J. Dawe

The appellant appealed a trial judge's order regarding spousal support, life insurance, occupation rent, and the valuation of net family property.

The Court of Appeal dismissed the appeal, finding no error of law, principle, or palpable and overriding error of fact in the trial judge's assessment of the evidence.

The court also declined to address the issue of pre- and post-judgment interest as it was not raised at trial.

The appellant was convicted of importing opium after drugs were found in his luggage upon returning from India.

He appealed his conviction, arguing the trial judge erred in her jury instructions regarding his unrecorded out-of-court statements to police, the Crown's comments on his right to silence, and the scope of the W.(D.) instruction.

The Court of Appeal dismissed the appeal, finding the jury instructions were functionally adequate, properly cautioned the jury on the right to silence, and correctly conveyed how to apply the burden of proof to the evidence as a whole.

The appellant was convicted of second-degree murder following a fatal stabbing during an altercation.

At trial, he relied on self-defence and the partial defence of provocation.

During deliberations, the jury asked several questions seeking clarification on the elements of provocation, specifically the meaning of 'sudden' and 'sufficient'.

The trial judge's answers failed to adequately clarify the issues and amounted to misdirection regarding what conduct had to be sudden.

The Court of Appeal found the answers deficient, allowed the appeal, and ordered a new trial.

The appellant was convicted of multiple offences, including robbery with a firearm, arising from a home invasion.

The Crown's case relied on circumstantial evidence, including the appellant's DNA on a pry bar left at the scene and his subsequent arrest in a stolen vehicle containing items taken during the robbery.

On appeal, the appellant argued the trial judge misapprehended identification evidence, failed to consider alternative explanations for the DNA evidence, and erred in finding a real firearm was used.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's assessment of the circumstantial evidence was reasonable and the alternative explanations were speculative.

The sentence appeal was also dismissed.

The appellant brought a NAFTA Chapter 11 claim against Mexico, which was dismissed by a three-member arbitration tribunal.

The appellant later discovered that the Mexican-appointed arbitrator had communicated with Mexican officials during the arbitration regarding potential future appointments.

The application judge found a reasonable apprehension of bias but declined to set aside the award, reasoning that the other two arbitrators were impartial.

The Court of Appeal allowed the appeal and set aside the award, holding that a reasonable apprehension of bias concerning one member of a tribunal taints the entire panel and cannot be balanced away as a minor procedural error.

The appellants appealed an order striking their claims against a mortgage brokerage and a lawyer under Rule 21.01.

The Court of Appeal dismissed the appeal regarding the brokerage, finding no factual connection pleaded.

However, the Court allowed the appeal regarding the lawyer, holding that the motion judge erred in finding the lawyer immune from liability for allegedly participating in a fraud while acting on client instructions, and erred in concluding the claim was barred by res judicata without sufficient evidence that the same cause of action was previously argued.

The appellant appealed his convictions for sexual interference, sexual exploitation, sexual assault, and uttering a threat, arguing the trial judge made three errors in the jury charge.

The appellant contended the trial judge failed to provide a Villaroman instruction regarding circumstantial evidence, failed to instruct on a motive to fabricate, and failed to instruct that the accused did not have to explain the complainant's motives.

The Court of Appeal dismissed the appeal, finding that a Villaroman instruction was not required as the case was not wholly or substantially circumstantial, and that the trial judge properly instructed the jury on the burden of proof without reversing it.

The appellant appealed his convictions for firearm-related offences, arguing the trial judge erred in dismissing his Charter challenge to the search warrant for his home.

The appellant contended there were no reasonable grounds to believe the firearm seen in a video would be found in his home or car.

The Court of Appeal dismissed the appeal, holding that the issuing justice could reasonably infer as a matter of common sense that the appellant would store the firearm in a comparatively private location like his home or car, given he did not know he had been videotaped with it four days earlier.

The appellant was convicted of manslaughter for acting as the getaway driver in a premeditated murder-for-hire plot.

He was sentenced to nine and a half years' imprisonment.

On appeal, he argued the sentencing judge erred in finding he was aware the shooter had a gun and that the sentence was unfit.

The Court of Appeal dismissed the appeal, finding the sentencing judge's factual conclusions were supported by the evidence and consistent with the jury's verdict.

The sentence was held to be fit given the appellant's significant moral culpability and the premeditated nature of the offence.

The appellant appealed his conviction and three-year sentence for sexual assault.

The trial judge found that the complainant was extremely intoxicated and incapable of consenting, relying on circumstantial evidence including the complainant's state when awoken and the presence of the appellant's DNA.

The Court of Appeal dismissed the conviction appeal, finding the verdict reasonable and the trial judge's use of common sense inferences appropriate.

The sentence appeal was also dismissed, as the three-year sentence fell within the established range for sexual assault involving forced penetration, regardless of whether the victim was awake or sleeping.

The appellant was convicted by a jury of assault and sexual assault against his former romantic partner and sentenced to three years' imprisonment.

On appeal, the appellant argued the trial judge erred by admitting a screenshot of a text message exchange without independent authentication and by failing to give adequate limiting instructions to the jury regarding its reliability.

The appellant also appealed his sentence, arguing the trial judge failed to give sufficient weight to Gladue and Morris factors relating to his Black and Indigenous ancestry.

The Court of Appeal dismissed the conviction appeal, finding the complainant's testimony was sufficient to authenticate the screenshot and the jury instructions were adequate.

The sentence appeal was also dismissed, as the trial judge made no error in principle in weighing the mitigating factors against the gravity of the offences.

The plaintiff brought a refusals motion to compel a representative of the defendant developer to answer discovery questions about whether other purchasers had complained of being misled into buying semi-detached homes instead of detached homes.

The court found the questions relevant to the plaintiff's claims of misrepresentation and unilateral mistake, as the existence of similar complaints would make her claim more likely to be true and could shed light on the defendant's knowledge.

The motion was granted, and the defendant was ordered to answer the questions.

The offender, a youthful first offender, was found guilty of receiving a material benefit from the sexual services of three women over a ten-month period.

The Crown sought a three-year custodial sentence, while the defence sought a conditional sentence of two years less a day.

The court found that while the offence was serious and inherently exploitative, it did not involve violence, coercion, or underage complainants.

Emphasizing the principles of individual deterrence and rehabilitation for youthful first offenders, the court imposed a conditional sentence of two years less a day, to be served under house arrest, followed by 18 months of probation.

The defendants brought a motion to strike the plaintiff's amended statement of claim, which sought damages for trespass, nuisance, intentional infliction of mental suffering, and harassment arising from a neighbour dispute.

The court struck the novel claim for harassment without leave to amend, finding no realistic prospect that such a tort would be recognized in this context.

The court also struck a claim for damages related to a hypothetical future move as frivolous.

However, the court declined to strike the entirety of the claims for trespass, nuisance, and intentional infliction of mental suffering, finding it was not plain and obvious that they would fail, particularly given the suspension of limitation periods during the COVID-19 pandemic.

The motion was granted in part.

The plaintiff slipped and fell on an icy sidewalk in December 2016 and sued the municipality and builder in October 2018.

In the fall of 2019, the plaintiff learned the municipality had hired a private winter maintenance contractor and commenced a separate action against the contractor in December 2019.

The contractor moved for summary judgment, arguing the claim was statute-barred by the two-year limitation period.

The court dismissed the motion, finding the contractor failed to meet its initial burden of showing that a reasonable person in the plaintiff's position ought to have discovered the claim against the contractor more than two years before the action was commenced.

The appellant appealed two summary convictions: one for breaching a bail recognizance and another for breaching a probation order.

Both charges stemmed from the appellant posting the names of criminal complainants on his blog.

The Superior Court allowed the appeal against the bail breach conviction, finding the trial judge erred by not applying the subjective mens rea standard established in R. v. Zora, and ordered a new trial.

However, the court dismissed the appeal against the probation breach conviction, holding that the appellant was barred from collaterally attacking the probation order and failed to provide evidence that his guilty plea was involuntary or uninformed.

Following a previous ruling referring their dispute over a failed new home purchase to arbitration, the parties were unable to agree on an arbitrator.

The moving parties brought a motion in writing to have the court appoint their preferred candidate, Mr. Richler, citing his lower fees and capped costs.

The responding party failed to respond to the motion.

The court exercised its power under section 10 of the Arbitration Act to appoint Mr. Richler, conditional on his continued willingness to accept the appointment.

The accused was arrested without a warrant for drug trafficking following a confidential informant tip and several days of police surveillance.

Searches incident to arrest, including a strip search at the police station, yielded a loaded handgun, cash, and drugs.

The accused brought a Charter application alleging violations of his ss. 8 and 9 rights, arguing the police lacked reasonable grounds for the arrest.

The court dismissed the application, finding that the totality of the circumstances, including the corroborated tip and surveillance observations, provided objectively reasonable grounds for the arrest and subsequent searches.

The plaintiff bank brought a motion for summary judgment against the defendant guarantor for a corporate debt.

The defendant denied signing the guarantee and alternatively pleaded undue influence by her husband.

The court dismissed the motion, finding the bank failed to provide a proper evidential foundation.

The bank relied on affidavits from an employee with no personal knowledge, appending hearsay documents without establishing their admissibility.

The court held there were genuine issues for trial regarding the authenticity of the guarantee and whether the bank took reasonable steps to rebut the presumption of undue influence.

The appellant was convicted of refusing to provide a breath sample.

He appealed, arguing his s. 10(b) Charter rights were breached when police failed to make reasonable efforts to contact his counsel of choice and compelled him to provide a breath sample without clearly advising him of time limits or options to find other private counsel.

The Superior Court of Justice allowed the appeal, finding that the police failed to adequately carry out their implementational duties under s. 10(b) by not checking the lawyer's website for an after-hours number and by not properly informing the appellant of his options.

The conviction was quashed and an acquittal entered.