Mark G. Evans

The defendants brought an application challenging the facial validity of a search warrant authorizing the search of a residence in Niagara Falls, arguing a violation of their section 8 Charter rights.

The Information to Obtain (ITO) relied on confidential informant tips and police surveillance to establish reasonable grounds to believe the targets were trafficking cocaine.

However, the ITO failed to establish a sufficient nexus between the alleged drug trafficking and the targeted residence.

The court found the warrant facially invalid.

Applying the section 24(2) Charter analysis, the court concluded that the police conduct was careless and the impact on the defendants' privacy rights was severe, outweighing society's interest in adjudicating the case on its merits.

The application was granted and the evidence obtained from the search was excluded.

The debtor applicants sought court approval for a pre-packaged sale ('quick flip') of their assets to a new company owned by existing management, pursuant to section 36 of the CCAA.

The proposed transaction was supported by the senior secured creditor but opposed by a subordinate secured creditor, BDC Capital Inc., who was excluded from the sales process and given minimal notice.

The Superior Court of Justice dismissed the motion, finding that the debtor failed to meet its burden under sections 36(3) and 36(4) of the CCAA.

The court held that the sales process lacked transparency, failed to make good faith efforts to sell to unrelated parties after the senior debt was purchased at a discount, and did not demonstrate that the proposed consideration was superior to other potential offers.

The appellant, a former lawyer, sued the respondent banks for freezing his accounts after he was charged with money laundering and fraud.

The motion judge granted summary judgment dismissing the action and awarded $225,000 in substantial indemnity costs against the appellant.

On appeal, the Court of Appeal upheld the summary judgment, finding no genuine issue for trial despite the respondents' delay in bringing the motion.

However, the Court granted leave to appeal the costs award, reducing it to $175,000 on the basis that the unaccepted settlement offer should not have elevated costs incurred prior to the offer being made.

The accused was charged with break and enter and sexual interference after an intruder entered an eight-year-old boy's bedroom in the middle of the night and kissed him.

The Crown's case relied on circumstantial evidence, including CCTV footage, a fingerprint on the window, the accused's diary entries, and similar fact evidence of other nearby break-ins.

The court applied the Villaroman framework and concluded that the only reasonable inference was that the accused was the intruder.

The court further found that the act of sneaking into a child's bed to kiss him was done for a sexual purpose.

The accused was found guilty of both charges.

The accused was tried on an allegation of operating or having care and control of a motor vehicle while impaired by a drug after being found twice the same evening asleep or unresponsive in a parked vehicle with the engine running.

The Crown relied heavily on a drug recognition expert opinion and urinalysis results engaging the presumptions in s. 320.31(6) of the Criminal Code.

The court accepted much of the accused's evidence regarding anxiety, physical limitations, fatigue, and earlier drug use, and found significant frailties in the DRE evidence, including the absence of video, inconsistent handling of personal characteristics, and ambiguous test indicators.

Applying W.(D.), the court held the Crown failed to prove beyond a reasonable doubt either impairment of the ability to operate a conveyance or that any impairment was caused by alcohol or a drug.

The accused was acquitted.

This decision determines the costs following the defendants' successful motion for summary judgment in a long-running civil action.

The defendants sought substantial indemnity costs totaling $371,885.64 for both the motion and the underlying action, while the plaintiff proposed a significantly lower sum of $62,648.44.

The court found that the plaintiff's rejection of a reasonable 2018 settlement offer, his unfounded claim for punitive damages, and his contradiction of discovery admissions justified costs on a substantial indemnity scale.

Ultimately, the court fixed the total costs award at $225,000 inclusive of taxes and disbursements, payable by the plaintiff to the defendants.

The court granted summary judgment in favour of HSBC Bank of Canada and HSBC Securities Canada Inc., dismissing Kenneth James's claims for conversion, intentional interference with economic relations, defamation, and punitive damages.

The court found that HSBC acted within its contractual and legal rights in freezing and managing the plaintiff’s accounts following criminal charges and a restraining order, and that all funds (except those in Hong Kong, over which HSBC Canada had no control) were returned to the plaintiff after his acquittal.

The court held there was no genuine issue requiring a trial.

The court considered whether to instruct the jury on the defence of honest but mistaken belief in consent in a sexual assault trial.

The defence requested the instruction, but the Crown opposed.

After reviewing the evidence and relevant case law, the court found that the air of reality test was not met and declined to instruct the jury on this defence.

The decision discusses the legal standards for the air of reality test, the reasonable steps requirement, and the dangers of impermissible "twin myth" reasoning.

The defendant was convicted of possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime.

The Crown sought a penitentiary term of three years and six months, while the Defence argued for a conditional sentence.

The court considered the principles of sentencing, including proportionality, denunciation, and deterrence, alongside the defendant's difficult personal circumstances, including a history of substance abuse, foster care, and recent efforts towards rehabilitation and parenting.

The court found that a penitentiary sentence was not appropriate given the defendant's background and low-level involvement in trafficking, and imposed a conditional sentence of two years less a day, with house arrest and other conditions, along with ancillary orders.

The defendant was charged with possession of methamphetamine for the purpose of trafficking and possession of the proceeds of crime following the execution of a search warrant at his residence.

Police surveillance observed activities consistent with drug trafficking.

A search of the defendant's apartment revealed a significant quantity of methamphetamine (98.3 grams), drug paraphernalia (scales, baggies with residue), a drug debt list, and cash.

The defendant denied knowledge and possession, attributing the items to a transient roommate.

The court rejected the defendant's testimony as incredible, finding that the circumstantial evidence, including items in plain view and the drug debt list linked to him and his associates, proved his guilt beyond a reasonable doubt.

The accused, Dennis Frail and Ana Maglicic, were charged with aggravated assault.

The court assessed witness credibility, noting inconsistencies in the victim's and a key witness's testimony.

The Crown's first theory of liability for aggravated assault was dismissed due to reasonable doubt regarding causation of the orbital bone injury and the victim's overall credibility.

Dennis Frail was acquitted of both aggravated assault and the included offense of simple assault, as the Crown failed to prove he applied force.

Ana Maglicic was found guilty of simple assault; her defence of another person under s. 34 of the Criminal Code failed as her actions were found to be motivated by aggression and vengeance, not solely for defensive purposes.

In a certified and settled class action against Yahoo!, Class Counsel brought a motion to resolve conditions of the settlement approval and finalize administration.

The court approved a second notice program, awarded additional Class Counsel fees of $541,869.22 plus disbursements, and allocated a portion of the accrued interest on the settlement fund to Class Counsel.

The court also recalculated the Class Proceedings Fund levy.

However, the court dismissed Class Counsel's request for retroactive payment of omitted docketed time, finding it was counsel's own error.

In a criminal trial for aggravated assault, the Crown sought to admit a witness's prior inconsistent statement for the truth of its contents.

The witness had recanted parts of her police statement given shortly after the incident, claiming intoxication at the time.

The court applied the principled approach to hearsay, assessing necessity and threshold reliability.

While necessity was met due to the witness's recantation, the court found insufficient indicia of procedural and substantive reliability.

Factors such as the witness's intoxication, absence of an oath or warning, lack of video/audio recording, and unclear circumstances of the statement's taking undermined its trustworthiness.

Despite the witness's availability for cross-examination, the court concluded that the statement's reliability was not sufficiently established to allow the trier of fact to rationally evaluate it.

The application to admit the statement was dismissed, as its low probative value was outweighed by its prejudicial effect.

The plaintiffs appealed the dismissal of their motion to certify a class action against several discount brokers regarding the receipt of mutual fund trailing commissions.

The motion judge had found no basis in fact for the core proposed common issue of whether the receipt of such commissions contravened applicable Canadian securities law prior to their explicit prohibition in 2022.

The Divisional Court dismissed the appeal, finding that the motion judge correctly applied the 'some basis in fact' test, properly concluded that all pleaded causes of action relied on the allegation of illegality, and appropriately held the plaintiffs to their strategic concession that the entire action would fail if the core issue was not certified.

This is an appeal from a motion judge's decision dismissing the plaintiffs' motion to amend their pleadings in a class action alleging a multi-bank conspiracy to fix gold and silver prices and engage in 'spoofing'.

The motion judge had found the proposed amendments time-barred or improper for joinder.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by treating amendments as new causes of action when they were alternative theories based on existing facts, and by misapplying the 'actual knowledge' standard for limitation periods.

The Court also found a palpable and overriding error in the motion judge's assessment of JP Morgan's joinder, concluding that the CFTC order did not preclude conspiratorial spoofing allegations.

The amendments were allowed, with the possibility for some respondents to plead a limitations defence at trial.

The offender pleaded guilty to possession of cocaine for the purpose of trafficking after police found over 280 grams of cocaine and crack cocaine in his residence.

The Crown sought a 3.5-year penitentiary sentence, while the defence requested a conditional sentence of two years less a day, citing collateral immigration consequences.

The court rejected the conditional sentence, finding the commercial nature and large quantity of drugs warranted a penitentiary term to address denunciation and deterrence.

The offender was sentenced to two years in a federal penitentiary.

The applicant, Bluecore Capital Inc., brought a bankruptcy application against the respondent, Sergio Grillone, a former lawyer, based on his failure to repay a litigation funding loan.

The respondent brought a motion for a mis-trial, alleging evidence tampering and perjury by the applicant's counsel and witness regarding the version of the loan agreement entered into evidence.

The court dismissed the mis-trial motion, finding the evidentiary irregularities were inadvertent and did not cause a miscarriage of justice.

The court granted the bankruptcy application, finding the applicant proved a debt exceeding $1,000 and an act of bankruptcy.

The court held that special circumstances existed to allow a single creditor application due to the respondent's litigious conduct and the multiplicity of claims against him, making a bankruptcy proceeding the most efficient way to manage his estate.

The plaintiffs brought a motion to certify a class action against seven discount brokers, alleging that their receipt of mutual fund trailing commissions prior to the 2022 prohibition was illegal.

The court found that the plaintiffs failed to satisfy the 'some evidence' requirement to show that the practice contravened applicable Canadian securities law.

The evidence filed by the plaintiffs themselves demonstrated that the practice, while controversial, was not illegal before the regulatory amendments took effect.

The motion for certification was dismissed.

The defendant, a bank incorporated in Hong Kong, brought a motion to stay the plaintiffs' action for lack of jurisdiction or, alternatively, on the basis of forum non conveniens.

The plaintiffs, an Ontario resident and a Panamanian company, sued the defendant over funds held in Hong Kong accounts that were not transferred as instructed.

The court found it had jurisdiction simpliciter because the alleged tort of negligent misrepresentation occurred in Ontario.

However, the court exercised its discretion to stay the action, concluding that Hong Kong was the clearly more appropriate forum given the location of key witnesses, the governing law of the banking contracts, and the location of the funds.

The defendant brought two motions in an action arising from a fire that damaged equipment at a mining project.

The first motion sought to compel the third party insurance broker to answer refusals from examinations for discovery.

The second motion sought to compel a non-party independent adjuster to produce its complete file and attend an examination.

The court ordered the insurance broker to answer most of the refusals, finding them relevant to the allegations regarding the review of insurance coverages.

Regarding the non-party production, the court found that the adjuster's file contained relevant documents but ordered a staged approach to production to balance the interests of the non-party.

The motion to examine the adjuster was adjourned pending the resolution of documentary production.