Hugh R. McLean

The appellant, Mohamed Faisal, appealed his conviction for driving over 0.80, arguing a breach of his s. 10(b) Charter right to counsel.

The trial judge found a s. 10(b) breach but admitted the breath sample evidence under s. 24(2) of the Charter, applying the Grant factors.

The appeal challenged the trial judge's s. 24(2) analysis, specifically regarding the consideration of the police officer's problematic testimony and the overall assessment of whether admitting the evidence would bring the administration of justice into disrepute.

The Superior Court of Justice dismissed the appeal, finding no error in the trial judge's holistic consideration of the evidence and the Grant factors, and affirming the deference owed to the trial judge's discretion in s. 24(2) assessments.

This addendum to a January 2022 judgment corrects calculation errors in the original judgment regarding a construction lien claim.

Specifically, the contract price for Boston Pizza was corrected, and two agreed-upon chargebacks were included, changing the judgment amount for Green View Heating & Cooling Inc. to $57,771.41 for that portion of the claim.

The addendum also addresses the matter of costs, awarding the plaintiff $57,000.00 on a partial indemnity basis, apportioned between the Homewood and Boston Pizza claims.

The plaintiff sought an emergency interlocutory injunction against the defendants, who were involved in a protest causing severe noise disturbance in downtown Ottawa.

The defendants' counsel requested an adjournment, citing insufficient time to review extensive materials and prepare a proper defense.

The court, acknowledging the national importance of the matter and the need for a complete record to craft an enforceable *in persona* injunction, granted the adjournment until February 7, 2022.

The judge emphasized the inherent difficulty of framing an enforceable injunction against a large, fluid group of unnamed parties and the equitable requirement for certainty in such orders.

Capcorp Planning (2003) Inc. appealed an assessment of Ontario Sales Tax and a penalty levied by the Minister of Revenue for non-remittance of tax on premiums paid for its extended health care plans.

The central issue was whether these plans, identified as "unfunded benefits plans" under the Retail Sales Tax Act, were exempt from tax because the risks covered could not "otherwise be obtained by taking out a contract of insurance." The court found that the plans were indeed unfunded benefits plans and, based on uncontradicted evidence that purchasers could not obtain alternative health insurance due to pre-existing conditions or other impediments, concluded that the amounts paid were not taxable.

Consequently, the assessment was quashed.

The court also rejected the respondent's arguments regarding the penalty rationale and the due diligence defence.

This decision addresses a costs award and ancillary matters following a jury verdict in a personal injury action.

The jury found the defendants 62% liable, awarding substantial damages for pain and suffering, future care costs, and family law damages.

The court ruled on four key issues: ordering an assignment of accident benefits, limiting the McEwens' personal liability to insurance policy limits due to their bankruptcy, applying a 5% pre-judgment interest rate for non-pecuniary damages (finding the relevant statutory amendment not retrospective), and applying the new statutory deductible of $18,270.00 to the Family Law claim.

Despite the jury verdict exceeding some settlement offers, the court significantly reduced the plaintiffs' requested costs from $795,616.09 to $375,000, citing the plaintiffs' conduct, including late expert reports, changing their position on calling the plaintiff, and engaging in "sharp practice" by attempting to enforce a settlement offer while simultaneously initiating a bad faith claim against an insurer.

Corporate plaintiffs operating heating and air conditioning businesses alleged defamation arising from online reliability ratings published by a consumer organization.

The plaintiffs argued that letter grades assigned under a revised rating system and references to unresolved complaints damaged their business reputations.

The court held that the ratings and accompanying explanations, when read in context of the website’s disclaimers and methodology, would not lower the plaintiffs in the estimation of a reasonable member of the public and therefore were not defamatory.

In any event, the publications would have been protected by qualified privilege and the defence of fair comment.

No malice was established and the action was dismissed.

The defendants brought a motion to compel the plaintiff to attend a further independent psychiatric examination.

The plaintiff had previously attended an examination, but due to an administrative error, was examined by the wrong doctor (the intended doctor's brother).

The plaintiff opposed the motion, arguing that a further examination was unnecessary and would cause him prejudice due to a real risk of harm, as he had a history of suicidal ideation and hospitalizations following previous assessments.

The court found that the further examination was necessary and fair, as the defendants had a right to an expert opinion from a specialist of their choice.

The court ordered the examination to proceed in Ottawa, with the condition that the plaintiff's treating psychiatrist be available immediately afterward to mitigate any risk of harm.

The moving party insurer sought summary judgment dismissing a claim by another insurer seeking indemnity for statutory accident benefits paid to an insured injured in two separate motor vehicle accidents.

The responding insurer alleged that the moving party remained responsible for benefits arising from the earlier accident and should contribute to benefits paid following the second accident.

The motion raised issues concerning the interpretation of the Insurance Act, the Statutory Accident Benefits Schedule, the Disputes Between Insurers regulation, and limitation periods.

The court held that the evidentiary record was insufficient to determine causation between the accidents, the applicability of statutory limitation periods, and whether an equitable cause of action for indemnity existed.

Given the novel legal issues and gaps in the evidentiary record, summary judgment was inappropriate and the matter should proceed to trial.

The plaintiff alleged misuse of a joint bank account by his spouse and conversion of a workplace insurance care payment issued in his name.

The court rejected the claim relating to the spouses’ joint bank account, finding the account was managed consistently with the parties’ longstanding intention that the spouse handle household finances.

However, the court found that the spouse and her parents wrongfully converted a WSIB cheque issued to the plaintiff by concealing the payment and depositing it into an account in the mother’s name.

The defendants’ claim that the funds represented compensation for caregiving services failed due to lack of contractual consideration and the equitable doctrine of clean hands.

Judgment was granted for the amount of the cheque plus modest punitive damages.