Sally Gomery

The accused, charged with first-degree murder, applied for a second court-ordered psychiatric assessment under s. 672.11(b) of the Criminal Code to support a defence of not criminally responsible.

The court dismissed the application, finding that a second assessment was not necessary because a comprehensive assessment had already been conducted by a forensic psychiatrist, and there was no evidence of new information that would shed further light on the accused's mental state at the time of the offence.

The accused, charged with assault and robbery, brought an application for the production of third-party records held by the Victim/Witness Assistance Program.

The application was based on an email from the complainant indicating a desire to withdraw the criminal complaint due to a cultural and community agreement.

The court found that the accused established the likely relevance of the records, as the agreement raised questions about the complainant's motives and credibility.

The court ordered the records produced to the court for review at the second stage of the application.

The applicants agreed to purchase a property from the respondents, who subsequently breached the Agreement of Purchase and Sale by refusing to close.

The respondents argued that the Deposit Clause in the Agreement limited the applicants' remedy to the return of their deposit.

The court found that the Deposit Clause did not clearly and unambiguously waive the applicants' right to claim damages, but only precluded specific performance.

The court awarded the applicants $150,000 in damages, representing the difference between the agreed purchase price and the appraised value of the property at the time of the breach, relying on the applicants' appraisal evidence.

The defendant moved to stay a civil action brought by the plaintiff, her former spouse, which sought to lift a freezing order and preservation order previously granted in their ongoing family law proceeding.

The court granted the stay, finding that the civil action was an impermissible collateral attack and barred by issue estoppel, as the plaintiff was attempting to relitigate a final order made between the same parties in another forum.

The defendant's request for security for costs was dismissed as unnecessary given the stay.

The Crown applied for testimonial aids for a key witness in a second-degree murder trial.

The witness, who suffers from schizophrenia and other mental health conditions, witnessed the stabbing.

The Crown sought to admit the witness's videotaped police interview under s. 715.2 of the Criminal Code and to allow him to testify via CCTV under s. 486.2.

The court dismissed the s. 715.2 application, finding the witness capable of communicating his evidence cogently.

However, the court granted the s. 486.2 application, allowing the witness to testify via CCTV, as his mental disability and anxiety could make it difficult for him to give a full and candid account in the accused's presence.

The plaintiffs brought a motion to implement a Pierringer settlement agreement with 18 of the defendants following a multi-vehicle collision, and to strike the jury notice filed by the non-settling defendants due to anticipated COVID-19 trial delays.

The court granted the order implementing the settlement with some modifications to the proposed terms, including a mechanism to enforce the settling defendants' discovery obligations.

The motion to strike the jury notice was dismissed as premature, as no pre-trial conference had yet occurred to determine the expected length of the trial.

The accused were charged with armed robbery, conspiracy, and related offences following a home invasion.

The Crown's case relied heavily on the testimony of an unsavoury witness who admitted to participating in the robbery and other crimes.

The court applied the Vetrovec warning, requiring corroboration for the witness's evidence.

Finding significant inconsistencies in the identification evidence and a lack of corroborating physical or circumstantial evidence linking the accused to the crime, the court concluded the Crown failed to prove the charges beyond a reasonable doubt.

Both accused were found not guilty.

During a trial for a home invasion and robbery, the accused applied to exclude photo lineup evidence under s. 24(2) of the Charter.

The accused's photo was included in the lineups based on information obtained from an unlawful search of his cellphone by police in an unrelated investigation.

The court applied the Grant framework and found that while the police misconduct was moderately serious, the evidence would have been discovered lawfully by another investigator.

The court concluded that admitting the evidence would better serve the truth-seeking function of the trial and dismissed the application.

The applicant sought leave to appeal or set aside two arbitral awards issued in favour of the respondent regarding a commercial dispute over the manufacture of blow moulding machines.

The court dismissed the application, finding that the applicant had waived its right to object to the arbitrator's jurisdiction by failing to raise the issue until closing arguments.

Furthermore, the court held that the 'final and binding' language in the parties' arbitration agreement precluded any right of appeal under s. 45 of the Arbitration Act.

The court also rejected arguments that the arbitrator failed to consider evidence, acted unfairly, or demonstrated a reasonable apprehension of bias, concluding that the arbitrator's findings were reasonable and well-founded.

The plaintiff moved for summary judgment on an action for payment of a promissory note executed by the defendants.

The defendants argued the note was unenforceable due to an oral collateral agreement, lack of consideration, duress, and fraudulent misrepresentation.

The court granted summary judgment, finding no genuine issue for trial.

The court applied the parol evidence rule to exclude evidence of the alleged collateral agreement and found the defendants' claims of duress and fraud to be unsupported by credible evidence.

The plaintiff was awarded $250,000 plus interest.

The plaintiffs, who moved from Thailand to Canada to operate a Thai restaurant, sued the defendants for breach of contract and unjust enrichment after their employment was terminated.

The court found no enforceable contract but held that the defendants were unjustly enriched by the plaintiffs' financial contributions and goods shipped for the restaurant.

The plaintiffs' recovery was offset by loans and expenses incurred by the defendants.

The court also awarded the plaintiff cook unpaid wages and pay in lieu of notice, while granting the defendants' counterclaim for cash retained by the plaintiff husband.

The defendant brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action.

The action arose from a Facebook post in which the defendant alleged the plaintiff had sexually, physically, and emotionally abused her during their marriage.

The court found that while the expression related to a matter of public interest, the plaintiff demonstrated that his claim had substantial merit and that the defendant's defences of justification, fair comment, and qualified privilege could realistically fail.

The court concluded that the severe harm to the plaintiff's career and reputation outweighed the public interest in protecting the expression.

The motion was dismissed, allowing the defamation action to proceed.

The parties settled a shareholder dispute, agreeing that the defendant would purchase the plaintiff's shares and pay 'costs as agreed or assessed'.

They could not agree on the scale or quantum of costs.

The defendant argued the costs should be assessed by an assessment officer pursuant to Rule 57.04.

The plaintiff argued the court should determine the costs as part of enforcing the settlement.

The court held that because determining the appropriate scale of costs required interpreting the settlement agreement, a judge should make the necessary factual and legal determinations rather than delegating to an assessment officer.

The plaintiff was directed to bring a motion to enforce the settlement.

The Children's Aid Society brought a motion for summary judgment in a child protection application, seeking a final order granting joint decision-making responsibility of an Indigenous child to the mother and her former partner.

The father opposed the motion, arguing for shared decision-making and raising concerns about the child's exposure to her First Nations heritage.

The court found no genuine issue requiring a trial and concluded that the proposed order was in the child's best interests, noting the history of domestic violence and the proposed caregivers' commitment to fostering the child's cultural identity.

The motion for summary judgment was granted.

The respondent filed a motion regarding a prior endorsement that dealt with the applicant's motion to sever the divorce from other issues.

The respondent had not initially responded to the applicant's motion but now sought to contest it and requested more time to obtain counsel.

The respondent failed to specify the orders sought in his motion.

The court dismissed the motion as unfounded, noting that a motion failing to specify the orders sought constitutes a waste of time or an abuse of process under Rule 1(8.2) of the Family Law Rules, and that the court has the right to rule on the merits of a motion without obtaining a response from the opposing party.

The parties separated following a violent altercation resulting in criminal charges against the applicant father.

On this motion, both parties sought orders regarding parenting time, decision-making responsibility, and child support for their 21-month-old child.

The court granted the respondent mother sole decision-making responsibility and extended a no-contact order due to the history of family violence.

The court removed the supervision requirement for the father's parenting time and gradually increased his daytime visits, but denied overnight visits pending evidence of stability.

The father was also ordered to pay child support based on his reported income, subject to further financial disclosure.

The accused, charged with sexual assault and sexual interference, brought an application challenging the constitutionality of s. 278.92 of the Criminal Code.

He argued that the provision, which creates a presumptive inadmissibility for personal information records in the possession of the accused, violates his rights under ss. 7, 11, and 15 of the Charter.

The court dismissed the application, finding that the statutory scheme is rationally connected to its purposes of protecting complainants' privacy and encouraging the reporting of sexual offences.

The court concluded that the scheme does not violate the accused's right to a fair trial or equality rights.

Following a successful motion for a disclosure order against the defendants in the context of a judgment debtor examination, the plaintiff sought costs on a substantial indemnity basis.

The court found that the defendants' conduct, including refusing to answer relevant questions, delivering unhelpful answers on the eve of the hearing, and frustrating the plaintiff's attempts to execute its judgment, justified an elevated costs award.

The plaintiff was awarded substantial indemnity costs of $13,954.

The Estate Trustee applied to pass accounts for the estate of Françoise Poitras.

The remaining issues were the Trustee's compensation and the parties' legal costs.

The court awarded the Trustee $17,608 in compensation, denying an additional management fee.

On costs, the court found that the Charitable Beneficiaries caused significant delay in finalizing an interim release.

Consequently, the Charitable Beneficiaries were ordered to pay 60% of the Trustee's legal costs incurred after September 2017, with the balance of the Trustee's reasonable costs and the costs of the initial application for directions to be paid by the Estate.

The plaintiffs brought a motion to strike the defendant's jury notice in a motor vehicle accident claim, arguing that the Covid-19 pandemic would indefinitely delay a jury trial.

The court granted leave to bring the motion, finding the pandemic constituted a substantial and unexpected change of circumstances.

However, the court dismissed the motion to strike the jury notice because the parties were not yet ready for trial.

Specifically, the defendant's psychiatric expert had not received all necessary raw data to complete his report, and a pre-trial conference remained outstanding.

The court vacated the upcoming trial dates and directed the matter to a trial management court.