Philip Brent Cornish

The court considered whether a person intending to make a claim against an estate for unjust enrichment, based on services rendered to the deceased, has standing to file a Notice of Objection to the granting of a Certificate of Appointment of Estate Trustee under Rule 75.03 of the Rules of Civil Procedure and to seek removal of the Estate Trustee named in the will.

The court held that such a potential creditor does not have standing to file a Notice of Objection, as the category of persons with standing is limited to those whose claims turn on the outcome of a challenge to the will or the issuance of a certificate of appointment.

The Notice of Objection was ordered removed.

The plaintiffs sought to introduce participant expert evidence from a lawyer, David Murray, regarding the standard of care applicable to the defendant lawyer in a solicitor's negligence claim.

The court, applying the Westerhof and Mohan/White Burgess criteria, ruled that while Mr. Murray was qualified, his proposed opinion on the objective standard of care was not formed as part of his ordinary participation in the events at issue and thus did not qualify as participant expert evidence under Rule 53.03.

The court declined to permit the opinion evidence.

Appeal from a conviction under section 2(1) of the Compulsory Automobile Insurance Act for permitting a motor vehicle to be operated on a highway without insurance.

The appellant owned a vehicle that was driven by another individual on a test drive basis.

The Crown proved ownership through Ministry of Transportation records and established that no insurance was in place.

The appellant raised grounds of appeal regarding hearsay evidence, denial of a non-suit motion, and application of the strict liability test.

The appellate court upheld the conviction, finding the trial justice properly applied the law and made no material errors of fact.

The sentence was also upheld.

The accused, an 84-year-old man, was charged with sexual assault under section 271 of the Criminal Code for allegedly touching the complainant, a 20-year-old woman, in a sexual manner without her consent on July 23, 2014.

The Crown alleged that during a visit to the complainant's home, the accused groped the complainant's breast and buttocks while hugging her in the garage.

The accused denied the allegations, claiming the interaction was an ordinary hug with a brief peck on the cheek.

The trial judge found the complainant's evidence credible and compelling, while finding the accused's testimony contradictory, inconsistent, and demonstrating a lack of understanding of appropriate boundaries.

The court convicted the accused of sexual assault.

The defendant brought a motion for summary judgment seeking dismissal of a negligence action arising from the death of a resident at a group home.

The plaintiff commenced the claim more than two years after the death and argued that the limitation period under s. 38(3) of the Trustee Act was tolled due to incapacity and fraudulent concealment.

The court held that the plaintiff produced no medical evidence establishing incapacity under s. 7 of the Limitations Act, 2002 and that the doctrine of fraudulent concealment did not apply because there was no evidence the defendant concealed material facts about the death.

As the underlying claim was statute‑barred, the derivative claim under s. 61 of the Family Law Act was also barred.

The accused brought a Rowbotham application seeking an order requiring the state to fund legal representation for sentencing and related applications after his Legal Aid certificate was cancelled following conviction by a jury.

The court applied the three-part test requiring proof that legal aid was refused, that representation was essential to a fair proceeding, and that the accused lacked the means to retain counsel.

Although the court accepted that the certificate cancellation constituted a refusal of legal aid, it found the accused remained represented by counsel of record and therefore failed to establish that funded counsel was essential to ensure a fair sentencing.

The court further held the accused did not demonstrate on a balance of probabilities that he lacked the means to retain counsel, noting the absence of efforts to appeal the certificate cancellation or retain private counsel.

The Rowbotham application was dismissed.

During a jury trial arising from a shooting into an occupied dwelling, the accused applied to quash two counts on the indictment on the basis of issue estoppel or res judicata following a discharge at a preliminary inquiry on a conspiracy to murder charge.

The accused also sought directed verdicts of acquittal on multiple counts at the close of the Crown’s case.

The court held that the earlier discharge did not determine issues necessary to the remaining counts and therefore did not bar the prosecution.

Applying the test for directed verdicts, the court found that the Crown had adduced some evidence on each essential element of the offences, including evidence supporting liability as a party under s. 21 of the Criminal Code.

The applications were dismissed and the case was left for determination by the jury.

During a jury trial on firearms-related offences and aggravated assault arising from a shooting incident, the court conducted a voir dire regarding the admissibility of three police statements made by the accused following arrest.

The defence argued the statements were involuntary due to intoxication, fatigue, oppressive interrogation, inducements, and breaches relating to the provision of rights.

Applying the voluntariness doctrine and the principles articulated in leading Supreme Court authority, the court assessed whether the accused had an operating mind and whether police conduct overbore the accused’s will.

The court found the accused understood he was speaking to police and that his statements could be used against him, and rejected allegations of inducement, oppression, or lack of an operating mind.

The Crown proved voluntariness beyond a reasonable doubt and the statements were admitted at trial.