Pamela L. Hebner

The plaintiff in a medical malpractice action sought an extension of time for discoveries.

The defendant Dr. Tayfour cross-moved for dismissal for delay or a stay until costs were paid.

The court dismissed the defendant's motions, finding that the plaintiff's delays were not inordinate or inexcusable, and there was no substantial risk of an unfair trial.

The court granted the plaintiff's motion, setting new timelines for discoveries and trial, and ordered the defendant to pay the plaintiff costs of the motion.

The appellant appealed her conviction for failing or refusing to provide a breath sample by means of an approved screening device.

The Superior Court of Justice found that the trial judge erred in concluding there was an outright refusal, given the appellant's retraction and subsequent attempts to comply.

Furthermore, the trial judge erred by shifting the burden of proof regarding mens rea and the proper functioning of the approved screening device.

The Crown failed to prove beyond a reasonable doubt that the device was in good working order, which was necessary to infer intentional failure.

The appeal was allowed, and the conviction was set aside, resulting in an acquittal.

During a criminal trial for importing cocaine and possession for the purpose of trafficking, a voir dire was held to determine the admissibility of evidence from a detector dog and an ion scan machine.

The accused, a commercial truck driver, was found with 30 kilograms of cocaine in his trailer at a border crossing.

The Crown sought to introduce evidence that a detector dog indicated the presence of a target odour on a suitcase in the truck's cab, and that an ion scan of the suitcase tested positive for cocaine residue.

The court applied the Mohan criteria and held that the detector dog evidence was admissible only for the limited purpose of narrative to explain why the ion scan was conducted, due to its prejudicial effect outweighing its probative value.

The court further held that the ion scan evidence was admissible but would be given very little weight due to the possibility of false positives and its inability to determine when or how the residue was deposited.

The accused, a commercial truck driver, was charged with importing cocaine after 30 kilograms of cocaine were found in his trailer at a secondary inspection site near the border.

At the close of the Crown's case, the accused brought a motion for a directed verdict, arguing that the offence of importation was not complete because he had not cleared customs with the contraband.

The court dismissed the motion, applying jurisprudence to find that the offence of importing is legally complete as soon as an accused crosses the border into Canada with contraband, even if it is not factually complete until customs is cleared.

At the commencement of their trial for a home invasion and assault, the accused brought an application to admit evidence of unknown third-party suspects.

The defence sought to cross-examine the complainant on three prior break-and-enter incidents and introduce Facebook photos of the complainant with firearms, arguing the attack was perpetrated by individuals in the drug subculture rather than the accused.

The court dismissed the application, finding an insufficient connection between the prior incidents and the current crime to meet the relevancy threshold required for third-party suspect evidence.

The offender was convicted of possession of fentanyl for the purpose of trafficking, along with possession of other controlled substances and stolen property.

The court weighed the offender's significant criminal record and the extreme danger of fentanyl against mitigating factors including guilty pleas to some offences, family support, and rehabilitative efforts in custody.

The court imposed a global sentence of 4 years' incarceration, less credit for pre-sentence custody, emphasizing denunciation and deterrence.

The Attorney General of Canada sought the extradition of the respondent to the USA for attempted break and enter.

The respondent was previously found unfit to stand trial due to tertiary syphilis causing dementia.

The court held an inquiry under s. 672.851(4) of the Criminal Code to determine whether a stay of proceedings should be ordered.

The court accepted the defence expert's opinion that the respondent was permanently unfit, did not pose a significant threat to public safety, and that a stay was in the interests of the proper administration of justice.

The extradition proceedings were stayed.

The plaintiffs brought a motion to strike the remaining defendant's statement of defence for failing to comply with a court-ordered timetable.

The defendant had ignored the timetable while pursuing an appeal of the order, without seeking a stay.

The court found the defendant's deliberate non-compliance unacceptable but declined to strike the defence, noting the plaintiffs' own six-year delay in moving the action forward.

The motion to strike was dismissed, and an amended timetable was ordered.

The plaintiff municipality brought a motion for summary judgment against the defendant engineering firm for 50% of the damages paid to homeowners due to a sewage backup.

The municipality alleged the defendant's design drawings for separating storm and sewage drains were unclear, leading to the removal of an overflow mechanism.

The court found a genuine issue requiring a trial because the key witness who implemented the design in the field did not provide an affidavit.

The court ordered a mini-trial under Rule 20.04(2.2) to hear oral evidence from this witness regarding the clarity of the drawings.

The accused brought a Charter application under s. 8 and s. 24(2) to exclude evidence seized during the execution of a search warrant at a trailer residence.

The court found the Information to Obtain (ITO) contained sufficient grounds based on informant tips to justify the search of the trailer.

However, the court ruled that the police lacked lawful authority to search a locked shed located behind the trailer, as it fell outside the curtilage of the residence described in the warrant.

Applying the Grant framework, the court concluded that admitting the evidence from the shed would bring the administration of justice into disrepute due to the seriousness of the police conduct in failing to obtain a separate warrant.

The evidence found in the shed was excluded.

The applicant brought a motion to change seeking to terminate or reduce his spousal support obligations to his former spouse.

The applicant argued that the respondent's re-partnering, receipt of a substantial inheritance, and his inability to deduct support payments on his US income tax return justified a reduction.

The court treated the motion as a review rather than a variation, requiring a fresh look at entitlement and quantum.

The court found the respondent was still entitled to compensatory and needs-based support following a 25-year traditional marriage.

Spousal support was reduced to $2,500 per month, and the annual review clause was removed.

The defendant employer brought a motion for summary judgment to dismiss the plaintiff's wrongful dismissal claim, arguing the termination clause in the employment contract was enforceable.

The plaintiff argued the clause violated the Employment Standards Act, failed to rebut the common law presumption of reasonable notice, and was breached by the employer.

The court found the termination clause was ambiguous regarding whether the exclusion of common law notice applied to the failsafe provision.

Resolving the ambiguity in favour of the employee, the court dismissed the motion and ordered the issues of reasonable notice and damages to proceed to trial.

The plaintiffs brought a motion to amend their statement of claim to add the manufacturer and dealership of the plaintiff's vehicle as defendants, alleging negligence for the lack of side impact airbags.

The proposed defendants argued the motion was brought after the expiry of the two-year limitation period.

The court granted the motion, finding that the plaintiff's severe brain injury raised a live issue regarding his capacity to commence a proceeding, which could toll the limitation period.

Furthermore, there was a live issue regarding when the plaintiffs could have reasonably discovered the proposed defendants' involvement and the lack of side airbags.

The plaintiffs brought a motion for partial summary judgment against the defendant bank for amounts paid on cheques forged by the plaintiffs' former bookkeeper.

The bank raised two defences: an alleged account verification agreement and the expiry of the limitation period.

The court found no genuine issue requiring a trial regarding the agreement defence, as the bank could not produce evidence that the relevant plaintiffs had signed such an agreement.

However, the court found a genuine issue requiring a trial regarding the limitation period defence, specifically on the issue of discoverability, and ordered a mini-trial to determine when a reasonable person ought to have discovered the forgeries.

The plaintiff mortgagors failed to maintain property insurance as required by their mortgage.

The defendant mortgagees obtained their own insurance policy to protect their interest, with the plaintiffs reimbursing the premiums.

After a fire destroyed the property, the insurer paid the mortgagees the policy limits and claimed a subrogated right to enforce the mortgage against the plaintiffs.

The plaintiffs brought a motion for summary judgment seeking a declaration that the insurer had no subrogated rights and an order discharging the mortgage to the extent of the insurance payout.

The court dismissed the motion, finding that the insurance policy was obtained solely for the benefit of the mortgagees and explicitly provided for subrogation rights against the mortgagors.

The applicant sought equalization of net family property, including the value of a Polish property held by the respondent's father in trust for the respondent, and lump-sum spousal support.

The court found the respondent to be the beneficial owner of the Polish property, including its value in his net family property for equalization purposes.

The court also awarded lump-sum and retroactive spousal support, finding the respondent intentionally depleted assets and moved to Poland to avoid his support obligations.

The accused brought a Charter application at the commencement of his trial seeking to exclude a firearm, ammunition, and cocaine seized by police during a street stop.

The court found that the police arbitrarily detained the accused without reasonable suspicion, violating his s. 9 Charter rights.

This unlawful detention also resulted in breaches of his s. 8 right against unreasonable search and s. 10(b) right to counsel.

However, applying the Grant framework under s. 24(2), the court concluded that the police acted in good faith and the evidence was highly reliable and essential to the prosecution.

The application to exclude the evidence was dismissed.

The plaintiff, a member of the Walpole Island First Nation, leased hunting grounds from the Band to operate a hunt club.

He made significant capital improvements to the property with the understanding that he would receive a credit against his rent.

The Band later evicted him right before the hunting season for alleged rent arrears, refusing to recognize the capital improvement credit.

The court found that the Band had agreed to the credit and that the Hunt Club Task Force had ostensible authority to bind the Band.

The court awarded the plaintiff $142,500 in net damages for the breach of agreement, plus $30,000 in aggravated damages for the humiliating and unfair manner of his eviction.

The respondent mother brought a motion to strike the applicant father's claims for financial relief due to his persistent failure to comply with multiple court orders regarding financial disclosure, child support, and costs.

The court applied the three-part test for striking pleadings under Rule 1(8) of the Family Law Rules and found the father's contumelious behaviour warranted striking his financial claims.

The court also adjusted the father's Christmas access schedule and ordered that the proceeds from the sale of the matrimonial home remain in trust pending final resolution.

The mother was awarded costs of $4,000.

The plaintiff brought a motion for summary judgment seeking the return of funds she invested in a property purchased with her sister and brother-in-law.

The plaintiff provided the entire purchase price and contributed to renovations, but the property was registered solely in the defendants' names.

The court found that the defendants were unjustly enriched and failed to rebut the presumption of resulting trust.

Summary judgment was granted, ordering the defendants to pay the plaintiff $221,914.11, representing her total investment in the property.