Gordon D. Lemon

The applicant father brought a motion to change a final order that granted custody of the children to the respondent mother, seeking sole custody and primary residence.

The father alleged that the mother's parenting was deficient and that the children wished to live with him.

The court found no material change in circumstances, noting that the ongoing high conflict was primarily driven by the father's abusive and denigrating conduct towards the mother.

The court held that a change in custody was not in the children's best interests and dismissed the motion, leaving the original custody and access order in place.

The defendant Aviva General Insurance Company brought a motion seeking to amend its Statement of Defence and compel the plaintiffs, Johanna Van Dijk-Alac and John Alac, to attend various defence medical examinations.

The plaintiffs claimed psychiatric, neuropsychological, and physical injuries from a motor vehicle accident, and Mr. Alac claimed for lost guidance, care, and companionship.

The court granted Aviva leave to amend its Statement of Defence.

It ordered Ms. Van Dijk-Alac to attend psychiatric and neuropsychological examinations, and Mr. Alac to be available to the psychiatrist for collateral information, but denied Aviva the discretion to unilaterally change experts or pre-determine the number of examination sessions.

The court also denied Aviva's request to be relieved of its obligation to serve expert reports prior to the pre-trial.

The plaintiff vendor sued the defendant purchaser for damages after the purchaser failed to close a real estate transaction for a newly built home.

The purchaser argued she was pressured into signing the agreement by a real estate agent she believed represented the vendor, and that the vendor failed to mitigate its damages.

The court found that the agent acted for the purchaser, not the vendor, and that no undue pressure was applied.

The court also held that the vendor took reasonable steps to mitigate its losses by reselling the property in a declining market.

Judgment was granted in favour of the plaintiff for $194,155.60.

The applicant tenant sought relief from forfeiture after being locked out of its banquet hall business by the respondent landlord due to rent arrears accumulated during the COVID-19 pandemic.

The court found that the landlord had lulled the tenant into believing rent was reduced or in abeyance, and that the landlord's re-entry on October 19, 2020, violated the Protecting Small Businesses Act, 2020.

The court granted the application, ordering the landlord to restore possession and granting the tenant relief from forfeiture.

Following the dismissal of the plaintiff's action on a motion for summary judgment, the successful defendants sought costs of $26,814.39 against the plaintiff and his lawyer on a joint and several basis.

The court awarded the requested amount against the plaintiff on a substantial indemnity basis due to the claim being without merit and pursued for delay.

However, the court declined to order costs personally against the plaintiff's lawyer, finding no bad faith or deliberate malicious behaviour.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action, which alleged fraud regarding corporate shares and sought damages.

The court found that the plaintiff's claim was statute-barred under the Limitations Act, 2002, as the material facts upon which the claim was based were discovered by February 2017, more than two years before the action was commenced in April 2020.

The court applied the discoverability principle and the summary judgment framework, concluding there was no genuine issue requiring a trial.

The motion for summary judgment was granted, and the action was dismissed.

The accused, a practitioner of Traditional Chinese Medicine, was charged with sexually assaulting a patient during an internal examination in 2004 or 2005.

The Crown alleged the examination was not a legitimate medical practice and that the complainant's consent was vitiated by fraud.

The court admitted expert evidence on Traditional Chinese Medicine but found it insufficient to prove beyond a reasonable doubt that the accused's actions fell outside the unregulated practices of the time or that he knowingly breached provincial regulations.

The accused was acquitted.

The court addressed a joint request from the Crown and defence for a ruling on the authority to conduct a criminal trial virtually via Zoom, allowing the accused to participate remotely.

The court found it had jurisdiction under s. 650(2)(b) of the Criminal Code, in conjunction with ss. 715.22-715.24, to permit the accused's absence from the physical courtroom under proper conditions, especially given the accused was represented by counsel and had provided a clear waiver.

The decision distinguished conflicting lower court jurisprudence regarding virtual appearances for self-represented versus represented accused and for pleas versus trials.

The parties, joint custodians of their daughter Q, sought urgent orders regarding parenting time during the COVID-19 pandemic.

The applicant father sought equal shared time, while the respondent mother sought to enforce the existing alternating weekend schedule and amend the order.

The court found that the child was not "in school" for the purpose of the existing order's alternating weekend clause, and that the existing schedule unduly restricted the child's time with the father.

The court dismissed both parties' requests for wholesale amendments to the order, but temporarily suspended the alternating weekend schedule, implementing a 4-day alternating schedule until schools reopen or the father returns to work.

The defendant sought a review of his detention order, arguing errors by the Justice of the Peace and a material change in circumstances due to a revised release plan and the COVID-19 pandemic.

The court found a material change in circumstances, allowing for review, but ultimately dismissed the application.

The proposed release plan was deemed insufficient to mitigate the substantial risk of reoffending on the secondary ground and to maintain confidence in the administration of justice on the tertiary ground, despite the pandemic.

The accused was tried on multiple historical sexual offence charges and a voyeurism charge arising from allegations by his stepdaughter over a lengthy period.

The court reviewed the complainant's evidence, the accused's denial, corroborative and contradictory family evidence, and the law governing reasonable doubt, delayed disclosure, and assessment of an accused's testimony.

While some details of the complainant's evidence were compelling, the court found central aspects of the allegations fundamentally incredible when considered against the totality of the evidence and the surrounding circumstances.

The defence evidence raised a reasonable doubt, and the Crown failed to prove any count beyond a reasonable doubt.

The offender was convicted of dangerous driving causing death after attempting to pass a vehicle on a hill, resulting in a head-on collision that killed the oncoming driver.

The offender absconded to India prior to sentencing, and the court proceeded in absentia.

Emphasizing denunciation and deterrence, the court sentenced the offender to two years in custody and a 10-year driving prohibition.

The applicant sought a ruling to exclude evidence obtained from a motor vehicle's "Infotainment system" arguing that police searches violated sections 7 and 8 of the Canadian Charter of Rights and Freedoms.

The court found that a warrantless search and a failure to make a return to a justice constituted Charter breaches.

However, the court determined that the search warrant itself was validly issued.

Applying the R. v. Grant factors, the court concluded that the seriousness of the breaches was moderate, the impact on the applicant's privacy interests was limited, and society's interest in adjudicating the case on its merits was strong due to the reliability and importance of the evidence.

Consequently, the admission of the evidence would not bring the administration of justice into disrepute, and the application to exclude the evidence was dismissed.

During a jury trial for first-degree murder, the Crown sought to introduce cell tower evidence showing the accused's phone was turned off or disconnected on several dates prior to the shooting, matching the pattern on the day of the murder.

The defence objected, arguing the evidence was speculative.

The court held that the evidence was not admissible to prove the identity of the shooter, as its prejudicial effect outweighed its probative value for that purpose.

However, the court ruled the evidence was admissible as circumstantial evidence of planning and deliberation, provided the jury first found the accused was the shooter.

In a first-degree murder trial, the defence objected to the admissibility of various Crown documents (hotel records, telephone records, BC police surveillance) and sought a ruling to prevent the Crown from presenting its proposed theory of liability to the jury.

The court applied the probative value versus prejudicial effect balancing test and found most of the disputed evidence admissible, as it collectively supported the Crown's theory connecting the accused to the vehicle used in the killing and to co-conspirators.

However, Air Canada records related to the victim's travel were deemed inadmissible due to speculative relevance.

The defence's broader objection to the Crown's theory of liability was adjourned as premature, and the court affirmed that the jury could compare handwriting samples without expert testimony, provided proper instructions are given.

This ruling addresses the admissibility of photographic and video evidence against the accused, Raja Dosanjh, in a first-degree murder trial.

The defence objected to four photographs and one video.

The court applied the probative value versus prejudicial effect test, excluding one photograph (Exhibit 'A') due to its high prejudicial value outweighing its low probative value.

Three other photographs (Exhibit 'B') and one video (Exhibit 'C') were deemed admissible as circumstantial evidence related to identification, height, and mannerisms, with appropriate jury cautions to mitigate prejudice.

This ruling addresses the admissibility of expert evidence in a first-degree murder trial, building upon a previous decision.

The court assessed the qualifications and proposed opinion evidence of several Crown experts: Jeremy Dupuis (forensic computer and digital analysis), Dr. Elena Bulakhtina (postmortem examination, adopting conclusions of the deceased Dr. John Fernandes), D/Cst.

Greg Kaut (phone analysis), and Mr. Beatty (functionality of BlackBerry phones).

The court found all experts qualified and their opinion evidence admissible, with counsel agreeing to redact inadmissible portions of the postmortem report for the jury.

In a first-degree murder trial, the Crown sought a pre-trial ruling to admit ante-mortem hearsay statements and evidence of the deceased's past drug dealing to establish motive for a professional killing.

The defence argued the evidence was irrelevant, lacking a nexus between the deceased's background and the accused, and that motive was not a required element to prove.

The court dismissed the Crown's application, finding the proposed evidence irrelevant to the issue of identity and highly prejudicial, as it would invite the jury to speculate without a direct connection to the accused.

The Crown sought to use the phrase "professional killing" in its opening and closing addresses to the jury in a first-degree murder trial, arguing it was an "umbrella term" supported by circumstantial evidence of planning and coordination.

The defence objected, arguing the phrase was prejudicial, irrelevant, and would lead to improper propensity reasoning, especially as the accused had no prior record and was not charged with criminal organization involvement.

The court found the phrase irrelevant and potentially irreparably prejudicial without an evidentiary basis at the opening stage, prohibiting its use in the Crown's opening address but allowing for reconsideration before closing arguments.

This ruling addresses the admissibility of various PowerPoint slides the Crown sought to use during a criminal trial.

The defence objected to specific elements, including a label on a DNA evidence slide implying a warrant was necessary, the relevance of an arrest photo taken a year after the alleged offence, and the potential for opinion evidence from an officer using video stills.

The court ruled that the DNA slide must be edited to remove the warrant reference, the arrest photo was admissible given the significance of identification, and the video stills were admissible provided prejudicial labels were removed and witness testimony avoided improper opinion.