J.S. Fregeau

The plaintiffs sought leave to appeal an order dismissing their motion for leave to examine a non-party treating chiropractor for discovery under Rule 31.10 of the Rules of Civil Procedure, as well as leave to appeal a substantial indemnity costs award arising from that motion.

The underlying action alleged chiropractic negligence for performing cervical spine adjustments contrary to a chart notation prohibiting such adjustments.

The motions judge had found that the non-party had already provided the relevant information about the timing of the chart notation and that the plaintiffs’ attempt to question why the notation was made was beyond the scope of the pleaded issues.

The court held that the plaintiffs failed to establish good reason to doubt the correctness of the order or that the proposed appeal raised issues of sufficient importance under Rule 62.02(4)(b).

Leave to appeal both the substantive decision and the costs award was denied.

The appellant appealed a summary conviction for assaulting a peace officer contrary to s. 270(1)(a) of the Criminal Code.

The appeal challenged findings that the police officer had been invited into the residence, had no legal obligation to state the purpose of attendance before entry, and was lawfully executing his duties when arresting individuals for trespassing.

The appellant also argued that the Trespass to Property Act did not apply on reserve lands and that the officer’s authority ended once consent to remain was withdrawn.

The court held that the officer had been invited into the home, that no legal requirement existed to disclose the purpose of attendance before entry, and that the Trespass to Property Act applied as provincial legislation of general application.

Finding no palpable and overriding error or legal error, the court dismissed the appeal.

The accused applied under ss. 278.1–278.5 of the Criminal Code for production of third‑party records in a historical sexual assault prosecution.

The records sought included a school social worker’s notes of the complainant’s initial disclosure, records of counselling sessions with that social worker, and records from a children’s counselling centre.

The court applied the “likely relevance” and “interests of justice” test from the Criminal Code and relevant Supreme Court authorities, balancing the accused’s right to make full answer and defence against the complainant’s privacy interests.

The court ordered production to the court for review of the school social worker’s notes of the initial disclosure, limited counselling information (dates, duration, and type), and any counselling records containing a factual account of the allegations.

The request for broader counselling information from the Children’s Centre was denied.

The plaintiff First Nations sought a declaration that a two-chain strip of land along the shores of Rainy Lake and Rainy River formed part of the Agency One Reserve, created pursuant to Treaty #3.

The court reviewed extensive historical, ethnohistorical, and surveying evidence regarding the creation of the reserve in the 1870s.

The court found that the Crown intended to exclude the two-chain allowance from the reserve to accommodate the Dawson Route and the developing forestry industry.

The court further held that this exclusion did not breach the Crown's fiduciary duty or the honour of the Crown, as the Ojibway retained access to the shoreline and no express promise had been made to include it.

The plaintiffs' claims were dismissed.

The accused was charged with two counts of sexual assault against a friend of his daughter.

The Crown conceded there was insufficient evidence for one count, resulting in an acquittal.

On the remaining count, the complainant alleged the accused provided her with alcohol until she was highly intoxicated and then sexually assaulted her at his camp.

The accused denied the allegations.

Applying the W. (D.) framework for assessing credibility, the trial judge found the complainant's evidence problematic and contradicted by the agreed statement of facts from the accused's daughter.

The court concluded the Crown failed to prove guilt beyond a reasonable doubt and acquitted the accused.

Following an application under the Partition Act for the sale of a jointly owned property, the parties resolved the substantive issues and sought a determination on costs.

The applicant sought costs from the date she first demanded a sale, arguing the respondent's initial failure to respond necessitated the litigation.

The court awarded the applicant $7,500 in costs for the period prior to the respondent retaining counsel, finding the respondent's intransigence caused unnecessary litigation.

For the period after the respondent retained counsel, the court ordered the parties to bear their own costs, save for $550 awarded to the respondent for reviewing real estate documents.

The applicant sought a divorce, retroactive spousal support, and an unequal division of net family property in an uncontested hearing.

The respondent did not appear.

The court granted the divorce and ordered retroactive spousal support based on the parties' actual incomes, declining to impute income to the respondent for periods he was on unpaid sick leave due to alcohol dependency.

The court ordered the immediate sale of the jointly owned matrimonial home and a division of the respondent's pension at source.

The court also ordered an unequal division of net family property under s. 5(6)(h) of the Family Law Act, finding it would be unconscionable to require the applicant to pay an equalization payment after she depleted her RRSPs to maintain the matrimonial home.

The defendant, charged with sexual assault, applied for a stay of proceedings due to the police losing an audio tape of the complainant's initial statement.

The court found the loss was due to unacceptable negligence but dismissed the stay application, concluding the defendant could still make full answer and defence using the officer's contemporaneous notes and a later video statement.

The defendant also sought disclosure of various records.

The court ordered the Crown to disclose the complainant's criminal record and inquire into other complaints made by her, but held that police occurrence reports from unrelated investigations were third-party records requiring an application under s. 278.3 of the Criminal Code.

The court also declined to order the Crown to provide a binding witness list.

Following a family law mobility trial where the applicant father was successful in having the children reside primarily with him, he sought costs of $77,664.53 based on an offer to settle.

The respondent mother, who had limited financial means, argued for no costs or a nominal amount.

The court declined to apply the strict costs consequences of the offer to settle, noting the difficult nature of mobility cases and the reasonableness of both parties' positions.

Considering the respondent's modest means and the costs she would incur to exercise access, the court fixed costs at $15,000 payable to the applicant.

The accused brought an application to quash a search warrant authorizing the search of his residence and vehicle for firearms, and to exclude evidence obtained during the search under s. 24(2) of the Charter.

The police had obtained the warrant after the accused admitted to firing a 9 mm handgun at intruders and stated the gun was in his car.

The court found there was insufficient evidence to justify searching the residence, as the information only connected the offences to the handgun in the vehicle.

The court held the search of the residence violated the accused's s. 8 Charter rights.

Applying the Grant framework, the court concluded the breach was serious and profoundly intrusive, and excluded the evidence found in the residence, including a prohibited rifle, under s. 24(2).