SCJ 2012

In a murder trial where the accused admitted to cutting his wife's throat, the Crown sought to adduce a graphic autopsy photograph of the wound to assist the jury in determining the accused's intent.

The accused opposed the admission, arguing the photograph was highly prejudicial and had minimal probative value.

The court found that the photograph had considerable probative value in illustrating the force required to inflict the injury, which was central to the issue of intent.

The court concluded that the probative value outweighed any potential prejudicial effect and ruled the photograph admissible.

In a family law proceeding, the applicant sought an adjournment of the respondent’s motion to reduce a temporary spousal support order of $12,000 per month.

The respondent also sought relief including recharacterizing prior payments for tax purposes, disclosure orders, and access to the matrimonial home for appraisal.

The court determined that the issues, particularly the respondent’s income and competing expert evidence, required a longer motion and that questioning and expert review should occur first.

The motion was adjourned and procedural directions were ordered regarding disclosure, expert meetings, and questioning timelines.

Costs decision following a family law motion seeking to compel disclosure and other relief relating to financial statements and property issues potentially involving third parties.

The court found the moving party’s motion to compel disclosure was largely premature, unnecessary, and overreaching because disclosure timelines had not been fixed, pleadings were incomplete, and some disclosure required cooperation from non-parties.

The court also noted the moving party accepted the responding party’s valuation date during the motion.

Finding that the responding party attempted to avoid the motion and was the successful party, the court awarded partial indemnity costs.

The accused, charged with second degree murder of his wife, sought to exclude statements made to police on the basis that they were involuntary and obtained in breach of his ss. 10(a) and 10(b) Charter rights.

The accused argued that the police failed to provide a Dari interpreter promptly, delaying his ability to consult counsel.

The court found the statements voluntary despite a recording failure, as the officers' notes and an interpreter's statement provided a sufficient record.

The court also dismissed the Charter applications, finding the accused understood the reason for his arrest and his right to counsel in Hindi, and that the delay in securing a Dari interpreter was reasonable in the circumstances.

The statements were ruled admissible.

The plaintiff brought a motion to amend its Statement of Claim to substitute five named individuals for 'John Doe' defendants.

The action involved allegations that the defendants improperly accessed and used the plaintiff's confidential bond trading information.

The court applied the two-part test for misnomer, focusing on whether the 'litigating finger' pointed at the proposed defendants such that they would have known they were the intended parties.

The court granted the motion for four of the individuals, finding they would have recognized they were implicated by the allegations of accessing or destroying information, but denied it for one individual whose role was not clearly implicated by the pleadings.

A dispute arose between two brothers regarding reserve land that their father had initially devised to one son in a will but later transferred into joint tenancy with the other son.

The applicant sought a declaration that the later transfer was invalid on the basis that the testator lacked understanding of joint tenancy and that the transfer failed to comply with requirements under the Indian Act.

The court found that despite limited formal education, the testator was experienced in land transactions and fully understood the effect of joint tenancy.

The transfer had been properly processed and registered by federal authorities and the band council.

The court held that the joint tenancy was valid and that the property passed to the respondent by right of survivorship upon the testator’s death.

Following a summary judgment motion and multiple related motions in a civil action alleging defamation and several other torts, the court determined the appropriate costs awards.

Most of the plaintiff’s claims were dismissed on summary judgment except for defamation, and the court found that the plaintiff’s pleadings were vague and unsupported by evidence.

The court also considered the plaintiff’s litigation conduct, including verbose and inflammatory materials, unnecessary motions, and personal attacks against opposing counsel.

Costs were awarded on a substantial indemnity basis for the defendants’ summary judgment motion and on a full indemnity basis for certain motions brought by the plaintiff.

The plaintiff also received limited partial indemnity costs for earlier attendances, which were set off against the larger amounts owed to the defendants.

The defendants brought a motion for summary judgment seeking dismissal of the plaintiff’s commercial tenancy action on the basis that it was statute‑barred under the Limitations Act, 2002.

The plaintiff alleged that construction, signage interference, and other landlord conduct caused a severe decline in its restaurant business at a shopping mall.

The court held that the limitation period began when the plaintiff knew the defendants’ conduct had caused damage to the business, not when the business ultimately vacated the premises.

Evidence from the plaintiff’s principal indicated that he knew the business was “sinking” by July 2006.

As the action was not commenced until February 25, 2009, the claim was brought outside the two‑year limitation period and was dismissed on summary judgment.

The defendants brought a Rule 21 motion to strike an amended statement of claim on the basis that it disclosed no reasonable cause of action and was an abuse of process due to a related proceeding.

The court applied the stringent Rule 21 test and held that most of the pleaded causes of action—including breach of an implied contractual duty of good faith, inducement of breach of duty, inducement of breach of fiduciary duty, and intentional interference with economic relations—were not plainly doomed to fail and therefore should proceed.

However, the conspiracy claim failed to properly plead the necessary elements and was struck with leave to amend.

The request to stay the proceeding due to a separate action involving a solicitor and law firm was rejected because the parties and subject matter were not the same.

Costs were awarded to the responding parties.

The plaintiff sought summary judgment to enforce payment obligations under a promissory note arising from a share purchase agreement and to enforce a personal guarantee.

The defendants argued that the payment schedule was triggered by completion of a later adjustment process relating to the purchase price rather than the original closing date of the transaction.

The court interpreted the promissory note in light of the share purchase agreement and amendment agreement and held that the payment schedule was triggered by the closing date of the share purchase, not the later adjustment process.

The court further held that the individual guarantor was jointly and severally liable under the guarantee and indemnity.

Summary judgment was granted for the outstanding amounts owing under the promissory note and an additional balance relating to a loan payable to the parent company.

Following a trial where the plaintiff was awarded $24,442.42 in damages for personal injury, the court determined the issue of costs.

The defendants argued the plaintiff should be denied costs under Rule 76.13 for failing to use the simplified procedure.

The court found it was reasonable for the plaintiff to have commenced and continued the action under the ordinary procedure, as the damages claimed were originally well above the $50,000 threshold.

The court awarded the plaintiff partial indemnity costs of $36,771.98, reducing the requested amount to account for duplication of efforts caused by the plaintiff's team approach to litigation.

The defendant brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the plaintiff’s statement of claim on the basis that it disclosed no reasonable cause of action and was frivolous, vexatious, and an abuse of process.

The self-represented plaintiff alleged retaliation, defamation, statutory breaches, and breach of an implied employment contract following a workplace incident while placed through a temporary employment agency.

The court held that alleged breaches of regulatory statutes such as the Occupational Health and Safety Act and the Employment Standards Act do not independently create civil causes of action absent express statutory authorization.

The pleading also failed to properly plead defamation and could not support an implied employment contract claim against the defendant because the plaintiff’s employer was the temporary help agency.

The court found the allegations speculative and unsupported by facts and struck the claim, dismissing the action.

A motion to change a prior custody order under the Children’s Law Reform Act was brought in relation to the residence and parenting arrangement of a child who had historically lived with the maternal grandmother and mother.

The father sought a substantial increase in parenting time and effectively a shared or primary residence arrangement, relying in part on a prior Office of the Children’s Lawyer report recommending that the child reside with him.

The court held that the father failed to establish a material change in circumstances affecting the child’s best interests as required by s. 29 of the Children’s Law Reform Act and the principles articulated in Gordon v. Goertz.

While the father had undertaken counselling and ceased marijuana use, the court found ongoing concerns regarding judgment, past drug use in the child’s presence, criminal convictions, and instability in his personal and financial circumstances.

The court varied the order only to clarify joint custody and impose safety and substance‑use conditions on the father’s access while maintaining the child’s primary residence with the mother and grandmother.

Following convictions for sexual assault and sexual assault causing bodily harm against two young victims, the Crown initiated a dangerous offender application.

Prior to the hearing, the court ruled on the admissibility of documentary records from multiple agencies relating to the accused’s youth criminal history, probation supervision, psychiatric treatment, and counselling.

The court held that hearsay evidence is admissible at sentencing proceedings, including dangerous offender hearings, provided it is credible and trustworthy and subject to the Crown’s burden to prove disputed aggravating facts beyond a reasonable doubt.

The court found the records were prepared contemporaneously by professionals performing public duties and were therefore sufficiently reliable.

The documents were admitted, with certain limitations on their use and with the possibility that their authors could be called for cross-examination if accuracy were seriously challenged.

The Crown sought to prevent the accused from re‑litigating two pre‑trial rulings made during an earlier jury trial that ended in a mistrial after the trial judge recused himself for a reasonable apprehension of bias arising from a personal tax dispute with the Canada Revenue Agency.

The Crown relied on s. 653.1 of the Criminal Code, which presumes that evidentiary and Charter rulings from a mistrial remain binding at a new trial unless the interests of justice require otherwise.

The court held that although the provision creates a presumption favouring preservation of prior rulings, the circumstances of the recusal and the trial judge’s own comments suggesting that earlier rulings might appear influenced by the conflict undermined confidence in those decisions.

Given that concern, the interests of justice required that the impugned motions be re‑litigated before the new trial judge.

The Crown’s application to bind the parties to the earlier rulings was dismissed.

The plaintiffs brought a proposed class action against the directors, officers, and advisors of a Delaware-incorporated company for alleged misrepresentations and failures to disclose under Part XXIII.1 of the Securities Act.

The defendants brought motions to strike the claim for punitive damages, strike the claim against a former director for failing to disclose a reasonable cause of action, and stay the action against the foreign financial advisors on jurisdictional grounds.

The court granted all motions, striking the punitive damages claim as inconsistent with the statutory scheme, striking the claim against the former director without leave to amend, and permanently staying the action against the foreign advisors as the court lacked jurisdiction simpliciter.

The respondent father brought a motion to change a consent order requiring him to pay $500 per month in child support for two children.

Shortly before the consent order was finalized, his employment was terminated and he subsequently began receiving a Canada Pension Plan disability pension.

The court accepted that the order had been entered under a mistaken belief that CPP benefits would fully cover his support obligation and found that the CPP payments to the children constituted a material change in circumstances.

Given the father's limited income and inability to pay the ordered amount, the court varied the support obligation.

Child support was reduced to reflect the shortfall between CPP benefits paid for the children and the original order.

The plaintiff employee brought a summary judgment motion seeking a declaration that termination provisions in an employment contract were unenforceable and did not rebut the common law presumption of reasonable notice.

The employer argued the clause validly limited termination entitlements to the minimum standards under the Employment Standards Act.

The court held that a contractual reference to employment standards legislation was sufficient to incorporate statutory minimum notice requirements and could displace the common law presumption, but found the termination provision nonetheless void because it effectively excluded the continuation of benefits required during the statutory notice period.

As the clause attempted to satisfy all termination entitlements solely through notice or pay in lieu and severance pay, it violated the Employment Standards Act, 2000 and was therefore null and void.

The presumption of reasonable notice at common law was not rebutted and partial summary judgment was granted in favour of the employee.

Following a successful Rule 21 motion dismissing the plaintiffs’ action for lack of jurisdiction, the defendant sought costs.

The court received written submissions only from the defendant after the plaintiffs failed to respond within the time allowed.

The court reviewed the bill of costs and found the time spent and hourly rates to be reasonable given the motion work, including cross-examinations, pleadings, and preparation.

Applying the Rule 57 factors, the court awarded partial indemnity costs fixed at approximately 55% of a reasonable full indemnity bill.

The appellant appealed a summary conviction for operating a motor vehicle with a blood alcohol concentration exceeding the legal limit under s. 253(1)(b) of the Criminal Code.

At trial, the defence relied on the defence of necessity, asserting that the accused drove to assist his wife at the hospital.

The appellate court reviewed the governing principles for summary conviction appeals and the legal test for necessity established in Supreme Court jurisprudence.

The court held that the trial judge correctly stated the law and reasonably found that the elements of necessity—imminent peril, lack of reasonable alternatives, and proportionality—were not established.

Finding no error of law, palpable and overriding error of fact, or miscarriage of justice, the appeal was dismissed.