G. Valin

The Crown appealed the acquittal of the respondent on a charge of driving over 80 mg of alcohol.

The trial judge erred in law by failing to apply the common sense inference against bolus drinking and the practical evidentiary burden on the respondent when breath samples were taken more than two hours after the alleged offence, despite finding no evidence of bolus drinking.

The appeal was allowed, the acquittal set aside, and the matter remitted for a new trial.

This endorsement addresses the costs arising from a dismissed motion for summary judgment.

The defendants, who were the applicants on the summary judgment motion, sought to dismiss the plaintiffs' claim and obtain judgment on their counterclaim.

The motion was dismissed on the grounds that the statement of defence and counterclaim was a nullity.

The plaintiffs, as the successful party in defending the motion, sought costs on a substantial indemnity basis and an order for costs payable personally by the defendants' solicitor.

The court awarded partial indemnity costs to the plaintiffs, fixed at $15,000, inclusive of disbursements and HST, payable by the defendants.

The request for substantial indemnity costs and personal costs against the solicitor was denied, as the court found no reprehensible conduct or dereliction of duty warranting such exceptional orders.

The accused, Takin Lahmi, sought a bail review after being detained by a justice of the peace primarily on tertiary and secondary grounds following charges including impaired operation and various firearm offences.

The Superior Court found that the justice of the peace erred in principle and law by misapplying the secondary ground, as the accused had no criminal record or history of breaching undertakings.

Furthermore, the justice of the peace misapplied the tertiary ground by automatically detaining the accused based on the four circumstances in s. 515(10)(c) of the Criminal Code, contrary to the holistic approach mandated by R. v. St. Cloud.

The Crown's subsequent election to proceed summarily significantly reduced the potential sentence and gravity of the offences, further undermining the tertiary ground for detention.

The court concluded that detention was not justified to maintain confidence in the administration of justice and ordered the accused's release on a recognizance with cash deposits and strict conditions.

The accused was charged with dangerous operation of a motor vehicle causing death after his truck collided with a snowmobile driven by his cousin on a rural road.

The Crown alleged the accused and the deceased were engaged in a race.

The court found that the accused was driving below the speed limit, had abandoned any thought of a race due to poor traction, and took immediate evasive action when he unexpectedly encountered the deceased stopped in the middle of the road.

The court concluded the Crown failed to prove beyond a reasonable doubt that the accused's driving was objectively dangerous or a marked departure from the standard of a reasonably prudent driver.

The accused was acquitted.

The plaintiff brought an occupiers’ liability action after suffering a fractured navicular bone when she unknowingly stepped off a single step on a crowded outdoor patio at a pub.

The court found the step created a foreseeable hazard because the change in elevation was not visually discernible due to uniform decking colour, poor lighting, and lack of warning markings or visual cues.

The occupier breached its statutory duty under the Occupiers’ Liability Act by failing to take reasonable steps to make the premises reasonably safe.

The court rejected the defence of contributory negligence, finding the plaintiff had no reason to anticipate the step and a momentary glance at a friend did not constitute inattention.

Damages were awarded for pain and suffering, special damages, loss of earning capacity, and future care costs.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiffs' claim for rent arrears and for judgment on their counterclaim for rescission of a franchise agreement.

One of the defendants made an assignment in bankruptcy before the statement of defence and counterclaim was issued.

The court found that the counterclaim vested in the trustee in bankruptcy under section 71 of the Bankruptcy and Insolvency Act, rendering the statement of defence and counterclaim a nullity.

The court declined to cure the nullity, noting the bankrupt defendant had intentionally destroyed business records.

The motion for summary judgment was dismissed.

The applicant sought a declaration that a laneway crossing his property was a private road and an injunction to prevent the respondent municipality from interfering with his use of it.

The municipality argued the road was a public highway and that the applicant was barred from relitigating the issue due to a prior Small Claims Court decision dismissing his trespass claim.

The Superior Court of Justice held that issue estoppel applied, barring the application.

In the alternative, the court found that the road had become a public highway through historical dedication and acceptance by public use and municipal maintenance.

The application was dismissed.

Following dismissal of a motion seeking removal of the plaintiff’s counsel from the record and allegations impugning counsel’s professional integrity, the plaintiff sought costs of the motion.

The defendant argued the court was functus and that costs were disproportionate.

The court rejected those arguments, holding that the earlier endorsement expressly contemplated a later determination of costs.

Given that the motion alleged serious misconduct against opposing counsel without evidentiary foundation, the court held that substantial indemnity costs were warranted as a punitive response.

Costs were fixed on a substantial indemnity basis in the amount of $50,537.03.

The accused applied for certiorari to quash an order of a provincial court judge directing defence counsel to bring a motion to disqualify Crown counsel after the defence indicated it intended to call the prosecutor as a witness at a preliminary hearing.

The Superior Court held that the Ontario Court of Justice judge lacked jurisdiction when making the order because he was sitting in remand court and not acting as a preliminary hearing judge, trial judge, or case management judge.

The court further found that the order denied the accused procedural fairness and interfered with the right to make full answer and defence by preventing the accused from seeking a subpoena for opposing counsel.

The order was therefore beyond jurisdiction and contrary to principles of natural justice.

The Crown appealed acquittals on two assault counts arising from incidents at a bar involving an on-duty police officer and two complainants with whom he had prior relationships.

The trial judge found that although some touching occurred, there was no intent to assault and alternatively applied the de minimis doctrine.

The appellate court held that the trial judge erred in law by requiring a specific intent to assault rather than the statutory requirement of intentional application of force without consent under s. 265(1)(a) of the Criminal Code.

The court also found error in applying the de minimis principle to conduct involving intentional non-consensual touching, particularly given the respondent’s position of authority.

The acquittals on the two counts were set aside and a new trial was ordered before a different judge.

The appellant appealed a decision of the Consent and Capacity Review Board confirming her treating physician's finding that she was incapable of consenting to treatment with anti-psychotic medications.

The Board found that while the appellant could understand the relevant information, her delusions prevented her from appreciating the reasonably foreseeable consequences of a decision or lack of decision about the treatment.

The Superior Court of Justice applied the reasonableness standard of review and dismissed the appeal, finding the Board's conclusion was defensible in respect of the facts and the law.

The accused applied for a change of venue for a new jury trial after her previous conviction for second degree murder was set aside and a new trial ordered.

Both the defence and the Crown agreed that a change of venue from the original judicial district was necessary due to extensive media publicity surrounding the case.

The dispute concerned the appropriate venue, with the accused seeking either Pembroke or Ottawa while the Crown proposed Sudbury.

The court weighed factors including witness convenience, community impartiality, the accused’s financial hardship, and trial scheduling.

Balancing these considerations, the court held that the interests of justice favoured transferring the trial to Ottawa.