R. F. Goldstein

The appellant appealed his conviction for impaired driving, arguing that he should have a new trial due to the ineffective assistance of his trial counsel.

The appellant alleged that trial counsel failed to properly perfect a section 11(b) Charter application and failed to inform him of his right to testify on the Charter application.

The Superior Court of Justice found that while trial counsel's failure to file transcripts for the section 11(b) application fell below the standard of reasonable professional assistance, it did not result in a miscarriage of justice as the trial judge ultimately allowed the application to proceed.

The court also found that the appellant failed to establish that he was not informed of his right to testify, and even if he had been, it would not have changed the outcome given the overwhelming evidence of guilt.

The appeal was dismissed.

The Crown brought an ex parte application on behalf of 721 respondents to vary the time to pay the victim fine surcharge (VFS) by 99 years.

The VFS had previously been struck down as unconstitutional by the Supreme Court of Canada in R. v. Boudreault, leaving thousands of offenders subject to an unconstitutional penalty.

The Superior Court of Justice found it had jurisdiction under section 734.3 of the Criminal Code to grant the extension and that it was in the interests of justice to do so, effectively ensuring no enforcement measures would be taken against these offenders in their lifetimes.

The court issued a supplementary costs endorsement to clarify a previous costs award of $7,500 to the third parties following the dismissal of the defendant's motion to validate service.

The court clarified that the third parties had only sought costs for the motion before this judge, and not for a prior 2014 motion before a different judge.

The original costs award of $7,500 was maintained as fair and reasonable.

The appellant was found asleep in the driver's seat of her vehicle and subsequently blew over the legal limit.

At trial, she was convicted of having care and control of a motor vehicle while impaired, failing to rebut the presumption under s. 258(1)(a) of the Criminal Code.

On appeal, she argued the trial judge misapprehended the evidence and improperly assessed her credibility against a reasonable person standard.

The Superior Court dismissed the appeal, finding the trial judge's credibility assessments were entitled to deference and no material error was made.

The Crown appealed a conditional discharge and refusal to make a DNA order imposed on the respondent for breaching a no-contact bail condition.

The respondent had met his wife for coffee while on bail for domestic assault charges.

The summary conviction appeal judge found no error in principle in the trial judge's reasoning and held that the sentence was not demonstrably unfit.

The refusal to order a DNA sample was also upheld, as a sample had already been ordered for the underlying assault conviction.

The appeal was dismissed.

The appellant was convicted of driving with a blood alcohol level over 80 after failing a roadside screening test and providing breath samples of 125mg and 100mg.

On appeal, he argued the trial judge erred in assessing whether the police officer had an objective basis for the demand given the potential presence of mouth alcohol, and that the trial judge provided inadequate reasons regarding care and control.

The Superior Court of Justice dismissed the appeal, finding the trial judge properly applied the objective standard, made credibility findings entitled to deference, and that the path to conviction was clear because the Crown relied on the appellant's admission of driving prior to being found in the driveway.

The plaintiff, a 72-year-old security guard, was terminated after 12 years of service.

The employer provided a letter stating employment would end in a few months but gave no firm date, and the plaintiff continued working for seven months before being abruptly fired without statutory entitlements.

The plaintiff mitigated his damages by finding new employment and brought a motion for summary judgment.

The court found the initial notice was insufficient as it lacked a firm date and the employment continued beyond the 13-week regulatory period.

The court awarded damages for breach of contract and additional damages for mental distress due to the employer's unfair conduct.

The applicant, facing serious charges including membership in a criminal organization and fraud, applied for a Rowbotham order for state-funded counsel after being denied Legal Aid.

While the court accepted that the case was complex and the applicant had been denied Legal Aid, the application was dismissed because the applicant failed to prove indigence.

The applicant provided insufficient financial documentation and failed to account for the proceeds from the sale of a home.

The applicant insurer sought leave to appeal an arbitrator's preliminary ruling in a priority dispute.

The arbitrator had found that an ATV incident on private property constituted an 'accident' under the Statutory Accident Benefits Schedule, making the applicant responsible for paying benefits.

The court granted leave to appeal, finding that the interpretation of 'accident' and 'automobile' under the legislation raised a question of law, and that the determination of this question would significantly affect the rights of the parties and resolve the mediation.

Following the dismissal of an application for leave to appeal from a decision of a professional regulator, the court determined the issue of costs.

The applicant had previously been declared a vexatious litigant and filed submissions that did not address the costs issue and failed to comply with the court’s directions.

Applying the principle that costs should be fair and reasonable in the circumstances, the court found the regulator’s request for $3,500 to be reasonable and significantly less than the actual costs incurred.

The court awarded the requested amount of costs to the regulator.

Following dismissal of the plaintiff’s action and the unsuccessful appeal, the self-represented defendant sought costs totaling $12,093.30.

The court considered the governing principles for awarding costs to self-represented litigants, including the requirement that the litigant demonstrate time spent performing work ordinarily done by a lawyer and that the time represented an opportunity cost in lost income.

Applying the principles from Fong v. Chan and Mustang Investigations v. Ironside, the court allowed compensation for certain legal preparation activities but excluded time for travel and general attendance.

The court emphasized that costs principles apply equally to self-represented parties and that successful litigants may receive indemnification where opportunity cost is proven.

A reduced amount representing lost income and disbursements was awarded.

Following an unsuccessful motion for summary judgment in an employment-related constructive dismissal action, the court addressed costs.

The plaintiff, a self‑represented security guard, acknowledged responsibility for costs but submitted he could only pay approximately $2,000.

The defendants sought $4,361.40 in partial indemnity costs.

Applying the principle that costs must be fair and reasonable in the circumstances, the court held that the amount claimed was within the legitimate expectations of the parties and reasonable for the motion.

The court ordered the plaintiff to pay $4,000 in costs jointly to the defendants.

Following a civil contempt conviction and the imposition of a conditional sentence of imprisonment with probation, the court addressed allegations that the contemnor had breached the conditional sentence order.

The court considered the appropriate procedure for dealing with alleged breaches of conditional sentences imposed for civil contempt.

It held that a breach constitutes a fresh contempt that may be pursued through a motion supported by evidence under Rule 60.11 of the Rules of Civil Procedure.

While the Criminal Code conditional sentence breach framework may provide guidance for available remedies, the court held that the breach must still be proven beyond a reasonable doubt in civil contempt proceedings.

The court outlined procedural options, including a fresh contempt motion or investigation by the conditional sentence supervisor.

Following a summary judgment dismissing the plaintiffs’ action alleging forgery and fraud in relation to a vehicle lease, the court determined the issue of costs.

The defendants sought substantial indemnity costs on the basis that the plaintiffs had advanced serious but unsubstantiated allegations of fraud.

The court held that such allegations justified an award of substantial indemnity costs.

While accepting that the defence costs outlines reflected some minor over-lawyering and partial duplication of effort, the court concluded that the defendants were nonetheless entitled to significant costs.

The amounts claimed were modestly reduced and substantial indemnity costs were awarded.

An interpleader motion sought a declaration that a property transferred into the son’s name was held in trust for the mother and therefore not exigible by the son’s judgment creditors.

The responding bank argued the declaration of trust lacked evidentiary support and questioned its authenticity.

The court found the record contained deficiencies but also some evidence suggesting a possible trust, raising credibility issues unsuitable for determination on the motion record.

As a result, the motion for declaratory relief was dismissed and a trial of an issue was directed to determine beneficial ownership and the priority of competing writs of execution.

The plaintiff brought a motion to enforce a settlement agreement arising from a dispute over a boat that the defendant had taken possession of after the parties’ relationship ended.

Through email exchanges, the defendant accepted the plaintiff’s offer to settle the action for $20,000 inclusive of costs and later requested an extension of time to pay.

The defendant later argued that no binding agreement existed because no settlement agreement or release had been signed.

The court held that the email correspondence clearly demonstrated agreement on all essential terms and that a signed document was not required for a binding settlement.

Finding no genuine issue regarding the parties’ intention to be bound and no policy reason to refuse enforcement, the court enforced the settlement.

The appellant appealed convictions for attempting to disarm a police officer, assaulting a police officer, assaulting a police officer to prevent arrest, and two counts of breach of probation.

The appellant argued that the trial judge improperly treated the case as a credibility contest contrary to the principles in R. v. W.D., and that the judge shifted the burden of proof by drawing adverse inferences from the absence of defence evidence.

The appeal court held that the trial judge properly assessed credibility, rejected the appellant’s testimony with reasons, and then considered whether the remaining evidence left a reasonable doubt.

The judge’s comments regarding the absence of corroborating evidence merely observed the evidentiary record and did not shift the burden of proof.

The convictions were upheld.

The appellant appealed summary conviction findings of guilt for assault with a weapon and breach of probation, alleging ineffective assistance of trial counsel.

The appellant argued that counsel failed to properly advise him about the decision not to testify and inadequately cross‑examined Crown witnesses.

Fresh evidence was admitted including affidavits from the appellant and trial counsel, 911 recordings, and the appellant’s criminal record.

The court applied the three‑part test for ineffective assistance of counsel and found the appellant failed to establish incompetence or resulting miscarriage of justice.

Trial counsel’s tactical decisions regarding testimony and cross‑examination were within the range of reasonable professional judgment, and there was no reasonable probability the verdict would have differed.

The Crown appealed a summary conviction acquittal on charges of possession of marijuana, assaulting a police officer, and failing to comply with bail.

The trial judge had concluded that the accused’s Charter rights were violated, apparently based on racial profiling, unlawful arrest, and excessive force, and excluded the marijuana evidence.

The appeal judge held that the trial reasons were inadequate and failed to explain the path to the conclusions, preventing meaningful appellate review.

The decision also contained legal errors, including conflation of Charter concepts relating to detention, arrest, and search, and failure to resolve critical credibility issues regarding the police officer’s evidence.

The acquittals were set aside and a new trial ordered.

The Crown applied under s. 752.1 of the Criminal Code for an order directing an assessment to determine whether the offender should be designated a dangerous offender or long‑term offender following a guilty plea to assault causing bodily harm.

The offender previously pleaded guilty to manslaughter arising from an earlier violent assault and committed the new offence while on parole and under the influence of drugs and alcohol.

The court considered the low threshold applicable to ordering an assessment and whether there were reasonable grounds to believe the offender might meet the criteria under s. 753 or s. 753.1.

Finding evidence of a pattern of unprovoked violent behaviour associated with substance abuse and a failure to restrain conduct, the court concluded the statutory threshold was met.

An assessment order was therefore granted.