James E. McNamara

The Crown appealed an acquittal for operating a motor vehicle with blood alcohol exceeding 80 mg under the Criminal Code.

The trial judge had found no reasonable suspicion to justify a roadside screening demand under s. 254(2) and concluded the demand was not made forthwith, resulting in exclusion of evidence under s. 24(2) of the Charter.

The appeal court held that the odour of alcohol detected by the officer in the cruiser was sufficient to establish reasonable suspicion and that the four‑minute delay between forming suspicion and making the demand satisfied the “forthwith” requirement.

The trial judge erred in calculating delay from the time of the traffic stop rather than from the formation of reasonable suspicion.

Because the record did not include a final determination on the blood‑alcohol element and was incomplete, the appropriate remedy was a new trial.

The appellant appealed a summary conviction for having care and control of a motor vehicle while his blood alcohol concentration exceeded 80 mg per 100 mL, contrary to the Criminal Code.

The conviction arose after police responded to an anonymous tip, observed the appellant returning from a beer store to his truck with the keys in his possession, and later obtained breath samples well above the legal limit.

The appellant argued the trial judge erred in finding care and control and that his Charter rights under ss. 8 and 9 were violated.

The appeal court held that the trial judge reasonably inferred an intentional course of conduct creating a realistic risk the vehicle would be put in motion and that no unlawful detention or improper grounds for the breath demand were established.

The appeal was dismissed.

An insurer sought a determination whether an insured’s injury constituted an “accident” within the meaning of s. 3(1) of the Statutory Accident Benefits Schedule under the Insurance Act.

The insured tripped over a curb in his residential parking garage after parking his vehicle and exiting it to wash it.

Applying the two-part test from appellate jurisprudence, the court considered whether the incident arose from the use or operation of an automobile and whether that use directly caused the impairment.

The court held that the vehicle was not being used or operated at the time of the incident and that the injury resulted from an intervening act unrelated to the vehicle.

Accordingly, the incident did not constitute an “accident” under the Schedule and the insured was not entitled to statutory accident benefits.

The defendants brought a motion under Rule 21.01 to strike the plaintiff’s action on the basis that it disclosed no reasonable cause of action, that the court lacked jurisdiction because the dispute was academic in nature, and that the Notice of Action was a nullity.

The plaintiff alleged defamation and negligence arising from allegedly false reports made by a fellow student to university protection services and the university’s subsequent publication of those allegations.

The court held that it was not plain and obvious the court lacked jurisdiction, as the claim concerned torts rather than internal academic decisions.

The court further found the defamation claim was arguable on the pleadings and that the Notice of Action sufficiently identified the nature of the claim.

The motion to strike was dismissed and the plaintiff was granted leave to amend the Statement of Claim.

Following a prior motion decision, the court addressed written submissions on costs.

The applicant sought costs of both the motion and an earlier assessment before an Assessment Officer.

The court declined to determine the costs of the earlier assessment, holding that such submissions should have been made to the Assessment Officer who conducted the hearing.

Exercising discretion under s. 131 of the Courts of Justice Act and considering the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court found the applicant entitled to costs of the motion.

Partial indemnity costs of $7,992 plus HST and disbursements were awarded as fair, reasonable, and proportionate.

Following a seven‑day civil trial in which the plaintiffs obtained declaratory relief, the court was required to determine the scale and quantum of costs.

The plaintiffs argued that a pre‑trial Offer to Settle triggered Rule 49.10 of the Rules of Civil Procedure and sought partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The court held that the offer did not clearly correspond to the judgment obtained and therefore did not justify elevated costs.

Costs were fixed on a partial indemnity basis, with the court reducing the claimed hours as excessive and applying a regional benchmark of approximately 60 percent of counsel’s actual hourly rates.

Following a motion in a family law proceeding concerning compliance with an equalization payment ordered at trial, the court addressed the issue of costs.

A prior order had directed that a reference be conducted after the respondent’s discharge from bankruptcy to determine the unpaid value of any net equalization payment, but neither party had arranged the reference.

The court ordered that the reference proceed because the determination of the outstanding equalization payment would resolve most issues and clarify which party had been successful.

In the circumstances, the court exercised its discretion to defer the determination of costs until after the reference was completed.

The applicant brought a motion seeking imputation of income to the respondent, retroactive spousal support, variation of an existing spousal support order, recalculation of equalization, and continuation of medical benefits.

The dispute centred on whether the respondent had failed to pay a previously ordered equalization payment and whether a bankruptcy filing affected that obligation.

The court noted that a prior order required a reference to determine the unpaid equalization amount but that the reference had never been conducted.

Given unresolved factual disputes and credibility issues, the court held that these matters required determination through the ordered reference or mediation.

Interim spousal support and continuation of medical benefits were ordered pending resolution, subject to potential credit if no entitlement ultimately exists.

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 a conviction for operating a motor vehicle with a blood alcohol concentration over 80 mg, arguing that the trial judge erred in dismissing a s. 11(b) Charter application and in finding that breath samples were taken as soon as practicable.

The Superior Court reviewed the delay analysis under the framework in R. v. Morin and found no error in the trial judge’s characterization of certain periods of delay as neutral rather than institutional.

The court held that the findings of minimal prejudice to the accused and the balancing of societal interests against the delay were reasonable and supported by the evidence.

The court also upheld the trial judge’s conclusion that the breath samples were taken within a reasonably prompt timeframe under the circumstances.

The conviction was therefore affirmed.

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.

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.