SCJ 2012

The appellant appealed her summary conviction for operating a motor vehicle with a blood alcohol level over 80 mgs.

She argued the trial judge misapprehended evidence regarding the arresting officer's reasonable and probable grounds to demand breath samples and whether the samples were taken 'as soon as practicable'.

The Superior Court of Justice found no material misapprehension of the evidence, noting the officer's roadside observations were corroborated and the delays in taking breath samples were adequately explained by the need to secure the collision scene and provide the appellant a reasonable opportunity to consult with duty counsel.

The appeal was dismissed.

Following the offender's conviction for procuring and exercising control over a prostitute, the court ordered a Pre-Sentence Report.

Quebec probation services requested a lengthy extension and communicated in French.

The court accommodated the delay by rescheduling the sentencing hearing but issued an endorsement ordering that the report be filed by the extended deadline and in English, as the trial was conducted in English.

The trustee administering the HCV Fund established under a Companies’ Creditors Arrangement Act plan for the Canadian Red Cross Society sought directions regarding approximately $483,983 in settlement funds represented by uncashed cheques issued to class members who could not be located.

The court considered three potential approaches: redistributing the funds to known partially paid claimants, transferring the funds to governmental and institutional bodies to attempt to locate missing beneficiaries, or adopting a hybrid approach.

Emphasizing proportionality and the objective of maximizing compensation to class members, the court held that redistributing the funds to known partially paid claimants provided the greatest certainty of placing the funds with eligible victims.

The court therefore approved redistribution of the unclaimed funds among partially paid claimants and authorized the trustee to donate any residual amounts to a charity if further distribution would be impractical.

The applicant husband brought a motion seeking authorization to obtain a $350,000 line of credit secured against jointly owned matrimonial properties or, alternatively, an order compelling the respondent wife to cooperate with refinancing or the sale of the cottage property.

The husband sought the funds to complete the purchase of a new home with his partner.

The court held it lacked authority to compel a jointly owning spouse to encumber matrimonial property and found that granting the requested relief could prejudice the respondent’s property and support rights under the Family Law Act.

The court also declined to order partition and sale of the cottage prior to trial because doing so could prejudice unresolved equalization and support claims.

The motion and amended motion were dismissed, leaving issues regarding sale of the properties to the trial judge.

The applicant corporation sought orders under the Securities Act and the Business Corporations Act to restrict certain shareholders from voting shares allegedly acquired in breach of early warning reporting requirements, to declare that a shareholder rights plan “flip‑in event” had occurred, and to invalidate a dissident proxy solicitation ahead of an annual general meeting.

The court declined to address the alleged early warning breach because the matter was already the subject of an ongoing Ontario Securities Commission investigation and had previously been withdrawn from related litigation.

Even if a breach had occurred, the court held that the discretionary remedy of prohibiting voting rights would not be appropriate given the circumstances and absence of harm to the market or shareholders.

The court also found no evidence that the respondents acted jointly or in concert in organizing the proxy solicitation or that the circular was misleading under applicable securities and corporate law regulations.

The application was dismissed.

The plaintiff surveying firm sought certification of a proposed class action alleging that the operator of Ontario’s electronic land registry system infringed surveyors’ copyright in registered plans of survey by scanning, storing, and selling digital copies through online portals.

The motion was brought under s. 5 of the Class Proceedings Act, 1992.

The court held that although a cause of action for copyright infringement was adequately pleaded (with the exception of allegations based on “translation” into digital formats), the plaintiff failed to satisfy the remaining certification criteria.

The proposed class definition was merits‑based and there was no evidence that two or more persons wished to pursue the claim.

The court also found that the proposed common issues were largely individualized, particularly regarding ownership of copyright and consent, and that a class proceeding would not be the preferable procedure.

During a criminal prosecution involving firearms offences, the accused brought a voir dire application to exclude evidence under s. 24(2) of the Charter following a warrantless search of a vehicle.

The court had previously found a breach of s. 8 because the search warrant authorized the search of a black Acura but police searched a green Honda Accord.

The Information to Obtain contained misleading information, relied on an untested confidential informant whose information was not corroborated, and resulted in a warrant that could not have properly issued.

Applying the framework in R. v. Grant, the court found the police conduct fell on the serious end of the spectrum despite the reliability of the evidence.

Balancing the Grant factors, the court concluded that admission of the firearms evidence would bring the administration of justice into disrepute.

The accused, Leon Alexander and Edmund Benjamin, were charged in relation to the stabbing deaths of Andy James and Brandon Ramdeen following a boat cruise.

The Crown alleged that Alexander stabbed James or was a party to the stabbing, and that both accused participated in a group assault on Ramdeen during which he was fatally stabbed by another individual.

The trial judge found that while Alexander assaulted James, he did not stab him and his actions were not a significant contributing cause of death.

The judge also found the identification evidence regarding the assault on Ramdeen to be unreliable.

Both accused were acquitted of all charges.

On a Commercial List motion, the moving party sought an order under Rule 57.07 of the Rules of Civil Procedure requiring a former solicitor for the opposing parties to personally pay costs of the action on a substantial indemnity basis.

The hearing was scheduled to proceed but the respondent sought an adjournment due to medical issues following recent cardiovascular surgery.

The court granted the adjournment but addressed the issue of costs thrown away resulting from the late notice of the health issue.

The court held that parties must promptly communicate medical conditions that may affect scheduled hearings to reduce unnecessary costs.

Partial indemnity costs of $10,000 were ordered payable by the respondent to compensate the moving party for preparation costs rendered useless by the last‑minute adjournment.

Following a prior decision allowing the applicant’s application in full and dismissing the municipality’s counter-application, the court determined the appropriate costs award.

The applicant sought over $55,000 on a full indemnity basis.

Applying Rule 57.01(1) of the Rules of Civil Procedure and the principles governing partial indemnity costs, the court considered the complexity of the issues, extensive affidavit evidence and cross‑examinations, the economic significance of the dispute, and adjustments required for overlapping work, calculation errors, and expert-related disbursements.

The court declined to award full indemnity costs and reduced certain fees and disbursements.

Costs were fixed on a partial indemnity basis in the amount of $38,799.91 payable within 30 days.

The applicant, charged with firearms offences, brought a Charter application alleging his section 8 rights were violated by a warrantless search of a vehicle.

The search warrant authorized the search of a black Acura, but the police searched a dark green Honda Accord bearing the same license plate.

The court found that the make and model of the vehicle were relevant identifiers, especially since license plates are easily transferable.

The court concluded that the failure to search the vehicle specified in the warrant was a substantive defect, rendering the search warrantless.

The accused applied under ss. 278.1–278.9 of the Criminal Code for production of various third‑party records relating to the complainant in a historic sexual assault prosecution.

At Stage 1, the court assessed whether the requested records were likely relevant and whether production to the court was necessary in the interests of justice.

The judge found likely relevance only for limited records from the Hospital for Sick Children, the Ontario Disability Support Program, and the complainant’s family medical clinic, and ordered those records produced to the court for review.

After reviewing the records at Stage 2, the court concluded that none contained information linking the accused to the complainant’s mental health issues or assisting with the timeline of events, and directed that the matter proceed by agreed statement of facts reflecting that absence.

The husband brought a motion for summary judgment to dismiss the wife's claims to set aside their separation agreement and for spousal support and equalization.

The wife alleged the husband failed to provide accurate financial disclosure regarding the value of his business, and that the agreement was signed under duress and without independent legal advice.

The court granted the summary judgment motion, finding no genuine issue for trial.

The court held that the wife, a lawyer who had access to the husband's financial information, chose not to investigate the values provided and could not now rely on alleged non-disclosure to set aside the agreement.

The court also found no evidence of duress or unconscionability, and upheld the spousal support release under the Miglin framework.

During a criminal trial for assault with a knife, the Crown brought an application to admit the complainant’s preliminary inquiry testimony through an audio recording rather than calling the witness at trial.

Medical evidence established that the witness had developed schizophrenia and was suffering from psychosis, paranoia, and disorganized thinking, rendering him unable to testify and likely to suffer psychological harm if required to attend court.

The court held that the requirements of s. 715(1)(c) of the Criminal Code were satisfied because the witness was unable to testify and had previously testified under oath with full opportunity for cross‑examination.

The court further found that the evidence met the principled exception to hearsay, satisfying both necessity and threshold reliability.

The prior testimony from the preliminary inquiry was therefore admitted.

The Children’s Aid Society sought to further restrict a biological mother’s access to two Crown ward children from supervised biweekly visits to supervised visits every two months.

The court considered the best interests of the children under the Child and Family Services Act, finding that while the mother had undermined the authority of the foster parent and the Society, there was insufficient reliable evidence linking the children’s serious behavioural and emotional challenges to her contact with them.

The court concluded that the children continued to benefit from regular contact with their mother but that closer supervision and structured conditions were necessary.

A staged access regime was ordered beginning with supervised alternating visits with each child, progressing to supervised joint visits and eventually limited unsupervised access if strict compliance with conditions occurred.

Detailed restrictions were imposed on communication, gifts, food, and disclosure of information about the children.

The applicant sought costs following a successful application to enforce a New York judgment in Ontario concerning the sale of a painting.

The court had previously permitted enforcement of the foreign judgment but stayed execution pending the outcome of an appeal in New York.

The applicant requested costs on a substantial indemnity basis, arguing the respondent had repeatedly attempted to relitigate issues already decided and had engaged in delay tactics through multiple proceedings and appeals.

The court agreed that the respondent’s conduct justified substantial indemnity costs but reduced the amount claimed due to concerns about the involvement of multiple senior counsel.

Costs were awarded to the applicant in the amount of $94,298.28 inclusive of fees, disbursements, and HST.

The accused, charged with armed robberies, brought a pre-trial motion seeking disclosure of the Crown's prosecution file regarding a police officer's prior acquittal for manslaughter.

The accused alleged the officer was involved in beating him to extract a confession and sought the file to cross-examine the officer on his propensity for violence.

The court dismissed the application, holding that the requested information was clearly irrelevant, as an acquittal is a verdict of legal innocence and the facts underlying it cannot generally be used to establish propensity or credibility.

The defendants brought a motion to set aside a noting in default and a default judgment in an action concerning an alleged default under a second mortgage.

The defendants had served a notice of intention to defend but did not deliver a statement of defence and were subsequently noted in default and subjected to default judgment.

The court considered Rules 19.03 and 19.08 of the Rules of Civil Procedure and the circumstances surrounding communications between counsel.

The court found that plaintiff’s counsel failed to provide notice of the intention to note the defendants in default and failed to respond to correspondence from new defence counsel.

In the interests of justice, the court set aside the noting in default and the default judgment and ordered the defendants to deliver a statement of defence within 20 days.

The plaintiffs brought motions seeking an order that two civil actions arising from alleged sexual assaults by a school guidance counsellor be tried together or consecutively.

The plaintiffs also sought an extension of time to set the actions down for trial and leave to amend one statement of claim.

The court applied Rule 6.01 of the Rules of Civil Procedure and found that the actions shared common questions of fact, overlapping witnesses, and a risk of inconsistent findings.

The court concluded that judicial economy and the interests of justice supported coordinating the proceedings.

Leave to amend was granted, timelines for trial were extended, and the actions were ordered to be placed on the trial list to be tried together or consecutively as directed by the trial judge.

The plaintiff sued the defendant general surgeon for medical malpractice following a laparoscopy assisted vaginal hysterectomy during which her left ureter was transected.

The court found that while the defendant was qualified to perform the surgery and did not breach the standard of care in its execution, he was liable for battery as he failed to obtain informed consent regarding the specific risk of ureter damage.

Furthermore, the defendant breached the standard of care by negligently delaying the diagnosis of the complication, failing to order a CT scan despite clear symptoms and recommendations from colleagues.

The plaintiff was awarded damages for pain and suffering, past and future income loss, and OHIP's subrogated claim.