Martin S. James

The accused brought a Charter application under s. 24(2) seeking exclusion of a handgun discovered during a traffic stop, alleging breaches of ss. 8, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms.

Police had stopped the vehicle for a defective tail light, discovered a hunting knife in the door compartment, and conducted a safety-focused scan of the vehicle interior that revealed a loaded handgun beside the driver’s seat.

The court held the officer was entitled to conduct a limited safety search of the vehicle in the context of an investigative detention following discovery of the knife.

Even if the search had been unreasonable, the Grant factors favoured admission of the handgun evidence.

The Charter application was dismissed.

The appellant appealed a Small Claims Court decision finding it liable in nuisance, trespass, and negligence for noise and odour emanating from its temporary asphalt plant.

The Superior Court of Justice upheld the finding of liability in nuisance, concluding the trial judge made no palpable and overriding error in assessing the severity of the interference or the character of the neighbourhood.

The court also upheld the trial judge's decision to qualify an expert witness employed by an environmental advocacy group, finding her employment did not automatically disqualify her.

However, the court allowed the appeal regarding trespass and negligence, finding that noise and odour are indirect intrusions that do not constitute trespass, and that the respondents suffered no personal injury or property damage compensable in negligence.

The damages award of $14,700 was upheld.

The appellant construction company appealed a Small Claims Court judgment awarding the respondent residents $14,700 in damages for nuisance, trespass, and negligence arising from noise and odour emitted by a temporary asphalt plant.

The Divisional Court upheld the finding of liability in nuisance, concluding the trial judge made no palpable and overriding errors in assessing the severity of the interference or the character of the neighbourhood.

The court also upheld the trial judge's decision to qualify the respondents' expert witness despite her employment with an environmental advocacy group.

However, the court allowed the appeal regarding trespass and negligence, finding that noise and odour are indirect intrusions that do not constitute trespass, and that the respondents suffered no compensable personal injury or property damage to ground a negligence claim.

The damages award remained unchanged.

The plaintiffs sought clarification of a prior costs endorsement issued following an adjournment request on a motion.

The court reviewed the earlier endorsement and clarified that the costs award of $1,250 plus HST was intended to cover both the costs thrown away and the disposition of relief sought in specific paragraphs of the notice of motion.

The judge confirmed that the order was not intended to award $1,250 plus an additional amount for costs thrown away.

No further appointment was required to resolve the issue.

During a criminal jury trial, defence counsel sought leave to comment in closing submissions on the Crown’s failure to call a police witness who had relevant observations regarding the complainant’s impairment.

The court held that an adverse inference against the Crown was unavailable because the officer was ultimately called as a defence witness and testified.

The proposed defence submission criticizing the Crown’s decision not to call the officer was found improper because it focused on Crown counsel personally rather than the evidence.

However, the court permitted a separate submission highlighting evidence that the officer was described as thorough and capable, as it related directly to the evidentiary record.

The ruling emphasized that counsel have broad discretion in choosing which witnesses to call and discouraged personal commentary about opposing counsel’s litigation decisions.

The Crown sought to introduce a video recording of a complainant’s participation in a photographic lineup following a robbery.

During the lineup, the complainant initially selected the wrong photograph but verbally described identifying characteristics of the robber while reviewing the sequence.

The defence objected on the basis that the video constituted inadmissible hearsay, lacked probative value due to the erroneous identification, and risked impermissible prior consistent statements.

The court held that evidence of out-of-court identification and the identification process may be admitted as original evidence, particularly where the identifying witness testifies and is subject to cross‑examination.

The video evidence was admissible because it provided the jury with the full narrative of the identification process and assisted in assessing the reliability of the witness’s observations.

The plaintiffs brought a motion seeking leave to amend their statement of claim to discontinue certain plaintiffs, add a municipal lawyer as a defendant, and deliver a fresh as amended statement of claim alleging malicious prosecution and related torts.

The court held that the proposed addition of the new defendant was barred by the applicable limitation period under the discoverability principle, as the plaintiff had knowledge of the individual’s alleged involvement more than two years before the motion was argued.

The court found that merely delivering a motion before the limitation period expired did not suspend the running of time; the motion must be successfully argued within the limitation period.

As a result, the request to add the proposed defendant and amend the claim to seek damages against him was refused, although leave to discontinue certain plaintiffs was granted.

Costs were awarded against the moving party.

The plaintiff brought a motion to set aside a registrar’s administrative dismissal of her personal injury action for delay.

The action arose from alleged injuries caused by a defective gas fire appliance in a condominium unit.

The court considered the contextual factors governing relief from dismissal for delay, including explanation for delay, inadvertence in missing deadlines, diligence in bringing the motion, and prejudice to the defendants.

Although procedural deadlines had been missed and the action had experienced delays, the court accepted that the delays were explained by changes in counsel, health issues, and difficulties obtaining documents from former lawyers.

Finding no demonstrated prejudice to the defendants and that the plaintiff acted promptly once aware of the dismissal, the court set aside the registrar’s order and directed the defendants to schedule a case conference.

Child protection disposition following an amended status review under the Child and Family Services Act concerning two young children with significant behavioural and developmental challenges.

The applicant society sought Crown wardship without access for the purpose of adoption and a restraining order against the father.

Both parents opposed the application and proposed separate plans of care, including supervision orders and kinship placement with maternal grandparents.

The court found the children continued to be in need of protection and that neither parent’s plan provided sufficient stability, parenting capacity, or ability to work cooperatively with required support services.

Crown wardship for the purpose of adoption was ordered and a restraining order was issued restricting the father’s contact with the society, foster parents, and future adoptive parents.

The Crown brought a motion during a jury trial seeking to prevent the accused from advancing the defence of honest but mistaken belief in communicated consent.

The issue was whether there was sufficient evidence to meet the “air of reality” threshold under s. 265(4) of the Criminal Code.

Applying the governing test from appellate jurisprudence, the court held that the trial judge must assume the defence evidence is true and determine only whether a properly instructed jury could acquit if it believed that evidence.

The court found that the accused’s testimony provided some evidence capable of supporting the defence, including evidence relating to the complainant’s conduct and inconsistencies in prior statements.

The court ruled that the defence met the minimal threshold and could be put to the jury.

In a child protection status review proceeding under the Child and Family Services Act, the respondent mother brought a motion seeking temporary care and custody of two children pending trial, or alternatively expanded unsupervised access.

One child had been apprehended and placed in foster care, while the other was residing with the father under a supervision order.

The court considered whether the apprehended child should be returned to the mother pursuant to s. 51(2) of the Act and whether a change in the existing supervision arrangement was warranted under s. 64(8).

The court found credible evidence suggesting a risk of harm arising from the mother's lifestyle choices, including concerns regarding drug use, exposure to prohibited contact, and instability.

The motion was dismissed and the existing placement arrangements remained in place pending trial.

An estate trustee sought court approval of estate accounts on a passing of accounts application.

A beneficiary objected, alleging mismanagement including improper distributions, executor compensation, undervaluation of land, and administrative delays.

The court found the objections to be unfounded and confirmed the trustee had acted within the broad discretionary authority granted under the will and in good faith.

The accounts were approved.

Because the objections caused additional unnecessary litigation expense, the court ordered a portion of the resulting costs to be deducted from the objector’s entitlement.

The moving defendant sought to set aside a previously granted Mareva injunction obtained without notice, alleging inadequate evidence, hearsay, and failure by the plaintiffs to make full and frank disclosure.

The court examined alleged deficiencies including the presentation of SMS message data, inaccuracies in affidavit evidence, and hearsay regarding customer orders.

While the court acknowledged certain imperfections and minor inaccuracies in the evidence, it concluded that the original motion judge had sufficient admissible evidence to justify the injunction.

The court held that minor imperfections or omissions in ex parte proceedings do not automatically invalidate relief where the overall evidentiary foundation remains adequate.

The Mareva order was therefore maintained, subject to a minor agreed amendment.

The payor parent brought a motion seeking reimbursement of child support paid for an adult child who repeatedly failed post-secondary courses and was largely absent from school, relying on the Farden factors to argue the child was no longer dependent.

The responding parent sought reinstatement of support and claimed arrears and retroactive extraordinary expenses.

The court found that the adult child’s academic record demonstrated a lack of sustained commitment to education and concluded the payor’s support obligation ended in April 2009.

The court determined the payor had overpaid support and ordered reimbursement, while maintaining support for a second child who was successfully attending university.

A set-off mechanism was ordered whereby ongoing support would be credited against the repayment obligation owed by the responding parent.

The moving party brought a motion to change seeking over $26,000 in alleged child support arrears and retroactive child support.

The court found that arrears under the existing order had not been proven, but accepted that the responding party’s income had increased significantly in prior years and that he had failed to comply with an obligation to annually disclose income.

After considering the parties’ circumstances, including the responding party’s other support obligations and claims of hardship, the court ordered a retroactive adjustment of $12,000 payable in monthly installments.

The court also adjusted ongoing child support below the guideline amount, taking into account payments being made for another child and the possibility that the biological father of one child could be pursued for support.

The appellant appealed a Small Claims Court decision dismissing his claim for damages arising from alleged defective paving work on his driveway.

He argued that the respondent failed to properly prepare the sub-base and should have installed a geotextile membrane due to the presence of clay, leading to cracking and alleged sinking of the driveway.

The appellate court held that the trial judge reasonably found the appellant failed to prove the presence of clay, subsidence, or substandard workmanship.

The court also held that evidentiary rulings and minor factual misstatements by the trial judge did not constitute reviewable error affecting the outcome.

Applying appellate deference to factual findings, the court dismissed the appeal.

Following a motion to change child support, the court addressed costs.

The moving party had sought to reduce monthly child support to zero and obtain a share of the Child Tax Benefit.

The court reduced child support from $300 per month to $100 and granted a share of the Child Tax Benefit, but declined retroactive relief.

Despite the responding party serving an offer to settle that was close to the final result, the court found the moving party was largely successful and awarded partial costs.

The accused was charged with sexual assault arising from an alleged incident during a work-related overnight stay at a rural property.

The complainant testified she believed she had been drugged and sexually assaulted after consuming alcohol and losing memory of the evening, awakening naked in the accused’s bed the next day.

The accused denied drugging the complainant and maintained that any sexual contact was consensual and initiated by the complainant.

The court emphasized the presumption of innocence and the requirement for proof beyond a reasonable doubt.

Given credibility concerns, the complainant’s lack of recollection, the absence of corroborating evidence of drugging, and post‑incident conduct inconsistent with the alleged assault, the court found that the evidence did not establish guilt beyond a reasonable doubt.

On a family law motion, the respondent to a motion to change sought temporary orders for spousal support arrears, financial disclosure relating to the other party’s corporation, reimbursement of extraordinary child expenses, return of the children’s passports, and compensation including costs.

The court found that an earlier order suspending support payments was intended only to suspend child support, not spousal support, and that the other party improperly ceased paying both.

Arrears of spousal support were calculated at $6,600 and ordered payable forthwith, with ongoing monthly payments continuing under the prior consent order.

The court also ordered expanded financial disclosure regarding corporate financial statements and related-party benefits.

Claims for extraordinary expenses, passport return, and compensation were dismissed due to insufficient evidence or lack of entitlement.

Following an eight‑day family law trial involving a claim for unjust enrichment and claims for retroactive and ongoing child support, the court determined the issue of costs.

The applicant had served a written offer to settle before trial that was more favourable to the respondent than the ultimate result.

Applying rule 18.14 of the Family Law Rules, the court held that a strong presumption arises in favour of awarding full recovery of legal costs incurred after the offer where the opposing party fails to obtain a better result at trial.

The court found the hourly rate and time claimed by the applicant’s counsel to be reasonable and rejected arguments that the costs should be reduced.

Costs were fixed at $43,163.21 inclusive of fees, HST, and disbursements.