G. Dow

The defendant, a criminal defence lawyer, brought a motion to dismiss the plaintiff's civil action for professional negligence as an abuse of process.

The plaintiff had been convicted of criminal offences, and his appeals, which included allegations of ineffective assistance of counsel against the defendant, were dismissed.

The court found that allowing the civil action to proceed would require re-litigating the criminal convictions and finding them incorrect, constituting an impermissible collateral attack.

However, noting the plaintiff's new evidence, the court stayed the action rather than dismissing it, pending a successful review of the convictions under the Criminal Code.

The plaintiffs appealed a Master's decision upholding the defendant's refusal to answer certain questions at an examination for discovery.

The underlying action involved a claim for negligent security after the deceased was fatally shot outside the defendant's building.

The Superior Court of Justice partially allowed the appeal, finding that the Master made a palpable error in refusing production of patrol officer records and event permit information, as these were relevant to the plaintiffs' pleaded allegations of inadequate security.

The defendant was ordered to answer the specific questions for the one-year period prior to the incident.

The accused was charged with multiple drug and firearm offences following the execution of a search warrant at an apartment unit.

The Crown relied on circumstantial evidence to prove the accused resided in the unit and possessed the contraband found inside, as well as marijuana found in the hallway.

The court applied the W.(D.) framework and rejected the accused's testimony, but ultimately found the Crown's circumstantial evidence insufficient to prove beyond a reasonable doubt that the accused resided in the unit or possessed the marijuana in the hallway.

The accused was acquitted of all charges.

Following a jury trial where the accused was found guilty of robbery and related offences, defence counsel received anonymous letters purportedly from a juror raising concerns about the deliberation process and alleged bias.

The accused applied for an inquiry into the jury or a mistrial.

The court dismissed the application, applying the common law rule of jury secrecy and finding that the delay and anonymous nature of the letters made them too unreliable to warrant an inquiry or mistrial.

The accused was charged with sexual assault after grabbing the complainant from behind, knocking her to the ground, and touching her vaginal area over her clothing.

The accused admitted to grabbing the complainant but claimed it was a case of mistaken identity, believing she was his girlfriend, and denied any sexual touching.

The court applied the W.(D.) test, rejected the accused's evidence as not credible, and found that the Crown proved the elements of sexual assault beyond a reasonable doubt.

The accused was found guilty.

The United States of America sought the extradition of the respondent to face charges of conspiracy to possess and distribute marijuana and MDMA.

The Attorney General of Canada applied for an order committing the respondent into custody to await the Minister's decision on surrender.

The court found that the respondent was the person sought and that the Record of the Case contained sufficient admissible evidence of conduct that, had it occurred in Canada, would justify committal for trial on the corresponding Canadian offence of trafficking under the Controlled Drugs and Substances Act.

The committal order was granted.

The applicant, charged with 11 counts of fraud, sought a stay of proceedings under s. 11(b) of the Charter for unreasonable delay.

The total delay exceeded the 30-month presumptive ceiling established in R. v. Jordan.

The Crown argued the delay was justified due to the case's complexity and transitional exceptional circumstances.

The court agreed, finding the volume of disclosure, number of witnesses, and nature of the fraud allegations made the case particularly complex.

Alternatively, the court found transitional exceptional circumstances applied, as the Crown reasonably relied on the previous law and the applicant's actions contributed to the delay.

The application for a stay was dismissed.

The applicants sought an order recognizing and enforcing an arbitral award of $400,000 made by a religious arbitral tribunal (Beth Din).

The respondents opposed, arguing the award was not yet binding as the tribunal had indicated a willingness to consider additional issues regarding costs and damages.

The court dismissed the application, finding that the arbitration process was not yet complete and the tribunal was not functus officio, applying the competence-competence principle to defer to the tribunal's jurisdiction.

The plaintiff sought additional reasons following a trial decision regarding a failed real estate transaction.

The court clarified that the plaintiff was entitled to judgment for $43,154.94, in addition to the $100,000 deposit already released, while dismissing the balance of the $247,552.52 claim.

On costs, the court reduced the defendants' costs award to $10,000 to reflect the plaintiff's partial success in recovering damages, despite the defendants' success on the exchange rate differential issue at trial.

The court also awarded the plaintiff $1,809.42 in pre-judgment interest, adjusting the interest period for the deposit to account for both parties' delay in releasing the funds.

The parties, former business partners in several fitness clubs, brought claims and counterclaims against each other following the breakdown of their relationship.

The plaintiffs sought the unpaid balance from the defendants' repurchase of a 50% interest in four clubs.

The defendants counterclaimed for unpaid head office administration fees and shared expenses related to a jointly owned club in Cambridge.

The court reconciled the amounts owed by both sides, finding the defendants owed the plaintiffs $35,000.00 and the plaintiffs owed the defendants $34,713.49.

The court granted judgment to the plaintiffs for the net difference of $286.51, plus pre-judgment interest, and ordered each party to bear its own costs.

The defendants brought a motion to stay the plaintiff's action based on a mandatory arbitration clause in the base trade credit insurance policy.

The plaintiff opposed the motion, relying on a Canadian endorsement that permitted an action against the insurer in Canada and stated that endorsements prevail in the event of a conflict.

The court found that the contract, read as a whole, provided alternative methods for dispute resolution and that the endorsement prevailed over the base policy's arbitration clause.

The motion to stay the action was dismissed.

The plaintiff sued the defendants for breach of an Agreement of Purchase and Sale for a residential property.

While the defendants admitted liability for the shortfall in the subsequent sale price and carrying costs, they disputed the plaintiff's claim for an additional $104,397.45.

This amount represented the increased cost of repaying US dollar promissory notes due to exchange rate fluctuations between the original and actual closing dates.

The court dismissed this portion of the claim, finding that the exchange rate loss on undisclosed promissory notes used to finance a different property was not reasonably foreseeable at the time the contract was formed.

The defendants brought a motion for summary judgment, arguing the plaintiff's motor vehicle accident claim was statute-barred under the Limitations Act.

The plaintiff sustained injuries, including blurred vision, but returned to work and did not seek further treatment until his condition worsened over a year later.

The court applied the discoverability principle, noting that an expert ophthalmologist could not have determined the permanence of the eye injury within the first year.

The court found the plaintiff's claim was issued within the two-year limitation period and dismissed the defendants' motion.

The plaintiff, a dentist claiming long-term disability benefits following a motor vehicle accident, brought a motion to strike the defendant's jury notice prior to trial.

The plaintiff argued the case involved complex medical and financial issues and claims for declaratory relief.

The court dismissed the motion, applying the 'wait and see' approach, holding that the right to a jury trial is a substantive right and the case did not meet the high standard required to strike a jury notice in advance of trial.

Costs were awarded to the defendant.

The plaintiff, a creditor of the defendant's bankrupt former spouse, brought a motion to set aside the bankrupt's release of his interest in the matrimonial home.

The bankrupt had released his interest in the home to the defendant in a separation agreement shortly before declaring bankruptcy.

The court held that the bankrupt's right to claim possession of the matrimonial home was personal in nature and not an asset available for distribution to creditors under the Bankruptcy and Insolvency Act.

The motion was dismissed.

The defendant brought a motion to set aside a default judgment awarding the plaintiff $100,000 in damages for the non-consensual posting of an intimate video.

Applying the five-factor test from Mountain View Farms, the court found that the interests of justice favoured setting aside the liability and damages portions of the judgment, as the defendant had an arguable defence regarding the quantum of damages and had moved relatively promptly.

The motion was granted on the condition that the defendant pay $10,000 in costs thrown away, while the permanent injunctions remained in place.

The plaintiff appealed a Master's order dismissing her motion to continue a certificate of pending litigation against a property now owned by the defendants.

The plaintiff alleged she was defrauded of the property through improper mortgages and sought to set aside the transfer as a fraudulent conveyance.

The Superior Court of Justice dismissed the appeal, finding no palpable or overriding error in the Master's conclusion that the plaintiff no longer had a reasonable claim to an interest in the property, as previous court decisions had already conclusively determined the property could properly be sold.

The court also upheld the Master's finding that the equities favoured the defendants.

The plaintiff employer brought a motion for an interlocutory injunction to restrain a former employee from soliciting and doing business with its existing customers.

The employee had resigned and started a competing business selling similar products.

Applying the RJR-MacDonald test, the court found there was a serious issue to be tried but concluded the plaintiff failed to establish irreparable harm, noting the employee was not a fiduciary and damages would be an adequate remedy.

The balance of convenience favoured the employee, as the injunction would deprive him of his primary ability to earn a living.

The motion was dismissed.

The third party architect brought a motion for summary judgment to dismiss a third party claim for contribution and indemnity brought by the defendant general contractor.

The architect argued that its contract with the plaintiff contained a six-year limitation of liability clause that had expired.

The court dismissed the motion, finding that section 18 of the Limitations Act, 2002 provides a two-year limitation period for contribution and indemnity claims that supersedes the contractual limitation between the plaintiff and the third party.

The court also noted in obiter that the contractual limitation clause would have impliedly extended to the individual architect.

The plaintiffs brought a motion to set aside a Registrar's Order dismissing their action for delay.

The action arose from an unpaid loan of $36,300 allegedly secured by a second mortgage handled by the defendant lawyer.

The plaintiffs experienced multiple issues with their legal representation, leading to the dismissal.

Applying the four-part test from Reid v. Dow Corning Corp., the court found the plaintiffs' explanation and promptness tenuous but prioritized the litigants' rights over their counsel's conduct.

Finding no significant prejudice to the defendant, the court set aside the dismissal on strict terms and awarded costs to the defendant in the cause.