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 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.

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 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 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 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 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 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.

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

The trial proceeded as a blended voir dire.

The defendant brought applications alleging violations of sections 8, 9, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found that the defendant was arrested for public intoxication but never formally arrested for impaired driving, despite reasonable grounds existing after the defendant's statements to police.

The investigating officer failed to provide the defendant with rights to counsel when the nature of the investigation changed to a more serious criminal offence.

The breathalyzer technician proceeded on the basis of an arrest for a provincial offence and left the caution section blank on the alcohol influence report.

The court found violations of sections 10(a) and 10(b) of the Charter and excluded the breathalyzer evidence under section 24(2).

This endorsement addresses the costs arising from a successful motion brought by the Defendant to set aside an ex-parte injunction and Certificate of Pending Litigation (CPL) previously granted to the Plaintiffs.

The Defendant sought costs of $12,943.07, while the Plaintiffs argued for no costs, citing the necessity of the injunction, original harm, and a reasonable offer to settle.

The court found the Defendant was entirely successful in the underlying motion and was entitled to costs.

However, the court deemed the Defendant's requested costs excessive for a straightforward motion and awarded $7,500.00 inclusive of HST and disbursements, rejecting the Plaintiffs' arguments against costs and their offer to settle as insufficient to reduce the award.

The Defendant brought a motion to set aside an ex-parte injunction and a Certificate of Pending Litigation (CPL) that the Plaintiffs had obtained against a property.

The Plaintiffs alleged an agreement to purchase the property from the Defendant, which the Defendant denied.

The court, conducting a de novo hearing, dissolved the injunction and ordered the removal of the CPL.

The court found that the Plaintiffs failed to meet the three-part test for an injunction, particularly regarding irreparable harm and the balance of convenience.

For the CPL, the court determined that the Plaintiffs' claim for specific performance lacked merit, as there was insufficient evidence of a written agreement under the Statute of Frauds and no demonstration of the property's uniqueness to warrant specific performance over damages.

The Crown brought an application under s. 486.2 of the Criminal Code seeking an order to allow two adult witnesses (the accused's ex-wives) to testify outside the courtroom by closed-circuit television or behind a screen during a preliminary inquiry.

The Crown also sought to have counsel appointed to cross-examine the witnesses rather than allowing the self-represented accused to do so.

The judge granted the application for appointed counsel but dismissed the application for the witnesses to testify outside the courtroom.

The judge found that the witnesses, despite their stated emotional distress, were able to testify effectively in open court without accommodation.

During long‑term offender sentencing proceedings, the defence sought to qualify a psychotherapist as an expert in the risk assessment of sexual offenders.

The proposed expert had administered certain assessment tools and prepared reports concerning the accused’s treatment and recidivism risk.

The court applied the admissibility criteria for expert evidence from R. v. Mohan and examined the witness’s qualifications, training, and professional background.

The judge concluded that the witness lacked sufficient training and expertise in risk assessment methodology to qualify as an expert in that field.

The witness was permitted to testify about treatment methods and testing used in therapy but was prohibited from providing opinion evidence on the accused’s risk of sexual recidivism.

The accused pleaded guilty to attempted murder of his wife on October 28, 2012.

The victim was stabbed multiple times in bed, pursued through the residence, and the accused subsequently set fires throughout the home and disconnected the propane line, endangering first responders.

The victim escaped through a bathroom window onto the roof.

The court imposed a sentence of nine years imprisonment with credit for 22 months of pre-trial custody, resulting in seven years and two months remaining to be served.

The sentencing considered aggravating factors including the brutal nature of the attack, breach of trust, and violation of a no-contact order, balanced against mitigating factors including the accused's advanced age (78 at time of offence), genuine remorse, guilty plea, and otherwise exemplary character.

At a preliminary inquiry, the accused was charged with first degree murder in the death of Xhuljeta Vlashi on August 27, 2012.

The Crown sought to establish that the killing was planned and deliberate.

The court heard evidence over five days from approximately thirty witnesses, reviewed agreed statements of fact, forensic reports, and eleven exhibits.

The accused suffered from documented schizophrenia and killed the one person in his life who was caring for him while she was on a video call with her niece.

The court found that while the evidence clearly established the accused killed the victim intentionally, there was insufficient evidence to support a conviction for first degree murder.

The killing appeared impulsive, rash, and irrational, with no prior animosity, threats, or rational motive.

The court committed the accused to stand trial on the lesser charge of second degree murder.