Michael R. Gibson

G.S. was found guilty by a jury of five sexual offences against D.A., committed between 1998 and 2001 when D.A. was 13-16 years old.

The offences involved sexual intercourse and a breach of trust, as G.S. was D.A.'s workplace supervisor and family friend.

The court, applying the principles from R. v. Friesen, emphasized denunciation and deterrence, noting the inherent wrongfulness and profound harm of sexual offences against children.

Despite G.S. having no prior criminal record and no remorse, the court imposed a significant penitentiary sentence of 5.5 years for two counts of sexual assault, to be served concurrently, and conditionally stayed other convictions.

Ancillary orders included DNA sample, SOIRA registration for life, lifetime prohibitions on attending places frequented by children, and contact prohibitions.

During a jury trial for aggravated assault and discharging a firearm, the defence applied for a mistrial after the Crown disclosed two screenshots mid-trial.

The defence had already aggressively cross-examined key Crown witnesses, suggesting they were lying about the existence of these screenshots because they had not been disclosed.

The court found that the late disclosure significantly prejudiced the accused's right to make full answer and defence, as the defence's tactical approach was based on the non-disclosure.

Concluding that no lesser remedy such as an adjournment or jury instruction would suffice, the court granted the mistrial.

The plaintiffs brought a motion to remove the defendant's lawyer of record, alleging a conflict of interest based on the lawyer's prior involvement in related litigation.

The court found that the lawyer had never met or received confidential information from the moving plaintiff, and that the motion was brought for tactical reasons.

Applying the bright line rule from McKercher, the court concluded there was no conflict of interest and dismissed the motion.

The respondent wife brought a motion to set aside a marriage contract signed the day before the parties' wedding, arguing it was signed under duress, without independent legal advice, and with inadequate financial disclosure.

The court applied the two-step test under s. 56(4) of the Family Law Act and found that the wife failed to establish any of the statutory grounds.

The court held that the wife had sufficient knowledge of the husband's assets, was not under duress, and chose not to obtain independent legal advice despite being urged to do so.

The motion to set aside the marriage contract was dismissed.

The plaintiff employee brought a motion under Rule 21.01(1)(a) seeking a pre-trial determination that the termination provision in her employment agreement was unenforceable.

The defendant employer opposed the motion, arguing it was an inappropriate use of the rule.

The court dismissed the motion, finding that the interpretation of the termination provision was a question of mixed fact and law, not a pure question of law.

Furthermore, the court held that deciding the issue would not dispose of the action, substantially shorten the trial, or save costs, especially since the primary issue was whether the employer had just cause for termination.

The applicant, an inmate at Grand Valley Institution for Women, applied for a writ of habeas corpus challenging the validity of her warrant of committal.

The respondent moved to dismiss the application as frivolous, vexatious, and an abuse of process.

The court found that the applicant was attempting to relitigate issues already decided against her by the Superior Court and the Court of Appeal.

The court dismissed the application summarily under the Criminal Proceedings Rules and declined to award costs, noting there is no jurisdiction to award costs in criminal habeas corpus matters.

Following the plaintiff's successful motion and the dismissal of the defendants' motion, the court determined the costs payable to the plaintiff.

The plaintiff sought costs on a full indemnity basis due to the egregious and delaying conduct of the defendant.

The court found that the defendant's conduct unnecessarily lengthened the proceeding and awarded costs of $11,900, payable personally by the defendant.

The applicant, charged with fraudulent personation, brought a pre-trial application seeking to exclude evidence seized from his residence pursuant to a search warrant, alleging a breach of his s. 8 Charter rights.

The applicant argued the Information to Obtain (ITO) was facially invalid because it failed to sufficiently connect him to the IP address used in the offences or establish that a search of his new residence would afford evidence.

The Superior Court of Justice dismissed the application, finding the ITO contained a sufficient circumstantial basis linking the applicant to the IP address and establishing reasonable grounds to believe electronic devices would be found at his residence.

The warrant was validly issued, and no Charter breach occurred.

The plaintiff brought a motion to fix costs from previous motions after the trial judge retired, to vary a previous judgment to make funds payable directly to her, and to recover collection costs and costs thrown away.

The defendant brought a cross-motion to terminate a garnishment, arguing the previous judgment was fully satisfied.

The court found the previous judgment was not fully satisfied and dismissed the defendant's motion.

The court granted the plaintiff's motion, finding that no limitation period applies to enforcing court orders for costs, and that Rule 59.06 and the court's inherent jurisdiction allowed it to fix the costs of the previous motions.

The defendant was ordered to pay $117,067.49.

The moving party defendant sought to set aside default foreclosure judgments obtained by the plaintiffs in 2014 regarding three properties.

The defendant argued he had an oral agreement with the plaintiffs not to proceed with the actions.

The court dismissed the motion, finding the defendant's evidence of an oral agreement lacked credibility, the motion was not brought with reasonable promptness, and the defendant lacked a plausible excuse for the delay or an arguable defence on the merits.

The moving defendant brought a motion to enforce a settlement agreement reached with the responding defendant and to dismiss the action and crossclaims against her.

The underlying action arose from a multi-vehicle collision where the moving defendant's vehicle was struck after the initial impact between the other defendants' vehicles.

The responding defendant had previously agreed to dismiss her crossclaim against the moving defendant without costs but later attempted to withdraw her consent.

The court found that a clear and unequivocal settlement agreement had been reached and that the responding defendant failed to show any valid reason to resile from it.

The motion was granted, the settlement was enforced, and the action against the moving defendant was dismissed.

The moving party father brought a motion for unsupervised parenting time with the parties' two children.

The responding party mother opposed, citing a history of physical and emotional abuse, and requested that any parenting time be supervised.

Applying the recently amended Divorce Act, the court found that a cooperative parenting regime was not appropriate due to the high conflict and allegations of family violence.

The court granted the motion in part, ordering that the father have supervised parenting time, with supervision to be provided by his parents.

The applicant beneficiary brought an application under Rule 74.15 seeking extensive disclosure of the deceased's bank and medical records, and an examination under oath of the respondent executor.

The respondent, acting as executor de son tort, had provided informal accountings but resisted the broad demands, noting that the disputed assets (a cottage and TFSA) passed outside the estate prior to death.

The court dismissed the application, finding the demands excessive and unsupported by evidence of incapacity or undue influence.

The court permitted the respondent to proceed to a formal Passing of Accounts without requiring a Certificate of Appointment.

The defendant grandmother, who was the primary caregiver for her severely autistic grandson, moved to strike a negligence claim against her.

The plaintiffs alleged she was negligent in altering her grandson's medication dosage and failing to inform his school before a trip to a public pool, where the grandson injured the plaintiff.

The court applied the Anns/Cooper test and found it was reasonably foreseeable that failing to properly medicate the grandson and inform the school could result in harm to members of the public.

The court dismissed the motion to strike, finding a prima facie duty of care and genuine issues for trial.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for coverage of water damage to her property.

The insurer argued that the policy's vacancy exclusion applied because the plaintiff, who had moved to a retirement home due to cognitive impairment, had no intention of returning.

The court found that the plaintiff lacked the capacity to form an intention to return and that there was no objective plan for her to do so.

The court concluded there was no genuine issue for trial regarding the vacancy exclusion and granted the summary judgment motion, dismissing the action.

The applicant condominium corporation sought declarations, injunctions, and compliance orders requiring the respondent unit owners to wear masks in the common elements, alleging their refusal constituted a dangerous activity under s. 117 of the Condominium Act.

The respondents claimed medical exemptions under provincial regulations and municipal by-laws, which did not require proof of exemption.

The court balanced the competing rights, finding that while the respondents could transit through common elements for ingress and egress without a mask due to their claimed exemptions, wandering or exercising on other floors without a mask constituted a dangerous activity.

The court issued a compliance order and permanent injunction restricting the respondents' unmasked movement to direct ingress and egress.

This endorsement addresses the costs arising from an application where the Applicant successfully set aside a default judgment in a foreclosure action, and a subsequent unsuccessful motion by one of the Respondents to vary that order based on new evidence.

The Applicant sought full indemnity costs against one respondent and its director, and partial indemnity from another.

The court assessed the costs based on factors under the Rules of Civil Procedure and the Courts of Justice Act, declining to pierce the corporate veil to award costs against a non-party director.

The court awarded the Applicant $50,000 in costs for the original application, apportioned between two respondents, and an additional $7,500 for the motion to vary, payable by one respondent.

Sentencing decision following guilty pleas to sexual interference and making sexually explicit material available to a child, arising from repeated sexual abuse by a stepfather of a child between ages 10 and 13 over a period of years.

After a Gardiner hearing, the court found additional aggravating facts proven beyond a reasonable doubt, including anal penetration on two occasions and grooming statements normalizing sexual attraction between stepdaughter and stepfather.

Applying the guidance in Friesen and the statutory sentencing principles in the Criminal Code, the court emphasized denunciation and deterrence, particularly given the abuse of trust, repeated abuse, the victim's age, and the significant harm caused.

A penitentiary sentence of six years was imposed on the sexual interference count, with three years concurrent on the child pornography-facilitation count, together with DNA, SOIRA, prohibition, no-contact, and weapons orders.

The applicant sought to set aside a default judgment for foreclosure obtained by a private mortgage lender after she missed a single $650 payment.

The property, valued at $575,000, was sold to a third-party corporation for $425,000.

The court found that the equities favoured the applicant, noting the disproportionate consequences of her default and that the purchaser was not a bona fide purchaser for value without notice.

The court also found the default judgment was irregularly obtained because the assignee of the mortgage failed to give the applicant written notice of the assignment before foreclosing.

The application was granted, the default judgment set aside, and the property ordered to be sold at fair market value.

The plaintiff, a shareholder of a corporation that previously lost a mortgage enforcement action, brought a new action against the mortgagee and the mortgagee's lawyers alleging fraud, negligence, and breach of contract.

The defendants moved to strike the claim.

The court granted the motions, finding that the statement of claim disclosed no reasonable cause of action, as the plaintiff had no privity of contract, the lawyers owed no duty of care to a litigation adversary, and the claims were barred by the rule in Foss v. Harbottle.

The court also found the action to be an abuse of process and frivolous and vexatious, as it attempted to re-litigate issues already decided in the prior mortgage action.