Judith MacDonald

This endorsement addresses motions by the defendant insurers to compel Vale Canada Limited to answer refusals arising from oral and written discovery in complex insurance litigation concerning environmental claims at 26 mining sites.

The court reviews the status of discovery, the parties' agreements, and the proportionality of further discovery requests, including the use of exemplar and bridge charts to manage voluminous refusals.

The decision provides detailed directions on categories of refusals, privilege claims, and the process for resolving outstanding discovery issues, emphasizing proportionality, cooperation, and case management to keep the matter on track for trial.

This case involved a dispute between former real estate investment partners regarding the nature and scope of their oral agreement.

The plaintiffs, Anish Gupta and Gurpal Sani, sought a declaration that a second property, Torbram Road, was part of their partnership with the defendants, Kamaljit Chauhan and Gurbir Chauhan, and that the defendants had misappropriated partnership funds.

The court found that an oral partnership agreement existed for both properties (Para Place and Torbram Road), and that the defendants breached their fiduciary duties by selling Torbram Road and using the proceeds to purchase their personal residence (Burlwood Road) without accounting to the plaintiffs.

The plaintiffs were declared beneficial owners of Burlwood Road via a resulting trust and awarded damages.

A claim for punitive damages was dismissed due to the absence of an independent actionable wrong.

The proposed intervenor brought a motion seeking leave to intervene as an added party in an application for judicial review.

The underlying application challenged the Ministry of Energy's conclusion that the duty to consult regarding a pipeline replacement project was satisfied.

The court granted the motion, finding that the proposed intervenor had a direct interest in the proceeding, could be adversely affected by the judgment, and shared common questions of law and fact with a parallel appeal.

The plaintiffs sought to extend an interim injunction and a Certificate of Pending Litigation (CPL) against the defendants, alleging they were defrauded of $880,000 through an investment scheme involving real estate.

The court found a strong prima facie case of fraudulent misappropriation based on bank records showing funds diverted for personal use and no real estate purchases.

The court inferred a serious risk of asset dissipation and found irreparable harm would result without the injunction.

The balance of convenience favored granting the injunction and CPL.

The defendants' arguments regarding lack of fraud evidence, no risk of dissipation, and non-disclosure were rejected.

The offender, a traditional Chinese medicine practitioner, was found guilty of a historical sexual assault against a patient during an examination in 1992.

The Crown sought 60 days incarceration, while the defence sought an absolute discharge.

The court emphasized the breach of trust and the need for denunciation and general deterrence, rejecting a discharge.

Considering the offender's lack of prior record, positive community contributions, and the impact of the COVID-19 pandemic, the court imposed a 60-day conditional sentence followed by three years' probation, along with mandatory DNA, weapons prohibition, and SOIRA orders.

This criminal trial concerns a sexual assault charge against J.G. involving the complainant, B.B., a nurse.

B.B. alleged J.G. intentionally touched her breast multiple times during a medical examination, while J.G. claimed a single inadvertent touch and suggested B.B. was flirtatious.

The court applied the R. v. W.(D.) credibility analysis, emphasizing that rejecting the accused's evidence does not automatically lead to conviction.

The judge found J.G.'s testimony manipulative and not credible, accepting B.B.'s consistent and reliable account.

The court concluded that the Crown proved beyond a reasonable doubt that J.G. intentionally touched B.B.'s breast, constituting sexual assault.

J.G. was convicted.

Following a successful summary judgment motion for the plaintiffs, the court addressed the issue of costs.

The plaintiffs sought partial indemnity costs of $42,696.31, while the defendant proposed no more than $24,467.76.

The court found that offers exchanged did not trigger specific cost consequences under the Rules.

The court disallowed certain fees claimed by the plaintiffs, specifically those related to duplication from a change in law firms and an unnecessary outside legal opinion, deeming them not reasonably recoverable from the losing party.

After reviewing the bills of costs and considering the complexity of the matter, the court determined that 85 hours at $297.50/hour, plus disbursements, was reasonable.

The plaintiffs were awarded costs in the amount of $28,382.53.

The plaintiffs brought a motion for summary judgment for damages arising from the defendant's failure to close a real estate transaction.

The defendant had agreed to purchase the plaintiffs' property but failed to obtain financing after a market correction.

The defendant communicated his inability to close prior to the closing date and failed to participate in closing preparations.

The court found that the defendant anticipatorily breached the agreement, relieving the plaintiffs of the obligation to tender perfectly.

The plaintiffs were awarded damages for the difference in sale price and carrying costs.

The Crown brought an application under section 810.2 of the Criminal Code for a preventive order restricting the respondent's liberty following his release from incarceration.

The respondent challenged the admissibility of certain Correctional Service Canada records, including psychological assessment reports, correctional plans, assessment for decision reports, and institutional programs performance reports.

The court conducted an evidentiary ruling on the admissibility of these documents, applying the "credible and trustworthy" standard for hearsay evidence in peace bond hearings.

The court found that psychological assessment reports (expert reports) were inadmissible without qualified expert testimony, but that correctional plans, assessment for decision reports, and institutional programs performance reports were admissible as they met the credible and trustworthy threshold and qualified as business records under the Canada Evidence Act.

The accused, a practitioner of Traditional Chinese Medicine, was charged with sexually assaulting a patient during an internal examination in 2004 or 2005.

The Crown alleged the examination was not a legitimate medical practice and that the complainant's consent was vitiated by fraud.

The court admitted expert evidence on Traditional Chinese Medicine but found it insufficient to prove beyond a reasonable doubt that the accused's actions fell outside the unregulated practices of the time or that he knowingly breached provincial regulations.

The accused was acquitted.

The court addressed a joint request from the Crown and defence for a ruling on the authority to conduct a criminal trial virtually via Zoom, allowing the accused to participate remotely.

The court found it had jurisdiction under s. 650(2)(b) of the Criminal Code, in conjunction with ss. 715.22-715.24, to permit the accused's absence from the physical courtroom under proper conditions, especially given the accused was represented by counsel and had provided a clear waiver.

The decision distinguished conflicting lower court jurisprudence regarding virtual appearances for self-represented versus represented accused and for pleas versus trials.

The accused was charged with sexual assault and sexual interference against his 11-year-old son.

The allegations arose from a single incident in the fall of 2017.

The trial judge applied the W.(D.) framework to assess the credibility of both the complainant and the accused.

The judge found both the complainant and the accused to be credible and compelling witnesses.

As the judge was unable to resolve the conflicting testimony and was left with a reasonable doubt, the accused was acquitted of both charges.

The accused was charged with operating a conveyance with a blood alcohol level equal to or exceeding 80 mg of alcohol in 100 mL of blood.

The accused raised four Charter challenges: (1) the objective reasonableness of the approved screening device failure; (2) the arbitrariness of detention in cells pending release; (3) a violation of the right against unreasonable search and seizure due to videotaping while using the washroom; and (4) a violation of the right to counsel due to being directed to duty counsel.

The court rejected all four challenges and found the accused guilty.

The court found the ASD failure was objectively reasonable, the detention was not arbitrary as it was incident to a valid arrest and necessary for supervision and paperwork completion, the videotaping with privacy blanket protections did not violate privacy rights, and there was no improper funnelling to duty counsel.

The accused, a Traditional Chinese Medicine practitioner, was charged with three counts of sexual assault against three former patients.

The Crown alleged the accused touched the complainants in a sexual manner under the guise of 'energy work' and medical treatment.

The court dismissed the Crown's similar fact application, finding the evidence across counts was either not probative of the sexual nature of the touching or too dissimilar.

The court acquitted the accused on all counts, finding the testimony of one complainant unreliable and harbouring a reasonable doubt as to whether the touching of the other two complainants was of a sexual nature rather than for a clinical purpose.

The accused was charged with 24 offences including possession for the purpose of trafficking of prohibited substances (heroin, cocaine, crack cocaine, and crystal methamphetamine), firearms offences relating to possession and careless storage of a handgun and ammunition, and possession of proceeds of crime.

The preliminary inquiry judge assessed whether the Crown had adduced sufficient evidence to establish the essential elements of possession—knowledge and control—through circumstantial evidence.

The judge found that the Crown's proposed inferences were speculative and did not logically flow from the established facts.

The accused was discharged on all counts.

The accused was tried on four counts of sexual assault arising from an intimate partner relationship between 2010 and 2012.

The court accepted that delayed disclosure of sexual assault does not, by itself, justify an adverse credibility finding, but held that the complainant's specific explanations for delay were inconsistent with other evidence.

The court also found the corroborative value of photographs, recordings, texts, emails, and a rebuttal witness to be limited or unpersuasive.

Viewing the evidence as a whole, the court was left with a reasonable doubt as to reliability and credibility and entered acquittals on all counts.

The accused was charged with operating a motor vehicle with a blood alcohol content over the legal limit after moving her car from one friend's driveway to another.

The court found two Charter breaches: (1) the roadside screening demand was not made "forthwith" as required by statute, as the investigating officer deliberately delayed making the demand to provide training to a junior officer; and (2) the accused's use of the toilet in her cell was videotaped without a valid waiver of her privacy rights, despite the police offering a privacy sheet that the accused was unaware of.

The court excluded the breath sample evidence as a remedy under section 24(2) of the Charter, finding that the long-term interests of justice favoured exclusion despite the seriousness of impaired driving offences.

The applicant accused brought an application for the production of occurrence reports.

The court dismissed the application, finding it was not satisfied that the requested records should be produced, with written reasons to follow.

The appellant appealed a Small Claims Court decision dismissing his claim for breach of contract and granting the respondent banquet hall's counterclaim for unpaid cancellation fees.

The appellant argued the trial judge made factual errors and misapplied the law of mitigation by not requiring the respondent to prove it took active steps to re-book the hall.

The Divisional Court dismissed the appeal, finding any factual errors were inconsequential.

Applying the Supreme Court's decision in Southcott Estates, the court held that the onus of proving a failure to mitigate, including that a profitable substitute could have been found, rests entirely on the party alleging the failure.

The appellant appealed convictions for assault causing bodily harm and assault.

The court dismissed the appeal for assault causing bodily harm, finding sufficient evidence for common unlawful purpose.

However, the appeal against the assault conviction was allowed, and a new trial ordered.

This was due to the trial judge's material misapprehension of evidence regarding the sequence of events in the second confrontation between the appellant and the victim, which improperly precluded consideration of self-defence or consensual fight arguments.

The court emphasized the necessity for trial judges to provide sufficient reasons, reconcile divergent evidence, and avoid misapprehending material facts that impact the air of reality of a defence.