L. C. Leitch

The appellant appealed his convictions for impaired driving and refusing to provide a breath sample.

He argued the trial judge erred by admitting a video of his interaction with the breath technician who was unavailable to testify, finding no breach of his s. 10(b) Charter right to counsel, and rejecting his defence that his autism spectrum disorder provided a reasonable excuse for refusing the breath demand.

The Superior Court of Justice dismissed the appeal, finding the video was admissible as direct evidence, the appellant failed to exercise due diligence in contacting counsel, and the trial judge's findings on impairment and lack of reasonable excuse were supported by the evidence.

The Licensed Insolvency Trustee brought a motion to approve a proposal made by the bankrupt, a real estate holding company whose primary assets were 62 unserviced residential lots.

An opposing creditor argued the proposal was not properly authorized by the corporation, failed to meet statutory requirements under the Bankruptcy and Insolvency Act, and was unreasonable as it primarily benefited the other shareholders.

The court found that the proposal was authorized in substance, did not violate statutory priority or conduct rules, and was reasonable as it forecasted a significantly higher return to creditors than a liquidation in bankruptcy.

The proposal was approved and a confidential valuation supplement was ordered sealed.

The applicants were charged with possession of marijuana for the purpose of trafficking and brought an application for a stay of proceedings, alleging their right to be tried within a reasonable time under s. 11(b) of the Charter was infringed.

The total delay from the swearing of the information to the anticipated end of trial was approximately 42 months.

Applying the framework from R. v. Jordan, the court deducted defence delay but found the net delay still exceeded the 30-month presumptive ceiling for superior courts.

The court rejected the Crown's arguments that defence certiorari applications constituted discrete exceptional events and found no transitional exceptional circumstances justified the delay.

The applications were allowed and a stay of proceedings was granted.

The defendants brought motions for summary judgment to dismiss the plaintiff's negligent misrepresentation claim arising from a real estate appraisal.

The plaintiff had relied on the appraisal to advance a second mortgage, but later discovered the property was worth significantly less.

The court granted the summary judgment motions, finding that the plaintiff's claim was statute-barred under the Limitations Act, 2002, as he knew or ought to have known he had suffered a loss more than two years before commencing the action.

The plaintiff sought leave to appeal a motion judge's order denying an amendment to the class definition to include all downstream purchasers of LCD panels and products.

The court found no good reason to doubt the correctness of the motion judge's decision, noting that the motion judge properly exercised discretion under the Class Proceedings Act and correctly characterized the plaintiff's attempt to re-litigate a previously settled issue as an abuse of process.

Leave to appeal was denied.

During a medical malpractice trial involving a newborn who developed kernicterus from untreated jaundice, the plaintiffs sought to qualify a registered nurse as an expert in perinatal nursing.

The defendants objected, arguing she lacked specific recent experience in tertiary hospital nurseries and was a 'roaming expert.' The court applied the Mohan and White Burgess frameworks, finding the proposed expert possessed the requisite specialized knowledge and experience in newborn care and jaundice assessment.

The court admitted the expert evidence, concluding its probative value outweighed any potential prejudice.

The defendant law firm brought a motion to dismiss the plaintiff's 2006 action for delay under Rule 24.01.

The action involved allegations of knowing assistance in a breach of fiduciary duty.

The court reviewed the litigation history, noting periods of delay but also cooperative efforts between counsel and interlocutory motions.

The court found that the delay was not inordinate or inexcusable, and that the defendant failed to establish a substantial risk that a fair trial was no longer possible, as discoveries on liability were complete and documentary evidence was preserved.

The motion was dismissed.

The plaintiff brought a motion to restore his wrongful arrest and negligent investigation action to the trial list after it was struck due to his lack of counsel.

The court found that because there was no impending dismissal under the amended Rule 48.14, the strict Nissar test did not apply.

The court concluded the action was ready for trial, the delay was reasonably explained by the plaintiff's efforts to retain new counsel, and the defendants would suffer no non-compensable prejudice.

The motion was granted and costs of $3,000 were awarded to the plaintiff.

The plaintiffs brought a motion to restore a personal injury action to the trial list, discontinue the Family Law Act claims of two siblings, and remove counsel of record for the parents.

The defendants consented to the discontinuance but sought a condition allowing them to examine the siblings for discovery, arguing their evidence was necessary to understand the injured plaintiff's pre-accident condition given his traumatic brain injury and young age at the time of the accident.

The court granted the discontinuance on the condition that the defendants may examine the siblings for discovery, distinguishing prior case law due to the unique circumstances and lack of alternative sources for the information.

The court also granted the order removing counsel of record for the parents.

The representative plaintiff in a securities class action sought court approval of an $11 million settlement agreement, a plan of distribution, and class counsel fees.

The action alleged that the defendants misrepresented the development costs of a mining project.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting the significant litigation risks, including proving liability and overcoming statutory liability caps under the Securities Act.

The court also approved the plan of distribution, the appointment of the claims administrator, and class counsel's fee request of $2.75 million (25% of the settlement) plus disbursements, finding them fair and reasonable given the results achieved and risks assumed.

The parties sought costs following a certification motion (where the plaintiffs were successful) and a jurisdiction motion (where the defendants were successful).

The plaintiffs initially sought over $600,000 but reduced their claim to $268,301.22, while the remaining defendants sought $228,575.05.

The court found the jurisdiction motion was highly complex and awarded the defendants their full requested amount.

For the certification motion, the court noted that class counsel had already been substantially compensated through prior settlements with other defendants.

The court awarded the plaintiffs $228,575.05 for the certification motion and ordered the two costs awards to be offset against each other.

The plaintiffs in a price-fixing class action regarding air freight shipping services brought a motion for approval of a notice of hearing regarding a settlement with one of the defendants.

The plaintiffs also sought orders requiring non-settling defendants and a non-party association to produce customer information, and authorizing freight forwarders to voluntarily disclose customer information, to facilitate the notice and claims process.

The court approved the notice plan and granted the production orders, finding that section 12 of the Class Proceedings Act satisfies the requirements for disclosure under section 7(3)(c) of the Personal Information Protection and Electronic Documents Act.

The plaintiff brought a motion seeking leave to amend the statement of claim to add a declaration that she was a victim of crime under the Victims’ Bill of Rights, 1995 and to obtain substantial indemnity costs against the defendant who had pleaded guilty to dangerous driving.

The motion also sought summary judgment declaring the plaintiff a victim of crime and fixing costs payable by the Motor Vehicle Accident Claims Fund.

The court held that the proposed amendment constituted a new cause of action advanced 13 years after the accident and after the limitation period had expired, creating presumed non‑compensable prejudice to the defendant.

The court further found the evidentiary record insufficient to justify enhanced costs under the Victims’ Bill of Rights and inadequate to support the requested cost award.

The motion was therefore dismissed.

The representative plaintiff in a proposed national class action alleged that multiple manufacturers conspired to fix prices of polyurethane foam and carpet underlay products.

The plaintiff brought a motion seeking court approval of several negotiated settlement agreements with numerous defendants totaling approximately $29.28 million for the benefit of the class, along with cooperation provisions to assist claims against remaining defendants.

An objector argued that the settlements should not be approved until a distribution protocol and damages analysis were finalized.

The court held that settlement approval can properly occur before approval of a distribution protocol and that the negotiated settlements were fair, reasonable, and in the best interests of the class given the complexity, litigation risk, and absence of meaningful objections.

The settlements were therefore approved.

The defendant moved for an order compelling the plaintiff, who resides in British Columbia, to post security for costs in an action alleging historical abuse.

The plaintiff opposed the motion on the basis of impecuniosity.

The court found that the plaintiff had made full and frank disclosure of her financial circumstances, establishing that she was impecunious.

The court also found that the plaintiff's claim, which would largely turn on credibility, was not plainly devoid of merit.

The motion for security for costs was dismissed, with costs of $5,000 awarded to the plaintiff.

The defendants brought a motion for summary judgment dismissing a personal injury action arising from a slip and fall in a grocery store produce section.

The plaintiff alleged she slipped on water and/or ice originating from broccoli displayed on crushed ice.

The defendants argued they maintained a reasonable inspection and maintenance system and that the area had been inspected minutes before the fall.

The court held that conflicting evidence regarding the store’s drainage system, staff training, and compliance with inspection procedures created genuine issues requiring a trial.

The motion for summary judgment was therefore dismissed.

A media organization applied under s. 487.0193 of the Criminal Code to revoke or vary a production order requiring it to produce unedited recordings of interviews with an accused person broadcast by television and radio.

The applicant argued that compliance was unreasonable and that the court should review the validity of the production order, particularly considering the media’s role under s. 2(b) of the Charter.

The court held that the statutory review under s. 487.0193 concerns whether compliance with the order is unreasonable, not whether the issuing justice properly granted the order, which remains the domain of certiorari review.

Applying the principles governing production orders and the special considerations for media searches articulated in CBC v. Lessard, the court found the order reasonable.

The requested material was already prepared and publicly broadcast, making compliance neither onerous nor intrusive on press freedom.

The applicant brought a motion to change a 1996 child support order, seeking retroactive child support, ongoing support for an adult child in full-time studies, and contribution to section 7 expenses.

The respondent had failed to provide income disclosure for several years and had received a grievance settlement after his employment was terminated.

The court ordered ongoing child support, fixed arrears at $12,500.40 retroactive to 2006 (including the grievance settlement in his income), ordered contribution to section 7 expenses, and required the respondent to maintain life insurance.

The applicant was awarded $10,000 in costs due to the respondent's failure to make timely financial disclosure.

The applicants and respondents, siblings, settled an estate litigation matter regarding their mother's estate and the respondents' actions as attorneys for property and estate trustees.

The settlement left the issue of costs to be determined by the court.

Both the applicants and the respondents sought their costs on a substantial indemnity basis.

The court found that the commencement of the application was reasonable and that the respondents had failed to adequately address the applicants' reasonable questions early on.

However, given the divided success in the settlement, the court ordered that each party bear their own costs.

The appellant appealed a summary conviction for assault under s. 266 of the Criminal Code arising from a domestic dispute in which he grabbed a tape recorder from the complainant’s hand.

The trial judge had concluded that the act of grabbing the object constituted a non-consensual touching and therefore an assault.

On appeal, the court considered whether taking an object from another person’s hand necessarily constitutes the application of force required for assault and also addressed allegations of judicial bias arising from comments made by the trial judge during the proceedings.

The court held that although the trial judge’s comments were unnecessary, they did not meet the high threshold for a finding of reasonable apprehension of bias.

However, the court found that the trial judge erred in law by concluding that grabbing the recorder constituted an assault in the absence of evidence of force applied to the complainant.

The conviction was quashed and a new trial ordered.