Mark G. Evans

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 offender, a 50-year-old college professor and first offender, pleaded guilty to importing prohibited firearm parts (selector switches for a Glock) and possession of a prohibited firearm (a Derringer pistol).

The Crown sought a reformatory sentence of real jail, while the defence sought a 12-month conditional sentence.

The court considered the offender's exceptional background, genuine remorse, and low risk of reoffending, balanced against the extreme danger of fully automatic firearms.

The court imposed an 18-month conditional sentence to be served under house arrest, followed by 18 months of probation, 200 hours of community service, a $7,500 victim surcharge, a 10-year weapons prohibition, and a DNA order.

The plaintiff in a class action alleging a price-fixing conspiracy regarding film capacitors moved for approval of a settlement with the Panasonic defendants and for approval of class counsel fees.

The court found the $1.35 million settlement, which included valuable cooperation from the settling defendants, to be fair and reasonable despite being heavily discounted from the estimated exposure.

The court also approved the requested class counsel fees of 25% of the settlement, but ordered the payment to be split into two installments to incentivize counsel to advance the litigation more expeditiously.

The plaintiffs brought a summary trial motion claiming the defendants infringed their registered HOSTESS trademarks, committed passing off, and depreciated goodwill by selling bread under the HOSTESS name.

The Federal Court granted the motion in large part, finding the marks were valid and the defendants' use caused confusion, infringement, passing off, and depreciation of goodwill.

The court awarded $10,000 in damages and injunctive relief against the corporate defendants but dismissed the claim against the personal defendant.

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 found guilty of incest and sexual assault against his 18-year-old half-sister.

The victim awoke to find the defendant sexually assaulting her.

The court considered the defendant's difficult childhood and lack of a prior criminal record as mitigating factors, but noted the lack of remorse and the significant harm caused to the victim.

Emphasizing denunciation and general deterrence, the court sentenced the defendant to two years less one day in custody, followed by one year of probation.

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 class action alleging a price-fixing conspiracy in the foreign exchange market moved for approval of six settlements totaling $51.5 million.

The court reviewed the settlements in light of the estimated range of total damages, the litigation risks, and the value of the settling defendants' cooperation.

Finding the settlements to be fair, reasonable, and in the best interests of the class, the court approved the settlements.

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 plaintiffs brought a proposed class action alleging that the defendant financial institutions conspired to fix prices in the foreign exchange (FX) market.

The plaintiffs reached settlement agreements with three groups of defendants (Goldman Sachs, JPMorgan, and Citi) totaling $39.25 million.

The plaintiffs moved for an order certifying the action as a class proceeding for settlement purposes against these settling defendants and approving the notice plan.

The court found that the criteria for certification under section 5 of the Class Proceedings Act, 1992 were satisfied and granted the order.

The appellants, a syndicate of lenders, sued the respondent auditors for negligent and reckless misrepresentation after advancing funds to a company based on audited financial statements that failed to disclose a massive accounting fraud.

The motion judge granted partial summary judgment dismissing the lenders' negligence claim, finding that the spectre of indeterminate liability negated the auditors' prima facie duty of care.

The Court of Appeal allowed the appeal, holding that partial summary judgment was inadvisable in the context of the litigation as a whole due to the real risk of duplicative or inconsistent findings at the upcoming trial on the remaining claims.

The plaintiffs brought a class action alleging that numerous financial institutions conspired to manipulate the foreign exchange market.

The plaintiffs reached early settlements with three groups of defendants (UBS, BNP, and Bank of America) totaling $15,950,000.

The plaintiffs sought court approval of the settlements and Class Counsel's fee request.

The court approved the settlements, finding them fair, reasonable, and in the best interests of the class, particularly given the litigation risks and the value of the settling defendants' cooperation.

The court also approved Class Counsel's fee request of $3,987,500 plus disbursements.

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.