Aaron Gold

This endorsement addresses the issue of costs following the granting of summary judgment in favour of the Defendant Ernst & Young LLP, on the basis that the limitation period for the Plaintiffs’ action had elapsed.

The court reviews the relevant factors under the Courts of Justice Act and the Rules of Civil Procedure, including the result achieved, the complexity of the issues, and the offers to settle.

The court awards costs to Ernst & Young LLP on a partial indemnity basis up to the date of its offer to settle, and on a substantial indemnity basis thereafter, ordering the Plaintiffs to pay $125,000.00 in costs.

The court granted summary judgment in favour of Ernst & Young LLP, finding that the limitation period for the plaintiffs’ action had expired.

The decision reviews the contractual and statutory limitation periods, the relevant facts, and the legal standards for summary judgment, ultimately concluding that there was no genuine issue requiring a trial.

The defendant, Citadelle, brought a motion seeking an order to seal certain Master Supply Agreements (MSAs) and Individual Supply Agreements (ISAs) with Coca-Cola, arguing that these documents contained commercially sensitive and confidential information.

The plaintiff consented to the motion.

The court applied the three-part test from Sherman Estate v. Donovan, finding that court openness posed a serious risk to the important public interest of preserving confidential commercial information, that no reasonable alternative measures would prevent this risk, and that the benefits of the narrowly tailored sealing order outweighed its negative effects on the open court principle.

The motion was granted, and the identified agreements were ordered sealed.

Michael Katz pleaded guilty to possession of a loaded prohibited firearm, assault police officer with a taser, failing to remain at the scene of an accident, and impaired operation of a motor vehicle.

The offences occurred on Christmas Day 2021, involving a car collision, flight from the scene, and a violent struggle with police where a firearm was discharged and a taser used against an officer.

The Crown sought a 4-year penitentiary sentence, while the defence argued for a conditional sentence of 6-9 months.

The court considered aggravating factors, including the seriousness of firearm offences, the discharge of a loaded weapon on a public street, the assault on a police officer, and the impaired driving.

Mitigating factors included the accused's guilty plea, remorse, lack of prior criminal record, strong family support, and compliance with strict bail conditions.

The court rejected the defence's argument for a sentencing discount due to alleged excessive force by police during arrest, finding the officers' actions reasonable given the dynamic and chaotic circumstances.

The judge found a conditional sentence inappropriate due to the pressing need for denunciation and deterrence.

Karson Benjamin, a youthful first offender, pleaded guilty to numerous serious offences including trafficking 27 firearms, 12 overcapacity magazines, 2 selector switches, over half a kilogram of fentanyl, and cocaine.

He was also found with a loaded handgun and proceeds of crime upon arrest.

The Crown sought a 15-year global sentence, while the defence argued for less than 10 years.

The court considered aggravating factors such as the nature and quantity of drugs and firearms, the combination of guns and drugs, and Benjamin's integral role, attenuated by his intellectual limitations.

Mitigating factors included his youth, lack of criminal record, difficult background, early guilty pleas, and harsh pre-sentence custody conditions.

Applying principles of proportionality, parity, deterrence, denunciation, protection of the public, rehabilitation, and restraint, the court imposed a global sentence of 13 years, with specific counts running concurrently or consecutively, and credited 1458 days for pre-sentence custody.

This is an appeal from a motion judge's order dismissing the appellants' motion for summary judgment and declaring that the respondents' action was commenced within the limitation period.

The appellants argued the claim was discovered earlier, based on a 2015 telephone conversation and a 2005 memorandum concerning tax consequences of a trust.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in her application of the relevant statutory provisions and caselaw, particularly Grant Thornton LLP v. New Brunswick.

The court agreed that the information known to the respondents' lawyer was insufficient to ground a plausible inference of liability without expert advice, thus the limitation period began later, making the action not time-barred.

The appeal was dismissed with costs.

This endorsement addresses the costs arising from a dismissed interlocutory injunction motion brought by the Applicants and a granted cross-motion for consolidation brought by the Respondents.

The Respondents, as successful parties, sought substantial indemnity costs, citing egregious conduct and reasonable settlement offers.

The Applicants argued for costs in the cause or partial indemnity, denying bad faith.

The court ordered costs payable forthwith on a partial indemnity basis, finding no reprehensible conduct warranting substantial indemnity and noting the limited compromise in the Respondents' settlement offers.

The quantum of costs claimed by the Respondents was reduced due to excessive hours, particularly for the consolidation motion.

The applicants sought a declaration that Lloyd's Underwriters had a duty to defend them in an action brought by a former business partner, Gavin Dabron.

Dabron's action included claims for breach of confidence and negligent/fraudulent misrepresentation related to a prior settlement and company valuation.

The court found that while the claims initially fell within the policy's coverage, they were ultimately excluded by the "prior and pending litigation" clause, as both the confidentiality and valuation claims arose directly from earlier litigation between the parties.

The application for a duty to defend was dismissed.

The applicants brought a motion for an interlocutory injunction in an oppression application to preserve their alleged shareholdings in a startup company and restrict the respondents' use of corporate assets.

The respondents brought a cross-motion to convert the application into an action and consolidate it with their own action against the applicants.

The court dismissed the applicants' motion, finding they failed to establish a strong prima facie case for specific performance regarding the issuance of shares and failed to show irreparable harm.

The court granted the respondents' cross-motion, ordering the application to proceed as an action and be consolidated or heard together with the respondents' action, given the overlapping issues, disputed material facts, and need for discoveries.

The defendants moved for summary judgment to dismiss the plaintiffs' action as statute-barred under the Limitations Act, 2002, arguing that the plaintiffs' former lawyer had sufficient knowledge of the potential claim more than two years before the action was commenced.

The plaintiffs contended that the information available to their lawyer was insufficient to trigger the limitation period, requiring further expert investigation.

The court dismissed the defendants' motion, finding that the information known to the plaintiffs' lawyer was merely a suspicion and not enough to establish a plausible inference of liability, especially given the complex technical nature of the tax issue and conflicting professional opinions.

The limitation period was held to have commenced either when further due diligence was decided upon (February 22, 2016) or when a comprehensive expert opinion was provided (February 24, 2017), both dates being within the two-year period.

The accused, G.D., faced historical sexual abuse charges.

The Crown sought to admit statements made by the accused to the complainant, his niece, during two telephone conversations, without proving voluntariness under the confessions rule.

The accused argued the complainant was a "person in authority" because he believed she was a parole officer and could initiate criminal proceedings.

The court examined the "person in authority" requirement, particularly in light of R. v. Hodgson, and concluded that for the confessions rule to apply, the recipient of the statement must actually be an agent of the state or capable of influencing the prosecution, in addition to the accused's reasonable belief.

Since the complainant was not acting on behalf of investigating authorities, her status as a private citizen meant the confessions rule did not apply.

The accused, Rene Hamouth, faced charges of possessing firearms without a license.

Police executed a search warrant at his residence, finding multiple firearms and ammunition.

The defence argued for the exclusion of evidence under Charter s. 24(2) due to alleged s. 10(b) infringements, including delayed access to counsel and breaches of the "hold-off" duty.

The court found multiple s. 10(b) breaches by the police, citing lack of diligence in facilitating counsel access and improper questioning.

However, applying the Grant test, the court determined that the seriousness of the violations and their impact on the accused's Charter rights did not outweigh society's interest in a trial on the merits, especially given the lawful seizure of reliable evidence prior to the breaches.

Consequently, the firearms and ammunition were admitted.

The court then found the accused guilty on all counts, concluding that the prosecution proved constructive possession beyond a reasonable doubt.

The accused was charged with possessing a firearm without a licence under sections 91(1), 92(2), and 95(1) of the Criminal Code.

He was arrested following execution of a search warrant at his residence, though the warrant was originally directed at his son.

The accused brought a Garofoli application to set aside the search warrant and exclude the firearms seized from his home, arguing there was insufficient evidentiary basis in the Information to Obtain to support reasonable grounds that his son was in unlawful possession of a firearm and that the residence was his son's dwelling house.

The Crown conceded the redacted ITO was insufficient and requested a step-six procedure involving judicial summary review of unredacted portions.

The court found that on the available information, including unredacted paragraphs and the judicial summary, it was open to the issuing justice to find reasonable grounds that the son was in unlawful possession of a firearm and had sufficient residential attachment to the address to justify the warrant.

The application was dismissed.

The defendant was charged with impaired operation of a motor vehicle and refusal to provide a breath sample.

The Crown conceded the impaired operation charge.

The defendant challenged the refusal charge on Charter grounds, arguing a violation of his right to counsel under s. 10(b) and seeking exclusion of evidence under s. 24(2).

The court found no Charter breach, concluding that the defendant failed to exercise reasonable diligence in attempting to contact counsel of his choice and deliberately delayed the investigative process.

The defendant was convicted of refusal to provide a breath sample.

The accused was charged with care and control of a motor vehicle while impaired and over the legal limit, resisting arrest, and assault with intent to resist arrest, following her arrest at a banquet hall parking lot.

The Crown alleged the accused was found behind the wheel of her vehicle after leaving a Christmas party.

The accused applied for Charter relief alleging breaches of sections 7, 8, and 9 of the Charter.

The trial judge dismissed the Charter applications but acquitted the accused on the impaired and over 80 charges, finding she had rebutted the statutory presumption of care and control and that no realistic risk of danger existed.

The accused was convicted of resisting arrest but acquitted of assault with intent to resist arrest.

Allen Taylor appealed his conviction for impaired driving.

The appeal focused on the trial judge's decision to exclude only the second breath sample under s. 24(2) of the Charter, following a s. 10(b) right to counsel breach.

The appellant argued both breath samples should have been excluded and that the remaining evidence was insufficient for conviction.

The Superior Court found the trial judge erred in not excluding both breath samples, applying the principles from R. v. Pino regarding evidence obtained prior to a Charter breach.

However, the court upheld the impaired driving conviction, finding that even without the breath samples, the remaining eyewitness and police observation evidence was compelling and sufficient to prove impairment beyond a reasonable doubt.

The accused, Terrence Kum, brought an application for a stay of proceedings, alleging abuse of process due to the Crown's historical and deliberate non-disclosure of relevant information and the loss of evidentiary material.

The application centered on alleged police misconduct within the Toronto Airport Drug Enforcement Unit (TADEU), specifically concerning Officer Ross Adair's involvement in a prior investigation (Project E-Plug) where notes were falsified.

The defence argued that the Crown's disclosure regarding TADEU corruption was insufficient and prejudiced the accused's right to make full answer and defence.

The court found that while the Crown could have provided more comprehensive disclosure, the information provided was sufficient to put previous defence counsel on notice.

The court determined that the defence failed to exercise due diligence in pursuing further disclosure and that the misconduct, while egregious, did not relate directly to the accused's case (Project O’Cook) to the extent that it warranted a stay.

The court dismissed the application, concluding that the conduct did not meet the "clearest of cases" threshold for a stay, and the Court of Appeal's order for a new trial provided an adequate alternative remedy.

The accused was charged with operating a motor vehicle while impaired by alcohol and with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The Crown proceeded summarily.

The accused challenged the admissibility of breath test results under section 24(2) of the Canadian Charter of Rights and Freedoms, alleging violations of sections 8, 9, 10(a), and 10(b).

The court found that the police had reasonable and probable grounds to demand a breath sample and that the accused was properly informed of the reasons for detention and arrest.

However, the court found that the breath technician breached the accused's right to counsel under section 10(b) by withholding the first breath test result, thereby preventing the accused from making an informed decision about whether to seek legal advice.

The second breath test result was excluded.

The accused was convicted of impaired operation based on the totality of the evidence, including observations of poor driving, physical signs of impairment, and the first breath test result.

The accused brought a motion for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms, alleging a violation of the right to be tried within a reasonable time under section 11(b).

The accused calculated the total delay as exceeding thirteen months from arrest to trial date, arguing it exceeded the Morin guideline of eight to ten months.

The court dismissed the application, finding that pre-charge delay cannot be included in the section 11(b) analysis, that a reasonable intake period must be deducted for the extensive disclosure requests, and that the remaining institutional delay of approximately ten months fell within the guideline.

The court also found little evidence of actual prejudice and emphasized the strong societal interest in a trial on the merits for drinking and driving offences.

The defendant pleaded guilty to eight criminal offences including possession of ephedrine for export, selling a natural health product without a licence, possession of proceeds of crime exceeding $1.3 million, money laundering of $8.9 million, and tax fraud against the Canadian government.

The offences occurred over an extended period from 2007 to 2010 and involved a sophisticated, large-scale commercial operation.

The defendant was the directing mind of the enterprise, not merely a courier.

The court imposed a sentence of two years less one day in a provincial reformatory, followed by two years probation and a ten-year firearms ban, rejecting the defence submission for a conditional sentence despite mitigating factors including the defendant's guilty plea, cooperation with authorities, first-time offender status, and family support.