SCJ 2013

The moving defendants sought summary judgment dismissing the action against them following a pedestrian‑vehicle collision on a highway involving a waste management truck stopped during municipal waste collection.

The plaintiffs alleged the truck was negligently stopped in contravention of posted signs under the Highway Traffic Act and may have obstructed the line of sight of the tractor‑trailer driver who struck the pedestrian.

The court held the motion was premature because discoveries had not been completed and key evidence from the tractor‑trailer driver was unavailable.

The court also found unresolved factual issues regarding possible contributory negligence and the applicability of statutory immunity under s. 448(1) of the Municipal Act.

A genuine issue requiring a trial existed.

The moving parties sought leave to amend a statement of claim to add affiliated corporations as plaintiffs and to plead additional causes of action including negligent misrepresentation, breach of by-laws and guidelines, and misfeasance in public office arising from a municipal waste management tender process.

The defendant opposed the amendments on the basis that the proposed claims were statute barred under the Limitations Act, 2002.

The court held that amendments should be granted unless clearly impossible of success or causing non-compensable prejudice.

The proposed amendments arose from the same factual matrix as the existing claim and could reasonably succeed.

Issues concerning the limitation period and discoverability were triable matters better left for determination at trial.

The accused brought a pre-trial application seeking to declare s. 255(3.2) of the Criminal Code unconstitutional under ss. 7, 8, and 11 of the Canadian Charter of Rights and Freedoms.

The issue before the court was whether the constitutional challenge should be decided before the commencement of the jury trial or deferred until after trial.

The court held that constitutional issues should not be determined in a factual vacuum and should only be decided if necessary to resolve the matter.

Because the accused might not ultimately be convicted of the impugned offence, the court concluded that a full factual record following trial was required.

The application to determine the constitutional issue before trial was therefore denied.

The appellant appealed convictions for impaired operation and care or control of a motor vehicle while over the legal limit following a collision.

The central issue at trial was whether the appellant had been the driver or merely a passenger, with the defence asserting that another individual had been driving and raising non-insane automatism based on a head injury.

The appeal court held that the trial judge’s reasons were inadequate because they failed to analyze key potentially exculpatory evidence, including seatbelt markings on the appellant’s shirt consistent with the passenger position, and failed to sufficiently address discrepancies in eyewitness testimony.

The appellate court found that the deficiencies prevented meaningful appellate review of whether the evidence had been properly considered.

The convictions and conditional stay were therefore set aside and a new trial ordered.

Following a trial in a personal injury action, the court addressed the issue of costs after written submissions.

The successful plaintiff sought substantial indemnity costs alleging litigation misconduct by the defendants, including failure to produce an important engineering drawing and challenging the plaintiff’s credibility.

The defendants argued costs should be reduced due to delay and duplication arising from the plaintiff changing counsel multiple times and periods of self‑representation.

The court held that neither party’s conduct justified substantial indemnity costs and emphasized the principle that cost awards must be fair and reasonable rather than matching actual legal fees.

Partial indemnity costs of $200,000 inclusive of taxes and disbursements were awarded to the plaintiff, apportioned in accordance with the liability findings.

The moving defendants sought an extension of time to deliver their statements of defence in a complex commercial action alleging conspiracy and misappropriation of corporate assets relating to an international family business enterprise.

The plaintiffs opposed the request and argued the defendants should immediately challenge the pleadings or deliver defences.

The court exercised its discretion under the Rules of Civil Procedure to extend the time, finding that jurisdiction and service motions involving foreign defendants could significantly affect the structure of the litigation.

Requiring the defendants to attack the pleadings or file defences before those issues were resolved would create inefficiency, risk inconsistent rulings, and provide little practical progress in the litigation.

The extension was granted until the final determination of service and jurisdiction motions involving the foreign defendants.

The offender, an Aboriginal man, was convicted of second degree murder following a brutal attack on the victim.

The mandatory sentence was life imprisonment, and the sole issue was the period of parole ineligibility.

The Crown sought 15 years, while the defence sought the minimum 10 years.

The court extensively reviewed the offender's profound intergenerational trauma, including the impact of residential schools on his parents, severe childhood abuse, neglect, and systemic racism, applying the Gladue and Ipeelee principles.

Balancing the gravity of the offence with the offender's reduced moral culpability due to these systemic factors, the court set the period of parole ineligibility at 10 years.

The applicant brought a motion for leave to appeal portions of an earlier order concerning security for child support and related procedural matters involving a foreign support order.

The court considered whether failure to register a German support order under the Interjurisdictional Support Orders Act, 2002 constituted a jurisdictional defect invalidating the earlier order.

The court held that any deficiencies in complying with the statutory procedure were procedural irregularities capable of being cured nunc pro tunc and not jurisdictional prerequisites.

The motion was characterized as a collateral attack on an earlier order that had not been appealed, and the court found no basis to interfere with the discretion exercised by the earlier judge.

Leave to appeal was therefore refused.

The offender was sentenced following jury convictions for possession of a loaded prohibited firearm, ammunition, and a high-capacity magazine without authorization, along with related firearms offences and breach of a Youth Court prohibition order.

The firearm, a loaded prohibited handgun with a removed serial number and a magazine capable of holding more than ten rounds, was discovered in a suitcase containing the offender’s identification during execution of a search warrant.

The court considered the offender’s lengthy and escalating criminal record involving violence and firearms, emphasizing denunciation and deterrence as primary sentencing objectives under s. 718 of the Criminal Code.

After reviewing comparable authorities and rejecting a constitutional challenge to the mandatory minimum under s. 95, the court imposed a six-and-a-half-year sentence for possession of the loaded firearm with concurrent sentences on related counts and a consecutive one-year sentence for breach of a prohibition order.

Credit was granted for pre‑sentence custody, including enhanced credit for time spent triple bunked and during lockdown conditions.

The applicant mother brought a motion to change a final order, seeking retroactive contribution for section 7 expenses (medical, dental, and post-secondary education) incurred on behalf of the parties' adult child.

The court determined the Divorce Act applied and dismissed the motion on multiple grounds.

The applicant failed to establish a material change in circumstances, failed to comply with the previous order's preconditions for claiming section 7 expenses, and provided insufficient evidence to prove ongoing entitlement to child support or to conduct the required analysis under section 3(2) of the Federal Child Support Guidelines.

The accused brought a Corbett application seeking to exclude portions of his criminal record if he elected to testify at trial on firearm possession charges.

The court applied the factors from R. v. Corbett to determine whether the probative value of the prior convictions on credibility outweighed the risk of prejudice.

While the accused argued that violent and weapons-related convictions were highly prejudicial and of little value to credibility, the court found that many convictions were relevant to present a balanced picture of his respect for societal rules, particularly given defence attacks on police credibility.

However, convictions for weapons possession and use of an imitation firearm were excised due to their similarity to the charges before the jury, and the attempted murder conviction was edited to an assault conviction to minimize prejudice.

The remaining convictions could be used for credibility purposes if the accused testified.

The applicant and his co-accused were jointly charged with firearms offences after a search warrant was executed at an apartment.

The applicant brought an application to sever his trial from his co-accused, arguing that a joint trial would prevent him from adducing bad character evidence about the co-accused to raise a reasonable doubt about his own guilt.

The court dismissed the application, finding that the proposed evidence was inadmissible propensity and hearsay evidence.

The court applied the factors for severance and concluded that the strong factual and legal nexus, risk of inconsistent verdicts, and judicial economy strongly favoured a joint trial.

The accused applied to exclude statements made to police following the execution of a high-risk search warrant for firearms.

Officers entered the apartment with a forced entry and distraction device, pointed firearms at the accused, restrained him with zip ties, and questioned him within approximately one minute of entry without first administering a police caution.

The court considered whether the statements were voluntary under the common law confessions rule and the accused’s right to silence.

Given the highly coercive circumstances, the accused’s state of stress, the absence of a caution, and the fact that the answers were given in response to police questioning while the accused was detained and restrained at gunpoint, the court found a reasonable doubt as to voluntariness.

The statements were therefore excluded from evidence at trial.

The accused brought a motion seeking a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms on the basis of a 38.5‑month delay between arrest and the commencement of trial on firearms possession charges.

The case arose out of a large-scale police investigation involving numerous accused, extensive disclosure, and a lengthy preliminary inquiry.

Applying the Morin framework, the court categorized most of the delay as inherent to the complexity of the prosecution and the multi‑accused preliminary inquiry, with a later portion attributable to institutional delay.

The court also considered that the accused had not sought severance or earlier trial dates and had agreed to scheduling decisions that contributed to the timeline.

Balancing the reasons for delay and the limited demonstrated prejudice, the court concluded that the delay did not amount to a breach of s. 11(b).

Following a family law motion in which the respondent was found to have breached a prior court order requiring cooperation with a reintegration program, the court addressed the issue of costs.

The moving party sought full recovery costs alleging unreasonable conduct and bad faith, while the responding party argued no costs should be awarded and sought costs relating to an adjournment.

The court found the moving party had been successful on the most important issue, namely the finding of breach of the court order.

While rejecting the claim for full recovery costs and excluding work related to unrelated issues, the court fixed a fair and reasonable amount payable by the unsuccessful party.

Self-represented plaintiffs brought a motion for leave to amend their statement of claim in litigation concerning alleged improper property tax arrears, tax increases, and related municipal conduct.

The defendant municipality opposed several amendments, arguing that some referred to settlement discussions, were legally untenable, or improperly pleaded evidence or argument.

The court applied Rule 26.01 of the Rules of Civil Procedure, emphasizing the presumptive right to amend pleadings unless non-compensable prejudice would result.

While certain amendments were refused—particularly those referring to settlement privilege, improperly pleaded Charter claims, irrelevant commentary, and legally untenable allegations—the majority of amendments were permitted with modifications, recognizing the latitude afforded to self-represented litigants.

The defendant’s cross-motion seeking case management was adjourned without a date.

Supplementary reasons addressing an omission in earlier reasons regarding the commencement date for interim spousal support in a family law proceeding.

The court had previously imputed income to the respondent after finding he remained in France contrary to an agreement to return to Canada where he had been gainfully employed.

While the earlier reasons declined to determine arrears of spousal support, the court clarified the start date for interim payments.

Interim spousal support was fixed at $1,300 per month beginning July 1, 2013.

Child protection proceeding under the Child and Family Services Act where the applicant society sought a Crown wardship order with a view to adoption for a young child who had been in foster care with paternal relatives for more than two years.

The court found the child to be in need of protection due to earlier neglect, poor parental decision‑making, and developmental concerns.

However, the evidence showed significant improvement by the mother, including stable housing, consistent participation in services, and successful unsupervised access visits.

Applying the CFSA principle that the least intrusive order consistent with the child’s best interests must be made, the court concluded Crown wardship was premature.

The child was returned to the mother’s care under a 12‑month supervision order with detailed conditions and continued oversight by the society.

The accused was charged with making and possessing child pornography.

Police detained the accused for bizarre behavior and subsequently entered his home without a warrant, despite his explicit instructions not to do so, claiming exigent circumstances.

During the search, police discovered child pornography.

The accused brought a Charter application to exclude the evidence.

The court found that the warrantless search violated the accused's s. 8 Charter rights, as there was no genuine urgency or threat to public safety justifying the entry.

Applying the Grant framework, the court excluded the evidence under s. 24(2) of the Charter, concluding that the serious Charter-infringing conduct outweighed the reliability of the evidence.

The appellant appealed a Small Claims Court decision dismissing its $10,000 breach of contract claim against the respondent for a cancelled convention hall booking.

The trial judge found the parties had mutually agreed to cancel the contract and that the cancellation clause was an unenforceable penalty rather than a genuine pre-estimate of damages.

The Superior Court of Justice dismissed the appeal, finding no error in the trial judge's assessment of the evidence, credibility findings, or conclusion that the damages claimed were arbitrary and excessive.