Mark G. Evans

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 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.

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 defendants, Arkadiusz Buksinski and Matthew Mcara, were charged with possession of fentanyl and crystal methamphetamine for the purpose of trafficking while inmates at the Niagara Detention Centre.

Correctional officers seized 14.5 grams of fentanyl and 18.7 grams of crystal methamphetamine from their shared cell.

The court found Mr. Buksinski guilty, based on his actions of attempting to flush contraband down the toilet upon the officers' entry and the location of the drugs near his bunk.

Mr. Mcara was found not guilty, as there was insufficient evidence to prove his knowledge or control over the drugs, despite sharing the cell.

The plaintiffs in a proposed class action against Yahoo!

Inc. and Yahoo!

Canada Co. for privacy breaches brought a consent motion for a pre-certification representation order.

The order sought to appoint Charney Lawyers PC as representative counsel to negotiate a holdback agreement with Altaba Inc. (formerly Yahoo) during its dissolution in Delaware.

This agreement would secure potential creditor claims for the approximately 5 million putative class members in Canada.

The court granted the order, finding it necessary and desirable under Rule 10.01 of the Rules of Civil Procedure and s. 12 of the Class Proceedings Act, 1992, to protect the interests of the unascertained class members and ensure the fair and expeditious determination of the class proceeding, drawing parallels to representation orders in CCAA proceedings.

The plaintiffs, trustees of a pension fund, commenced a class action in Ontario and a similar one in Federal Court.

Settlements were reached with some defendants in the Federal Court action.

The plaintiffs sought court approval to discontinue the Ontario action, with prejudice and without costs, in favour of the Federal Court proceedings.

The court granted the motion, finding no prejudice to putative class members as their claims would continue in the Federal Court, and that discontinuing the Ontario action would avoid a multiplicity of proceedings.

The defendant was charged with driving while holding a hand-held wireless communication device contrary to section 78.1(1) of the Highway Traffic Act.

The Crown alleged the defendant was holding a cell phone to his ear while driving through a tunnel.

The defendant testified he was holding a wireless speaker device that had fallen from its dashboard mount and was not actively using a cell phone at the time of the alleged offence.

The court found a reasonable doubt regarding whether the defendant was actually talking on a cell phone based on the officer's observations and lack of direct evidence of a cell phone.

However, the court determined that the wireless speaker device itself constitutes a wireless communication device under the broad interpretation of the legislation.

The defendant was found guilty of holding a wireless communication device while driving, as the device was not securely mounted as required by regulation and the defendant failed to demonstrate due diligence by picking it up while driving rather than waiting to safely pull over.

The defendant was charged with incest and sexual assault involving his half-sister.

The Crown alleged that on July 30, 2017, the defendant engaged in non-consensual sexual intercourse with the complainant while she was sleeping.

The defendant claimed the complainant was the aggressor and that he masturbated to end her advances.

The court found the defendant guilty of both offences based on the complainant's credible testimony, corroborated by DNA evidence showing the defendant's semen on and inside the complainant's body.

The defendant's explanation for the DNA evidence was rejected as implausible.

The plaintiffs in a proposed class action alleging a conspiracy to fix prices in the FX Market brought a motion to certify the action for settlement purposes and approve settlements with four groups of defendants (Barclays, HSBC, RBS, and Standard Chartered PLC).

The court reviewed the motion record and found that all criteria for certification under s. 5 of the Class Proceedings Act, 1992 were satisfied, even with a less rigorous application in a settlement context.

The motion was granted, certifying the action for settlement purposes and approving the settlements.

This costs endorsement follows a summary judgment decision where HSBC Bank Canada (the Bank) successfully dismissed Kari Holdings Inc.'s (Kari) action.

The Bank sought costs on a partial indemnity basis, arguing for substantial indemnity post-settlement offer.

Kari opposed, citing novel legal issues and undue hardship to its shareholders, or proposed a lower partial indemnity amount.

The court found the Bank was entitled to costs on a partial indemnity basis, rejecting Kari's arguments regarding novelty and shareholder hardship.

The court awarded the Bank $100,000, inclusive, payable within 30 days, considering the complexity, resources expended, and the seriousness of the allegations.

This is a costs endorsement on appeal from a partial summary judgment motion.

The appellants (lenders) and respondents (Deloitte) agreed on the quantum of costs for both the motion below and the appeal but disagreed on timing of payment.

The respondents argued costs should remain in the cause based on an alleged agreement that no money change hands on interlocutory motions until final resolution.

The Court of Appeal rejected this argument, finding it inconsistent with the respondents' own prior positions and earlier costs orders in the litigation.

The court determined that the motion judge erred in granting partial summary judgment and that costs should be fixed and payable immediately.

Kari Holdings Inc., a secured creditor, brought a summary judgment motion against HSBC Bank Canada, alleging that HSBC improperly granted overdraft protection to their mutual debtor, C.I.F. Furniture Limited (CIF), and repaid itself using collateral subject to Kari's prior security interest.

Kari sought a declaration of priority and payment of $467,455 for the alleged overdrafts and $57,260 for credit card debt.

HSBC brought a cross-motion for summary judgment dismissing Kari's action.

The court dismissed Kari's motion and granted HSBC's cross-motion, finding that HSBC did not extend credit by way of overdraft and, alternatively, that CIF's repayments were made in the ordinary course of business, which was permitted under Kari's general security agreement.

The defendant was tried on charges of possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

Police acting on information from a confidential informant conducted surveillance of the defendant, observing him make three brief visits to high-crime locations over 40 minutes.

Upon arrest, police seized 19.9 grams of crack cocaine, four cell phones, a knife, and $1,275 in cash.

The defendant challenged the admissibility of the evidence on Charter grounds.

The court found that police had reasonable and probable grounds to arrest based on the totality of circumstances, including the credibility of the informant, the compelling nature of the information, and police corroboration through surveillance.

The court admitted the evidence and found the defendant guilty of both charges.

The defendants brought a motion to disqualify the plaintiff's counsel, Gowling WLG (Canada) LLP ("Gowlings"), from further representing the plaintiff.

The defendants argued that Gowlings possessed confidential information obtained during failed negotiations with four dissident partners (now associated with the defendants) and that Gowlings partners were likely material witnesses.

The court found that Gowlings held confidential information relevant to the claims, imparted under a reasonable expectation of confidentiality, and that there was a risk of misuse.

Given the lack of an immediate and effective ethical wall, and the early stage of litigation, the court granted the motion, disqualifying Gowlings.

The potential for Gowlings partners to be witnesses was considered an additional factor supporting disqualification.

Following a successful partial summary judgment motion, the defendants sought costs of $700,000 plus disbursements payable forthwith.

The plaintiffs argued costs should be in the cause.

The court agreed with the plaintiffs that costs should be in the cause, as the trial was imminent and the trial judge would be in the best position to allocate liability for costs.

The court clarified that the costs would be in the cause of the specific plaintiff's action, not the consolidated action involving a receiver.