Jamie M. Sanderson

During a civil jury trial, the court addressed a dispute between counsel regarding the form of jury questions on damages.

The plaintiff argued that the jury should only be asked about general, aggravated, and punitive damages, while the defendants submitted that the questions should reflect the damages discussed in the charge, including general, nominal, and contemptuous damages.

The court held that there was no prejudice to the plaintiff in directing the jury to consider the specific types of damages addressed in the charge.

The jury questions would therefore separately reference general, nominal, and contemptuous damages to align with the jury instructions.

During a jury trial in a defamation action arising from statements published by municipal officials, the plaintiff sought a jury instruction permitting an adverse inference from the defendants’ failure to call two municipal officials as witnesses.

The court reviewed the principles governing adverse inference where a party fails to call a witness, including the requirement that the witness be under the exclusive control of the party and that the evidence not be otherwise available.

The court found the witnesses were equally available to both parties and were not under the defendants’ exclusive control.

As a result, the circumstances did not justify the rare step of instructing the jury that an adverse inference could be drawn.

In a defamation action brought by a municipal councillor concerning a statement published by town council and later republished by a newspaper, the plaintiff sought to introduce similar fact evidence relating to a separate defamation action previously commenced and later discontinued by one of the defendants.

The plaintiff argued that the earlier litigation had been characterized as SLAPP litigation and was relevant to establish malice.

The court held that the prior action had minimal probative value in determining whether the impugned statement was defamatory or whether available defences applied.

The court further concluded that admitting the evidence risked sidetracking the jury trial into collateral issues unrelated to the pleadings.

The motion to admit the similar fact evidence was therefore dismissed.

During a defamation trial involving a municipal councillor and the mayor along with other councillors, the plaintiff sought to introduce a report by the municipal Integrity Commissioner into evidence.

The defendants objected to its admissibility.

The court ruled the report inadmissible, finding that it did not meet the necessity and reliability criteria for the principled exception to hearsay.

The court noted that under the Municipal Act, the Integrity Commissioner is not a compellable witness, meaning the defendants would be unable to cross-examine him.

The court concluded that admitting the report would be highly prejudicial and could lead the jury to afford the untested opinion undue weight.

The applicant landlord sought a determination that the tenant was required to contribute to construction cost overruns under two offers to lease for commercial space in a shopping centre.

The agreements provided that the tenant would pay excess hard construction costs above a specified amount per square foot if such costs were approved in advance by the tenant or incurred under approved contracts.

The court held that the tenant’s prior approval of construction contracts or excess costs was a clear condition precedent to any obligation to pay cost overruns.

Because the landlord failed to obtain such approval before construction was completed, the tenant was not liable for any excess costs.

The court also held, obiter, that if liability had arisen, the cost of constructing the underground garage would have been included as part of the hard construction costs.