Robert J. Smith

The accused, Floyd Herbert, was found guilty of eight counts including sexual assault, assault, threatening bodily harm, uttering a threat to kill an animal, forcible entry, and three counts of failing to abide by conditions of recognizance.

The offences involved a violent sexual assault and forcible entry into the 62-year-old complainant's apartment.

The court considered the accused's extensive criminal record, cocaine addiction, and mitigating factors such as remorse and efforts towards rehabilitation.

Applying principles of specific and general deterrence, denunciation, and rehabilitation, the court sentenced the accused to a total of five years in prison, with credit for two years of pre-trial custody, leaving three years to serve.

Additional orders included a lifetime firearms prohibition, a DNA order, and a 20-year SOIRA order.

Mark Catto died intestate.

His mother, Nan Catto, and brother, Chuck Catto, brought an application seeking orders to exhume Mark's ashes for reburial, appoint Nan as Estate Trustee, compel the Estate to repay funeral expenses paid by Nan, and allow Chuck to inspect a hockey card collection.

The court determined it had jurisdiction to hear the application.

It appointed Mark's wife, Donna McKay, as Estate Trustee, granting her the right to decide on the burial of the ashes, thus denying the exhumation request.

The court ordered the Estate to repay Nan for funeral expenses, finding she did not intend them as a gift.

Chuck Catto was granted the right to inspect the hockey card collection.

The defendant Lumipro Inc. sought summary judgment to dismiss the action, arguing the plaintiff Maxrelco Inc. lacked standing as it was a shareholder, not the property owner, and that Lumipro was only hired for repairs, not maintenance.

Maxrelco Inc. brought a cross-motion to amend its Statement of Claim to correct a misnomer, changing the plaintiff to Maxrelco (Immeubles) Inc., the actual property owner.

The court granted Maxrelco's cross-motion, finding it was a misnomer and caused no prejudice to the defendant.

Consequently, the court dismissed Lumipro's summary judgment motion, determining there was a genuine issue requiring a trial regarding the cause of the fire and Lumipro's alleged negligence in sign repair and maintenance.

The Children's Aid Society of Ottawa sought Crown wardship for the child ZS via summary judgment.

The mother opposed, arguing for another chance to parent.

The court found the child in need of protection due to the parents' history of missed visits, domestic conflict, and inability to meet the child's significant medical needs, especially after an unsuccessful reintegration attempt.

Given the child had been in care for 18 months, exceeding statutory timelines, the court determined it was in the child's best interest to be made a Crown ward for adoption, dismissing the mother's arguments as unsubstantiated denials.

The appellant, a lawyer, sought leave to appeal a costs decision that dismissed his claim for costs against his former clients.

The motion judge found that the appellant breached section 28 of the Solicitors' Act by acquiring his clients' interest in their action, rendering the agreement void ab initio.

The court dismissed the leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision.

The court affirmed the motion judge's proper exercise of discretion under the Courts of Justice Act, citing the unfair and prohibited nature of the agreement, the lawyer's inability to acquire a right of subrogation, and breaches of Contingency Fee Agreement Regulations, as well as the lawyer's conflict of interest.

The plaintiff, The Roman Catholic Episcopal Corporation of Ottawa (RCECO), sued the defendant insurer, l’Assurance mutuelle de l’inter-ouest (Mutuelle), for confirmation of insurance coverage for sexual abuse claims.

Initially, RCECO sought coverage for eight pre-1976 claims, which were later found to be uncovered as Mutuelle was not licensed for public liability insurance before that period.

RCECO subsequently amended its claim to include four additional claims, three of which Mutuelle recognized.

Mutuelle brought a motion for summary judgment, but the parties settled, resulting in nine claims being dismissed and three recognized.

The sole remaining issue was costs.

Mutuelle sought partial indemnity costs, arguing greater success, while RCECO sought substantial indemnity costs, citing Mutuelle's unreasonable conduct in failing to respond to coverage inquiries.

The court acknowledged Mutuelle's greater success in dismissing claims but also noted its unreasonable conduct.

Ultimately, the court declined to award costs to either party, finding RCECO's claimed costs excessive for a settled summary judgment motion.

Licensed taxicab drivers and their union brought a motion for an interlocutory injunction to restrain Uber drivers from operating in Ottawa, alleging breaches of the City's taxi by-law and various economic torts.

The court found that while one taxicab driver had standing as a ratepayer and there was a serious issue to be tried, the plaintiffs failed to establish irreparable harm, as their alleged economic losses could be quantified in monetary terms.

Furthermore, the balance of convenience did not favour an injunction, given the plaintiffs' delay, their private financial interest, and the City's pending policy review of ridesharing services.

The motion for an injunction was dismissed.

The defendants successfully defeated the plaintiff's motion for an injunction regarding the processing and delivery of radioactive Cobalt-60.

The defendants sought costs of $69,000 on a partial indemnity basis, while the plaintiff argued for $25,000 or deferral to arbitration.

The court considered the complexity of the technical and legal issues, the high value of the goods involved, and the urgency of the motion.

The court fixed costs payable by the plaintiff to the defendants at $45,000 for fees and $6,000 for disbursements on a partial indemnity scale.

The plaintiff municipality brought a motion to compel the defendant engineering firm to produce a Risk Management Report and answer questions refused at cross-examination.

The defendant argued the report was protected by litigation and common law privilege.

The court found the report was relevant to the issue of discoverability, as the plaintiff alleged the defendant acted in a conflict of interest by reassuring it about the quality of work.

The court held the report was not protected by litigation privilege because it was not prepared for the dominant purpose of litigation, nor was it protected by common law privilege as it did not meet the Wigmore criteria.

The motion was granted.

The moving party sought an extension of time to file a notice of appeal and leave to appeal an order staying an earlier appeal pending the filing of trial transcripts in a family law child support dispute.

The court held that the requirement for transcripts was reasonable given that the proposed appeal challenged factual findings of the trial judge.

The moving party failed to provide transcripts, did not adequately explain a delay of approximately three and a half years, and did not demonstrate prompt action once aware that the appeal deadlines had expired.

The court also found that the proposed appeal lacked merit and did not raise an issue of general importance warranting leave to appeal.

The accused was charged with multiple offences arising from two incidents, including sexual assault, assault, uttering threats, unlawful entry, and breaches of recognizance conditions.

The court applied the credibility framework from R. v. W.(D.) and rejected the accused’s testimony, finding it unreliable and inconsistent with the surrounding evidence.

The complainant’s account of the February incident was accepted, supported by medical evidence of cervical bruising and corroborative circumstances.

The court found the accused guilty of sexual assault, assault in an elevator, uttering threats including threats to kill the complainant’s dog, unlawful entry into the complainant’s apartment, and several recognizance breaches.

However, the accused was acquitted of assault with a weapon and possession of a weapon due to insufficient corroboration and lack of independent evidence regarding the alleged knife incident.

The accused applied for an order requiring that his murder trial be scheduled earlier than the agreed trial date because he would have been in custody for nearly four years by the time of trial.

Granting the request would effectively require the reassignment of one of the Crown prosecutors who was unavailable on earlier court dates.

The court held that the assignment of Crown counsel is an exercise of prosecutorial discretion belonging to the Attorney General and is reviewable only for abuse of process.

As no abuse of process or improper motive was alleged or established, the court declined to interfere with prosecutorial discretion.

The application for an earlier trial date was therefore dismissed.

The plaintiffs sought continuation of an ex parte Mareva injunction freezing the defendant’s assets in a civil action alleging fraud, negligent misrepresentation, and unjust enrichment arising from more than $1.6 million paid over thirteen years for alternative therapy.

The court considered whether the plaintiffs established a strong prima facie case and whether the balance of convenience favoured continuation of the injunction.

The court found the plaintiffs failed to demonstrate a strong prima facie case, noting that the payments were voluntarily made for services provided by an astrologist and medium whose credentials were not misrepresented.

The court accepted an undertaking that the net proceeds from the defendant’s Quebec residence would be held in trust pending further order.

The Mareva injunction was therefore not continued except for the confidentiality provisions.

Following a successful motion for child support and special expenses in a family law proceeding, the mother sought substantial indemnity costs on the basis that the father had refused to pay support after the child returned to reside with her and the maternal grandparents.

The father argued that costs should be reserved to the trial judge.

The court rejected that submission, holding that costs should generally be fixed after each step under the Family Law Rules.

While the father’s refusal to pay support justified an award of costs, his position was not sufficiently unreasonable to warrant substantial indemnity costs.

Costs were fixed on a partial indemnity basis.

Costs decision following a motion to vary an existing order for child support and spousal expenses in a family law proceeding.

The responding party sought $2,500 in costs after successfully obtaining a variation of the order.

The moving party argued that no costs should be awarded because she was successful on the issue of special expenses for orthodontic work.

The court held that success was divided but recognized that the responding party had succeeded in varying the order.

Costs of $1,000 were awarded to the responding party, to be deducted from existing child support arrears owed.

Following a family law motion concerning imputed income, child support, spousal expenses, and access terms, the respondent sought costs on a substantial indemnity basis after being substantially successful.

The court considered the parties’ offers to settle, noting that the result was nearly identical to the respondent’s offers except for a lower imputed income amount.

Because the result did not equal or exceed the offers, the court declined substantial indemnity costs and instead awarded costs on a partial indemnity basis.

The court also considered proportionality and the similarity between the parties’ legal bills.

Costs were ordered payable by the applicant to the respondent.

The accused brought a motion for a directed verdict seeking acquittals on firearm possession charges, arguing the Crown had not led evidence capable of establishing knowledge of the firearm’s presence.

The Crown relied on circumstantial evidence linking the accused to a residence where a loaded 9 mm handgun and ammunition were found concealed in the master bedroom.

The court applied the directed verdict test and considered whether there was some evidence upon which a properly instructed jury could convict.

The court held that multiple pieces of circumstantial evidence supported an inference that the accused knew of and had control over the firearm.

The motion for a directed verdict was therefore dismissed.

The appellant appealed an assessment officer’s decision approving a solicitor’s fees of $75,000 plus $5,000 in assessment costs.

The appellant argued the award was unreasonably high and alleged several errors in principle, including failure to consider certain emails, improper consideration of pleadings, abusive conduct by the lawyer, and inability to pay.

The court held that the assessment officer considered the relevant evidence, applied the correct burden of proof, and made no palpable and overriding errors of fact.

The appellant failed to identify any error in principle in the assessment decision.

The appeal was therefore dismissed and costs were awarded against the appellant.

Following a discovery-related motion concerning production of documents and claims of solicitor‑client privilege, the defendant sought costs exceeding $55,000 on a partial indemnity basis.

The plaintiff, who was self‑represented, had largely failed on the underlying motion, obtaining production of only one document and clarification of indexing in the affidavit of documents.

Applying the factors under Rule 57 of the Rules of Civil Procedure, including success, proportionality, and the reasonable expectations of the losing party, the court concluded the amount sought was excessive.

The court reduced the recoverable fees to $25,000 plus HST and limited disbursements.

Costs were ordered payable in any event of the cause.

The offender was convicted of conspiracy to commit fraud and fraud after impersonating a bank customer and directing a financial institution to transfer $497,000 from the victim’s account to another account.

The scheme involved obtaining confidential banking information from a co‑conspirator and using it to take over the victim’s account.

The court considered significant aggravating factors including the large amount involved, planning and organization of the offence, commission of the offence while on release for a similar charge, and the offender’s prior fraud convictions.

Although the funds were ultimately recovered and the offender had family and health circumstances, denunciation and deterrence were emphasized.

A penitentiary sentence within the three‑to‑five‑year range for serious bank fraud was imposed.