James E. McNamara

The appellant appealed summary conviction findings of guilt for impaired driving and refusing to provide a breath sample under the Criminal Code.

He argued the trial judge erred in admitting statements to persons in authority, misapprehended the medical evidence regarding a possible concussion, applied unequal scrutiny to defence and Crown evidence, assumed an adversarial role during questioning, and misapplied the credibility framework from R. v. W.(D.).

The appeal judge held that the trial judge correctly applied the voluntariness test and reasonably rejected the medical evidence suggesting the accused’s mind was not operating.

The court further held that the trial judge properly assessed credibility and evidence and that appellate review of factual findings on summary conviction appeal is limited to unreasonable or unsupported findings.

Finding no reversible error, the court upheld the convictions.

The appellant appealed her conviction for operating a motor vehicle with a blood alcohol content over 80 milligrams.

She argued the trial judge erred in dismissing her section 11(b) Charter application for unreasonable delay and in finding that her breath samples were not taken as soon as practicable.

The summary conviction appeal court found no palpable and overriding error in the trial judge's characterization of the delay periods or his conclusion that the prejudice was minimal.

The court also upheld the finding that the breath samples, taken one hour and 36 minutes after the vehicle was stopped, were obtained within a reasonably prompt timeframe.

The appeal was dismissed.

Waterfront property owners sought a declaration that their subdivision lots extended to the water’s edge of the Ottawa River despite a strip of land shown between the lots and the shoreline on a 1931 registered plan.

The defendants, successors in title to the original subdividers, claimed ownership of the strip and argued the plan intentionally reserved the land.

The court found a latent ambiguity in the subdivision plan and admitted extrinsic evidence to determine the intention of the original subdividers.

After reviewing historical surveying practices, expert evidence, and surrounding circumstances, the court concluded the rectilinear boundary on the plan represented an approximation of the high-water mark and that the subdividers believed the intervening land was public.

As the Crown patent extended to the water’s edge and there was no intention to reserve the strip, the lots were held to extend to the water’s edge.

The appellant appealed summary conviction findings of guilt for assault and wilfully obstructing a peace officer.

The principal issue was whether the trial judge failed to provide the minimum level of assistance required to ensure a fair trial for a self‑represented accused.

The appellate court reviewed authorities establishing that trial judges must provide meaningful guidance to unrepresented defendants regarding the trial process, their rights to cross‑examine, testify, and call evidence.

The court found that the trial judge failed to explain the trial process, the elements of the offences, or the risks of testifying, thereby falling below the minimum standard required.

The convictions were set aside and a new trial ordered.

The applicant sought an extension of time to serve and file a notice of appeal from a summary conviction for operating a motor vehicle with a blood alcohol level exceeding 80 mg.

The court applied the three-part test for extensions of time articulated in R. v. Menear, considering whether the applicant demonstrated a bona fide intention to appeal within the appeal period, whether the delay was adequately explained, and whether the proposed appeal had merit.

The court found no evidence that the applicant intended to appeal within the statutory period and held that the delay was inadequately explained.

The proposed grounds of appeal, relating to alleged Charter breaches concerning mouth alcohol and credibility findings at trial, lacked merit.

The application for an extension of time and the companion request for a stay of the driving prohibition were dismissed.

Following a successful Rule 21 motion striking a statement of claim for disclosing no reasonable cause of action, the court determined the appropriate scale and quantum of costs.

The moving defendants sought substantial indemnity costs, arguing that the proceeding duplicated existing litigation and required significant effort to defend.

The court held that elevated costs are generally justified only where Rule 49 offers to settle apply or where the losing party’s conduct warrants sanction.

Finding no such circumstances, the court awarded costs on a partial indemnity basis and reduced the claimed amount after considering proportionality and the reasonableness of more than 240 hours billed for a two‑day motion.

A third party brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike a third party claim for contribution and indemnity on the basis that it disclosed no reasonable cause of action.

The moving party argued that there was no contractual relationship with the defendant in the main action and therefore no basis for liability, and further that the damages claimed were not the same.

The court applied the generous “plain and obvious” test governing motions to strike and reviewed the scope of third party claims under Rule 29.01.

It held that it was arguable the parties owed each other a duty of care in negligence arising from their roles in the same construction project and that the claim could also constitute an independent claim arising from the same transaction.

Because it was not plain and obvious that the claim disclosed no reasonable cause of action, the motion to dismiss the third party claim was refused.

The parties, parents of a four-year-old child, sought final orders regarding custody, access, child support, travel, and the child's name.

The court maintained sole custody with the mother, finding the parents unable to communicate or cooperate.

The father was granted regular access, with pick-ups and drop-offs moved to public locations to reduce conflict.

The father was ordered to pay ongoing child support based on imputed income, with payment of arrears suspended until his income improves.

The court also ordered the child's surname be changed to include the father's surname, exercising its parens patriae jurisdiction.

A law firm sued a departing non-equity partner and his new firm after approximately 60 personal injury contingency files were transferred when the lawyer left the firm.

The plaintiff sought a constructive trust over future contingency fees based on unjust enrichment and breach of fiduciary duty.

The defendants moved for summary judgment dismissing the equitable claims, while the plaintiff sought partial summary judgment for work in progress and disbursements on settled files.

The court held that the unjust enrichment claim raised issues requiring a full trial because contractual documents and statutory arguments did not clearly constitute a juristic reason defeating the claim.

However, the court granted summary judgment dismissing the breach of fiduciary duty allegations, finding no evidentiary basis for the alleged breaches.