J. Laxer

The offender was convicted by a jury of aggravated assault and acquitted of carrying a concealed weapon after stabbing the victim during a bar fight.

The victim was the initial aggressor, punching the offender unprovoked, but the offender retaliated by drawing a knife and stabbing the fleeing victim in the back.

The court found beyond a reasonable doubt that the knife belonged to the offender, despite the mixed verdict.

The court rejected arguments to artificially reduce the sentence to avoid deportation consequences or to grant enhanced credit for harsh jail conditions without evidence.

The offender was sentenced to 3 years' imprisonment, less credit for pre-sentence custody.

The defendants brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike an amended statement of claim alleging negligence, breach of fiduciary duty, intrusion upon seclusion, conspiracy, and breach of contract arising from a fertility clinic nurse’s alleged affair with the plaintiff’s partner during treatment.

The court applied the “plain and obvious” test from R. v. Imperial Tobacco Ltd. and held that several claims disclosed arguable causes of action, particularly those grounded in fiduciary duty, professional negligence, breach of confidence, and privacy.

The court emphasized that novel claims arising in sensitive medical contexts should not be struck where they have a reasonable prospect of success and should instead proceed to trial for full evidentiary assessment.

However, certain allegations relating to the defendants’ failure to investigate or discipline the employee and irrelevant narrative material were struck as disclosing no reasonable cause of action or as scandalous pleadings under Rule 25.11.

The remainder of the motion to strike was dismissed.

Following a civil jury trial dismissing a medical malpractice claim, the successful defendant sought partial indemnity costs exceeding $74,000.

The court assessed costs under Rule 57 of the Rules of Civil Procedure and the principles of fairness, reasonableness, and proportionality articulated by the Court of Appeal.

While the court accepted the reasonableness of senior counsel’s rates and most claimed hours, it reduced mediation costs and limited recovery for junior counsel’s trial preparation and attendance where the work resembled tasks that could have been performed by a law clerk.

The court emphasized that training junior counsel should not be funded by the opposing party through costs awards.

Total costs were fixed at $55,437.84 inclusive of fees, HST, and disbursements.

During a civil medical malpractice jury trial, the plaintiff sought to read portions of the defendant physician’s examination for discovery relating to pre-surgery discussions about the desired breast size following cosmetic surgery.

The defendant requested that additional portions of the discovery transcript also be read in pursuant to Rule 31.11(3) of the Rules of Civil Procedure, arguing they qualified or explained the plaintiff’s selected excerpts.

The court reviewed the purpose and scope of Rule 31.11(3) and the jurisprudence governing qualifying read-ins.

The court held that additional discovery evidence may be compelled where necessary to prevent the trier of fact from being misled by partial admissions or incomplete answers.

Because the additional answers addressed the same issue and could qualify the earlier discovery evidence, the court directed that both sets of questions and answers be read to the jury.