Richard Auger

The defendant applied for a stay of proceedings, alleging a violation of their right to be tried within a reasonable time under section 11(b) of the Charter.

The total delay from charge to anticipated end of trial was 26 months and 8 days (800 days).

The court analyzed periods of delay, attributing 161 days to defence delay due to failure to promptly set a trial date and incorrect availability advice.

An additional 193 days of delay were equally apportioned between the defence and the court due to defence counsel's unavailability and the court's inability to offer earlier dates.

After deductions, the net delay was 446 days (approximately 14.6 months), which is well below the Jordan ceiling.

The application for a stay was dismissed as the defence could not demonstrate a sustained effort to expedite proceedings, nor did the case take markedly longer than it should have.

This decision addresses the costs arising from a successful summary judgment motion brought by the defendants Nisco Inc. and HVL Ltd. against the plaintiffs.

Nisco had provided financing for a tow truck to Mark Pittuck, who was later seriously injured due to equipment failure.

Nisco's motion for summary judgment was granted, dismissing the plaintiffs' action against it.

Nisco sought costs on a full indemnity basis, citing an indemnity clause in the lease agreement and an offer to settle.

The plaintiffs argued for lower costs, emphasizing their impecuniosity and the absence of reprehensible conduct.

The court, applying Rule 57 of the Rules of Civil Procedure, awarded Nisco $15,000 for the summary motion, $5,000 for costs in the actions, and $5,000 for disbursements against the main plaintiffs, and $4,000 against Sandy Tennant, considering the complexity, importance, and reasonable expectations of the losing party, as well as the plaintiffs' impecuniosity.

Nisco National Leasing, a division of HVL Ltd. ("Nisco"), brought a motion for summary judgment to dismiss claims against it by Mark Pittuck and other plaintiffs.

Pittuck was injured while operating a leased tow truck, alleging Nisco's negligence for failing to remove a dangerous "side puller" or provide maintenance instructions.

The court found that the commercial lease agreement explicitly placed responsibility for inspection, acceptance, and maintenance of the tow truck solely on Pittuck, and Nisco was not a dealer or manufacturer.

The court determined that the Sale of Goods Act did not apply to the commercial lease, and the contractual terms limited Nisco's duty of care, taking precedence over any potential tort claim.

Nisco's motion for summary judgment was granted, dismissing the claims.

The applicant was injured in a rear-end motor vehicle accident and sought statutory accident benefits, including income replacement benefits (IRBs) and medical benefits.

The arbitrator found the applicant was entitled to pre-104 week IRBs because the insurer's own occupational therapy expert concluded she could not perform the essential tasks of her pre-accident employment.

However, post-104 week IRBs were denied as the applicant failed to prove a complete inability to engage in any suitable employment, given her ability to manage a household and work part-time as a house cleaner.

A claim for massage therapy was denied as not reasonable or necessary.

The arbitrator awarded a $1,000 special award against the insurer for unreasonably terminating the pre-104 week IRBs despite clear evidence of the applicant's inability to perform her pre-accident job.

The plaintiff's motion for leave to appeal was previously dismissed with costs.

The defendant sought partial indemnity costs of $4,424.70 plus disbursements and HST.

The plaintiff argued each party should bear their own costs or, alternatively, costs should be fixed between $3,500 and $4,500.

Applying the principles from Boucher, the court fixed the defendant's costs at $4,915.23 inclusive of disbursements and HST, payable by the plaintiff in any event of the cause.

The plaintiff sought leave to appeal an order that denied her leave to amend her statement of claim and disclosure of Technical Standards and Safety Authority (TSSA) investigation files.

The proposed amendments included additional negligence particulars, references to post-incident charges and convictions, and allegations of patterns of behaviour.

The motion judge had found these amendments irrelevant to proving prior negligence and emphasized that punitive damages must be expressly pleaded.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's order and no conflicting decisions on matters of principle.

The defendant was successful on its appeal from a Master's decision regarding the plaintiff's motion for leave to amend her pleading and for documentary discovery.

The defendant sought costs of $25,000 on a partial indemnity basis, payable forthwith.

The court fixed the defendant's costs for both the motion and the appeal at $20,000 on a partial indemnity basis.

Balancing the importance of the appeal's success with the plaintiff's litigation strategy, the court deviated from the general rule that costs are payable within 30 days, ordering instead that the costs be paid within 60 days of the decision at trial.

The defendant appealed a Master's order granting the plaintiff leave to amend her statement of claim and ordering the disclosure of a TSSA investigation file.

The plaintiff's action arose from an injury at the defendant's waterpark.

The proposed amendments included allegations regarding post-incident occurrences and a regulatory proceeding.

The Superior Court allowed the appeal, finding that the Master made a palpable and overriding error.

The post-incident similar fact allegations were neither material nor relevant to the plaintiff's claim in negligence, and there was no basis to order production of the TSSA file relating solely to post-incident events.

Michael Beaton, a chiropractor, was tried without a jury on 10 counts of indecent assault, assault with intent to commit indecent assault, and assault (later amended to sexual assault) involving five male complainants.

The court considered expert testimony on chiropractic practice standards and the admissibility of similar fact evidence.

The judge dismissed the Crown's motion to consider "across the counts similar fact evidence," opting for individual consideration of each count.

Beaton was found not guilty on counts 1 and 2 (JM), guilty on count 3 (RD), guilty on count 5 (AV), not guilty on counts 7-9 (GO), and guilty on amended count 10 (JP).

The plaintiff brought a motion to amend her Statement of Claim and for disclosure of the Technical Standards and Safety Authority (TSSA) investigation file concerning the defendant's waterpark.

The defendant opposed, arguing the amendments were irrelevant, would broaden the litigation, and cause prejudice.

The court granted the plaintiff leave to amend her Statement of Claim and ordered the TSSA to deliver its investigation file, finding that any potential prejudice to the defendant could be compensated by costs or an adjournment, consistent with Rule 26.01 of the Rules of Civil Procedure.

The accused brought a section 11(b) Charter application alleging that his right to be tried without unreasonable delay was violated.

The charge of impaired driving contrary to section 253(1)(b) of the Criminal Code was laid on September 8, 2011.

The prosecution involved two trials and an appeal, spanning over four years.

The court conducted a detailed analysis of the delay attributable to the Crown versus delay caused by the defence and inherent in the case.

The court found that while the total delay was substantial at 15.75 months of Crown-caused and institutional delay, it fell within the acceptable range for a retrial (14-18 months).

The court also found that the defence had not acted with sufficient diligence, including late disclosure of trial complexity, last-minute tactical changes, and a late section 11(b) application.

The court found no meaningful prejudice to the accused and dismissed the application.

The applicant sought prerogative relief by way of certiorari and prohibition to quash a trial judge’s ruling refusing disclosure of Intoxilyzer maintenance and operational records in an impaired driving prosecution.

The applicant argued the materials constituted first‑party disclosure under Stinchcombe or, alternatively, that the trial judge erred in finding them third‑party records lacking likely relevance.

The court held that certiorari should rarely intervene during ongoing criminal proceedings where an adequate appellate remedy exists and that only a palpable infringement of a constitutional right would justify such relief.

The court found the trial judge was entitled to conclude the records were third‑party materials and not likely relevant to the accuracy or operability of the breath testing instrument.

No jurisdictional error or breach of the right to full answer and defence was established.

The accused was charged with operating a motor vehicle with more than the legal limit of alcohol in his blood.

The Crown presented evidence of breath test results showing a blood alcohol content of 100 milligrams per 100 millilitres of blood.

The accused challenged the admissibility of the evidence on multiple grounds, including Charter violations relating to the loss or failure to preserve relevant evidence.

Specifically, the accused sought disclosure of Cobra data, simulator certification documents, and calibration and maintenance records relating to the Intoxilyzer 8000C machine used to obtain his breath samples.

The court found that certain information had been lost and that this constituted a non-disclosure breach of the accused's Charter rights.

However, the court determined that no remedy was warranted because the accused suffered no material prejudice, as the Crown presented compelling evidence that the test results were reliable regardless of the lost evidence.

The breath analysis evidence was admitted at trial.

The defendant's motion for leave to appeal an order permitting the plaintiff to use the pseudonym Jane Doe was dismissed.

The court subsequently received written submissions on costs.

The plaintiff sought $10,998 plus disbursements on a partial indemnity scale, while the defendant argued costs should be fixed at no more than $2,500.

The court adjusted the hourly rates claimed by the plaintiff's counsel, noting that maximum rates were not appropriate for this type of case.

The court fixed the plaintiff's partial indemnity costs at $6,000 plus disbursements and GST.