during execution of a search warrant, arguing the information to obtain (ITO) lacked sufficient grounds and violated s. 8 of the Charter.

The warrant relied primarily on an anonymous Crimestoppers tip alleging marijuana cultivation, corroborated by limited police investigation including database checks, surveillance, and confirmation of background details.

The court held that, considering the totality of the circumstances, the tip contained sufficient detail and the police investigation provided adequate corroboration to establish credibly based probability for issuance of the warrant.

The search and seizure were therefore lawful.

In the alternative, the court held that even if a breach occurred, the evidence would be admissible under s. 24(2) of the Charter.

The accused, charged with producing and possessing marijuana for the purpose of trafficking, applied to exclude evidence obtained from a general warrant and a subsequent CDSA warrant, alleging a breach of his s. 8 Charter rights.

The accused argued the police lacked reasonable grounds for the general warrant and misled the issuing judge.

The court found the investigating officer had reasonable grounds based on a confidential informant's tip corroborated by hydro records and police investigation, and acted in good faith.

The court concluded there was no s. 8 Charter breach and, alternatively, that the evidence would not be excluded under s. 24(2).

The application was dismissed.

Following an application for judgment on a disputed debt, the successful party sought substantial indemnity costs relying on a pre‑litigation offer to settle.

The court held that the offer could not trigger Rule 49 cost consequences because it was made before any proceeding had been commenced.

The court also rejected arguments that cross‑examination provisions governing motions applied to the application.

Applying Rule 57 and the principle of proportionality between the amount in dispute and the costs claimed, the court found the requested costs excessive and awarded reduced partial indemnity costs.

In an estate administration dispute, the court determined liability for costs following earlier reasons criticizing the conduct of the estate trustees.

The trustees had failed for several years to distribute a simple estate despite the assets being liquidated and ready for distribution, instead engaging in mutual blame and obstructive conduct.

The court rejected submissions that the estate should indemnify the trustees’ legal costs, finding that their disregard of fiduciary duties should not diminish the beneficiaries’ shares.

The court therefore ordered the trustees personally responsible for the applicant’s full indemnity costs.

Each trustee was directed to pay one-half of the award, with any shortfall payable personally.

The applicant sought possession of six trailers and damages for conversion.

The respondents had previously sold their trucking company but retained a general security agreement.

When the new company went bankrupt, the respondents instructed a receiver to sell the applicant's trailers, despite knowing the applicant had a prior perfected security interest under the Personal Property Security Act.

The court found the respondents personally liable for conversion, as they acted under their personal security agreement.

Damages were assessed at $129,500, and the respondents' claim for a set-off for storage and maintenance was dismissed.

The appellant appealed a conviction for having care or control of a motor vehicle with a blood alcohol concentration exceeding the legal limit following a single-vehicle incident in which the vehicle came to rest on a snow bank.

The appeal raised numerous alleged errors including lack of reasonable grounds for arrest and breath demand, violations of Charter ss. 8 and 10(b), improper admission of statements, misapprehension of evidence, and insufficiency of reasons.

The court held that the arresting officer had reasonable grounds based on observed indicia of impairment and that the appellant had been properly advised of and declined her right to counsel.

The court also found that any potential misapprehension regarding the vehicle’s speed was peripheral and did not affect the outcome.

The conviction and sentence were therefore affirmed.

The defendants brought a motion seeking an order compelling the plaintiff to undergo an in-home occupational therapy assessment in a personal injury action involving a substantial claim for future care costs.

The plaintiff opposed the motion, arguing that occupational therapists are not “health practitioners” under s. 105(1) of the Courts of Justice Act and that the proposed assessment was not required for diagnostic purposes.

The court reviewed conflicting authorities regarding whether non-medical expert assessments may be ordered only as diagnostic aids or under the court’s inherent jurisdiction in the interests of fairness.

Relying on Divisional Court authority recognizing the court’s inherent jurisdiction, the judge held that the assessment was appropriate to permit an independent evaluation of the plaintiff’s limitations and future care needs.

The motion was granted and the plaintiff was ordered to attend the in-home occupational therapy assessment.

An application was brought under rule 14.05(3) of the Rules of Civil Procedure and ss. 5 and 37 of the Trustee Act seeking the removal of two estate trustees.

The estate had remained undistributed for more than five years despite liquid assets, due to significant conflict and animosity between the co‑trustees which resulted in administrative paralysis.

The court found fault on both sides and concluded that continuation of the trustees would jeopardize the proper execution of the trust and the interests of the beneficiaries.

Both estate trustees were removed and a neutral succeeding estate trustee was appointed.

The former trustees were ordered to pass their accounts within 60 days.

The defendants brought a motion to compel the minor plaintiff to attend for examination for discovery in an action arising from injuries sustained by her mother during a school-organized skating trip.

The minor plaintiff advanced a derivative claim under the Family Law Act for loss of care, guidance and companionship.

The court considered the Rules of Civil Procedure governing discovery of parties under disability and the requirement for a discovery plan.

The litigation guardian had already been examined for discovery and sufficient evidence had been obtained to quantify the minor’s Family Law Act claim.

The court held that requiring the child’s examination was unnecessary and exercised its discretion to dismiss the motion, subject to a condition that the minor not be called as a witness at trial unless the defence is permitted to examine her for discovery.

The defendants brought a motion to enforce a settlement agreement dismissing the plaintiff’s action without costs.

Former counsel for the plaintiff had emailed defence counsel stating he had instructions to accept the defendants’ offer to settle by consenting to dismissal of the action without costs.

The plaintiff later refused to sign a release and denied settling the claim.

The court held that a party is bound by a settlement entered into by their solicitor unless a limitation on the solicitor’s authority was communicated to the opposing party.

Finding that plaintiff’s counsel represented he had instructions to settle and that opposing counsel was entitled to rely on that authority, the court enforced the settlement and dismissed the action.