Robert J. Smith

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 moving parties brought a motion to extend the time to oppose the confirmation of an assessment officer's report and to set it aside.

They had failed to attend the assessment hearing, claiming they misunderstood the purpose of a prior adjournment.

The court found their excuse weak but noted they acted promptly upon learning of the assessment.

Because there was a genuine issue regarding whether the moving parties had actually retained the respondent law firm prior to signing a written retainer, the court set aside the unopposed certificate of assessment and remitted the matter back to the Assessment Officer.

The moving parties were ordered to pay $5,000 in costs due to their default.

The plaintiffs, Sustainable Development Technology Canada (SDTC), Leah Lawrence, and Jane Pagel, brought a motion for summary judgment against Kim Sigurdson for defamation and sought a permanent injunction.

Sigurdson had made numerous public statements accusing the plaintiffs of illegal acts, unethical conduct, racism, and fraud, primarily in an attempt to force settlement of his consulting fee claims.

The defendant failed to provide evidence to support his allegations, relying on the defense of justification.

The court found the statements defamatory, rejected the defenses of justification, fair comment, and qualified privilege due to lack of evidence and malice.

Damages were awarded to the plaintiffs, and a permanent injunction was issued to prevent further defamatory publications.

The plaintiff, Shaver-Kudell Manufacturing Inc., sought costs on a substantial indemnity basis for an abandoned summary judgment motion and partial indemnity costs for a 13-day trial, following its complete success on liability where it was found that the defendants misappropriated its trade secret and confidential customer information.

The defendants argued for deferral of costs, challenged the scale of costs for the summary judgment motion, and disputed the quantum of costs and disbursements.

The court determined that costs should not be deferred, found the plaintiff's Rule 49 offer to settle the summary judgment motion valid, and awarded partial indemnity costs for the summary motion to the date of the offer and substantial indemnity thereafter.

The court also fixed the trial costs, making adjustments for certain claimed amounts and expert fees, ultimately ordering the defendants to pay specific amounts for both the summary motion and the trial.

The plaintiff, Shaver-Kudell Manufacturing Inc. (SK), sued the defendants, Knight Manufacturing Inc. (KM), Lucy Shaver (a former long-term employee of SK), Dusko Ballmer (Lucy's common-law spouse and KM's consultant), and Alexander Knecht (KM's founder), for misappropriation of trade secrets related to its metal sleeve manufacturing process and tooling, and for breach of confidence regarding its customer list.

The court found that SK's manufacturing process and tooling were trade secrets, and that the defendants breached confidence and misappropriated these secrets.

Additionally, the court found that Lucy Shaver breached her duty of confidence and good faith by using her memorized knowledge of SK's customer list to solicit clients for KM shortly after leaving SK's employment.

The offender was convicted of taking two individuals hostage in Somalia for 15 months.

He acted as the translator and negotiator for the hostage-takers, demanding a ransom and threatening to kill the hostages.

The hostages were held in deplorable conditions and one was repeatedly physically and sexually assaulted.

The court emphasized denunciation and deterrence, sentencing the offender to 15 years in prison, less credit for pre-sentence custody on a 2:1 basis.

During a criminal trial, the Crown brought a motion to reconsider a previous Corbett ruling that had excised four of the accused's prior convictions for sexual assault.

The accused had testified extensively that he always pleaded guilty when he had done something wrong, creating a misleading picture for the jury, as he had pleaded not guilty and been convicted after trial for three of the excised sexual assault charges.

The court agreed with the Crown, reversing the Corbett ruling to allow the three convictions to be presented to the jury to correct the distorted view of the accused's credibility, with a clear instruction against propensity reasoning.

The accused brought an application seeking a stay of proceedings under s. 11(b) of the Charter, arguing that the delay of 56 months from the date charges were laid exceeded the 30-month presumptive ceiling established in Jordan.

The court deducted 559 days of appellate delay related to a Crown certiorari application and appeal, as well as periods of defence delay and waiver.

The net delay was calculated at 28.5 months, which fell below the presumptive ceiling.

The court found that the defence failed to meet its onus to demonstrate that the delay was unreasonable, noting that the defence's conduct contributed to the delay.

The application for a stay was dismissed.

Following a nine-day trial where the plaintiffs successfully obtained a declaration that a property transfer was a fraudulent instrument and vested a 72.97% interest in their names, the plaintiffs sought costs.

The plaintiffs had made an offer to settle that they matched or exceeded at trial.

The court rejected the defendants' arguments to depart from the general rule regarding offers to settle, finding the defendants' conduct reprehensible and negligent.

The court awarded the plaintiffs partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, payable jointly and severally by the defendants.

The respondents brought a motion for security for costs regarding the appellant's appeal of a Small Claims Court decision that dismissed most of his claims.

The appellant, a former director of a housing co-operative, sued the co-operative, its manager, former directors, and sector organizations after being removed from the board.

The Divisional Court found good reason to believe the appeal was frivolous, vexatious, and devoid of merit.

Given the appellant's reliance on ODSP and unpaid prior costs awards, the court concluded he had insufficient assets.

Balancing access to justice against protecting the respondents from unmeritorious claims, the court ordered the appellant to post $10,000 in security for costs.

The accused was charged with hostage taking in relation to the kidnapping of Amanda Lindhout and Nigel Brennan in Somalia.

The accused admitted to acting as the negotiator and translator for the hostage takers but raised the common law defence of duress, claiming he was forced to participate under threat of death or bodily harm.

The court rejected the accused's evidence as unbelievable, relying on intercepted communications and admissions made to an undercover officer that he participated for a share of the ransom money.

The Crown proved beyond a reasonable doubt that the accused was not acting under duress, and he was found guilty as a party to the offence.

The accused brought a motion to adjourn his criminal trial pending the completion of an appeal to the Federal Court of Appeal regarding a decision under s. 38 of the Canada Evidence Act that refused further disclosure on national security grounds.

The court noted that the criminal proceeding had been ongoing for 27 months and an adjournment would push the trial beyond the 30-month presumptive ceiling established in Jordan.

Finding that the Federal Court judge had already concluded the non-disclosed information would not materially affect the accused's ability to make full answer and defence, the court dismissed the motion to adjourn, prioritizing the public interest in having the trial proceed on the merits without undue delay.

The accused was charged with sexually assaulting his wife in 2002, and with assaulting and threatening to kill his daughter R. The court found the accused not guilty on all three counts.

For the sexual assault charge, the Crown failed to prove mens rea beyond a reasonable doubt, considering the complainant's cultural beliefs about marital obligations and the significant delay in reporting.

For the assault and threatening charges against the daughter, inconsistencies and contradictions in the complainant's and other witnesses' testimonies prevented the Crown from meeting the burden of proof beyond a reasonable doubt.

The plaintiffs, beneficial owners of a property, sought a declaration of ownership and a vesting order after the defendant bare trustee sold the property without their consent.

The trustee, who was subject to personal executions, signed a false affidavit stating he was not the execution debtor to complete the sale.

The court found the trustee was a 'fraudulent person' under the Land Titles Act and the transfer was a 'fraudulent instrument'.

The purchaser was not a bona fide purchaser without notice, as suspicious circumstances put him on inquiry.

The court declared the transfer void and ordered the title rectified to reflect the beneficial ownership interests.

The applicant, charged with taking Amanda Lindhout hostage in Somalia, brought a Garofoli application to exclude wiretap evidence obtained by the RCMP.

The court held that the applicant did not have a reasonable expectation of privacy in phone calls demanding a ransom from the Canadian government.

Although some interceptions were made under an unconstitutional emergency wiretap provision or without prior authorization, the court admitted the evidence under s. 24(2) of the Charter, finding the police acted in good faith and the breaches were not serious.

The court also upheld the validity of the various wiretap authorizations on the amplified record.

The application to exclude the evidence was dismissed.

The applicant, charged with hostage taking, brought an application to exclude statements made to undercover police officers and post-arrest statements.

The police conducted a multi-year undercover operation, posing as a book publisher to lure the applicant to Canada.

The court found the operation was a variant of a 'Mr. Big' operation but did not amount to an abuse of process, and the probative value of the confessions outweighed any prejudice.

The court also dismissed arguments that the applicant's pre-arrest and post-arrest statements violated his section 7 right to silence or his section 10(b) right to counsel, finding the statements voluntary and the right to counsel adequately provided.

The applicant law firm sought costs of $2,500 for a solicitor's lien application regarding a direction to pay from the proceeds of a real estate sale.

The matter was resolved in the applicant's favour on the morning of the hearing.

The respondent argued the application was unnecessary as the new solicitor had agreed to hold funds in trust.

The court awarded costs of $750 plus HST to the applicant, noting the application was successful but may not have been necessary.

The applicants, two cancer researchers, sought judicial review of two decisions by the respondent hospital network regarding findings of research misconduct.

The first decision upheld a reconsidered sanction suspending their research activities after an earlier court decision remitted the matter.

The second decision permanently closed their laboratory following a second investigation committee's finding of material non-compliance with accepted standards due to image manipulation and falsification in published papers.

The Divisional Court dismissed the application, finding the decisions and sanctions reasonable, the reasons adequate, and no reasonable apprehension of bias.

The Plaintiffs sought costs on a partial indemnity basis after successfully opposing a motion for summary judgment and a Rule 21 motion to strike a claim concerning a breach of their s.6 Charter Mobility Rights.

The Defendant largely agreed to the quantum of costs but disputed the portion related to the novel Charter issue.

The court awarded $30,000 in costs, excluding the $7,000 associated with the novel Charter claim, which was ordered to be 'in the cause'.

The defendant brought a motion for summary judgment to dismiss the plaintiffs' claims for negligence and defamation on the basis that the two-year limitation period had expired, and a motion to strike the plaintiffs' claim for a breach of their section 6 Charter mobility rights.

The court found that the plaintiffs could not have reasonably discovered the material facts of their claim until the release of the Iacobucci Inquiry Report, meaning the limitation period had not expired.

The court also refused to strike the section 6 Charter claim, finding it was not plain and obvious that the claim would fail given the practical restrictions on the plaintiffs' ability to leave Canada.

Both motions were dismissed.