M. Henein

The defendant, The Walt Disney Company, previously brought a motion to seal excerpted provisions of agreements it intended to rely on in a stay motion.

The plaintiff successfully opposed the motion and brought a cross-motion regarding redactions.

In this endorsement, the plaintiff sought substantial indemnity costs for the motion.

The court awarded the plaintiff partial indemnity costs, finding no improper conduct by the defendant to warrant a higher scale, but affirming the plaintiff's right to costs for successfully defending the open court principle and adding value to the hearing.

The accused, charged with second degree murder, conspiracy to commit arson, arson causing bodily harm, and arson with intent to defraud in relation to a fatal business fire, challenged the Crown’s attempt to introduce numerous out‑of‑court statements under the co‑conspirators’ exception to the hearsay rule.

The court reviewed the Carter three‑stage test governing admissibility and considered whether a pre‑trial voir dire was required to assess whether the statements were capable of falling within the exception and whether they satisfied the principled approach to hearsay, including necessity and reliability.

The judge held that a voir dire was appropriate where the defence raised credible concerns about whether statements were made in furtherance of a conspiracy or where the availability of declarants raised necessity issues.

Several statements were admitted as capable of meeting the Carter requirements, particularly where declarants were deceased or unavailable and the statements furthered either the alleged arson conspiracy or a post‑offence cover‑up.

Statements attributed to an available witness with significant credibility concerns were excluded because the necessity and reliability requirements of the principled approach were not met.

The Crown brought an application to admit evidence of three prior incidents of discreditable conduct by the accused at his trial for arson.

The Crown argued the evidence was admissible to rebut innocent association, counter third-party propensity, corroborate an unsavoury witness, show a pattern of behaviour, and complete the narrative.

The court applied the principled approach from Handy and found that the probative value of the evidence was limited, partly due to collusion between witnesses, and was outweighed by its prejudicial effect.

The application was dismissed.