SCJ 2013

The accused was charged with attempted murder, discharging a firearm with intent to endanger life, possession of a loaded prohibited or restricted firearm, and breaching a recognizance prohibiting possession of weapons.

The Crown’s case centered on recognition identification evidence from the victim, who had known the accused from prior encounters and observed him on a bus moments before being shot at close range.

The court carefully reviewed the inherent frailties of eyewitness identification but found the recognition evidence reliable when considered alongside corroborating testimony from a bus passenger and other circumstantial evidence.

The victim’s identification was supported by the sequence of events linking the accused from the bus to the shooting and by evidence placing him near the scene.

The court concluded the Crown proved beyond a reasonable doubt that the accused was the shooter and that firing a handgun at the victim’s head at point‑blank range established the intent required for attempted murder.

The applicant, charged with drug offences, brought a Charter application to exclude evidence seized during the execution of a search warrant at his motel room.

He argued the Information to Obtain (ITO) was deficient, the no-knock entry was unreasonable, and his rights were breached when he was questioned before being advised of his right to counsel.

The court found the ITO established reasonable grounds based on corroborated confidential informant tips, and the no-knock entry was justified by exigent circumstances.

While the pre-caution questioning breached the applicant's rights, the court applied the Grant framework and concluded the physical evidence should not be excluded, as society's interest in adjudicating the case on its merits outweighed the fleeting breach.

Following a successful application permitting a limited partnership to continue a proposed class proceeding despite a registration error under the Limited Partnerships Act, the court addressed costs.

The moving party sought partial indemnity costs, or alternatively substantial indemnity costs after making an offer to settle.

The responding party argued that no costs should be awarded because the motion was required to remedy the moving party’s own mistake.

The court held that although the error required the application, the responding party chose to contest the legal issue regarding whether the existing action could continue.

Partial indemnity costs of $22,500 were awarded to the moving party.

The applicant, a federal inmate serving a life sentence for first degree murder, sought habeas corpus with certiorari in aid challenging a prison decision increasing his security classification and transferring him from a medium to a maximum security institution.

He argued the decision was unlawful because the Correctional Service of Canada failed to disclose sufficient information to permit him to respond to allegations linking him to an inmate assault, contrary to s. 27 of the Corrections and Conditional Release Act and the Canadian Charter of Rights and Freedoms.

The court held that inmates are not entitled to full Stinchcombe‑level disclosure in institutional administrative decisions and that only sufficient disclosure to understand the case to meet is required.

The court found that the applicant received the gist of the allegations and that additional information could properly be withheld to protect confidential informants and institutional security.

The warden’s decision was supported by a reasonable belief that the transfer was necessary for the orderly administration of the institution.

The person sought in extradition proceedings applied for disclosure of the United States indictment at the committal stage.

The Attorney General argued that disclosure was premature because extradition judges determine committal based solely on the record of the case and the indictment would be disclosed later at the surrender stage.

The court held that while jurisprudence does not require disclosure of the indictment at the committal phase, it does not prohibit it.

Because the indictment was necessary for the person sought to understand the full jeopardy faced in the requesting state and to make informed decisions about consenting to committal, surrender, or waiving extradition under the Extradition Act, withholding it would undermine those statutory rights and violate principles of fundamental justice under s. 7 of the Charter.

The Attorney General was ordered to disclose the indictment with the condition that it not be used to challenge committal.

Following a family law trial, the court determined costs where the applicant had been self-represented.

The applicant sought broader recovery, including reimbursement of legal fees previously paid to counsel and relief related to family debts discharged in the respondent’s bankruptcy.

The court held that costs cannot be used to indirectly redistribute property or circumvent the legal consequences of bankruptcy.

While the applicant achieved a better result than the respondent’s trial offer, recovery for a self‑represented litigant was limited to reasonable disbursements directly related to trial attendance.

The court awarded modest disbursements for purchases, parking, and mileage.

Following earlier proceedings between the parties in a family law matter, the court was asked to determine costs.

The respondent submitted that success in the proceeding was divided between the parties.

The court agreed that neither party achieved clear success.

Applying the principle that costs generally follow the event unless justice requires otherwise, the court held that no party should receive costs.

The respondent father brought a motion seeking expanded parenting time, including overnight access, with the parties’ young child.

The applicant mother opposed the expansion and brought a cross‑motion seeking dismissal of the motion, temporary custody, and other relief, arguing that the child was not comfortable with overnight visits and required stability.

An Office of the Children’s Lawyer report recommended gradual expansion of parenting time leading eventually to overnight visits, although no timeline had been established.

The court found no evidence suggesting that overnight parenting time with the father posed any risk to the child and concluded that progression toward overnights was in the child’s best interests despite the high conflict between the parties.

A staged schedule was ordered gradually expanding the father’s time to include overnights and alternating weekends, while custody was left to be determined at trial.

The plaintiff brought a motion for summary judgment claiming unjust enrichment and seeking to enforce a guarantee against the defendants after mistakenly depositing over $230,000 into the corporate defendant's bank account.

The individual defendant used the funds to pay personal and corporate debts.

The court dismissed the motion, finding that genuine issues requiring a trial existed regarding the quantification of the benefit to the individual defendant and the enforceability of the guarantee and terms of the merchant agreement.

In a family law proceeding concerning child and spousal support, the applicant brought a motion to compel financial disclosure and to strike the respondent’s motion to change an existing support order that had incorporated a prior arbitral award imputing significant income to the respondent.

The respondent asserted a substantially lower income and sought retroactive variation of support, while the applicant alleged the respondent’s income remained significantly higher and sought increased support.

The court reviewed the history of disclosure, expert reports, and arrears of support.

Rather than striking the motion to change, the court directed compliance with disclosure obligations, ordered payment of arrears, scheduled further case management steps, and set the matter down for trial.

Insurance brokers brought a motion for partial summary judgment seeking dismissal of a negligence claim alleging failure to obtain adequate insurance coverage for a commercial property.

The plaintiff had pleaded that the brokers failed to secure sufficient coverage and failed to advise regarding a co‑insurance clause.

The court found the documentary email record demonstrated the insured provided specific instructions regarding coverage and did not rely on the brokers to assess insurance needs.

The plaintiff also failed to adduce expert evidence establishing breach of the standard of care and could not demonstrate any loss caused by the brokers because the insurance coverage ultimately exceeded the repair costs.

Finding no genuine issue requiring a trial, the court granted summary judgment dismissing the action against the broker defendants.

The parties brought competing motions seeking further documentary production in litigation concerning early termination of a commercial lease.

The landlord sought disclosure of the tenant’s corporate financial statements to assess claimed damages, while the tenant sought disclosure of the landlord’s rent rolls and leasing records to support its mitigation defence and counterclaim.

The court held that both categories of documents met the relevance test under the Rules of Civil Procedure notwithstanding commercial sensitivity.

Each party was ordered to produce the requested information, subject to the possibility of narrower agreement between counsel.

The court also directed the parties to update their discovery plan and consider involving accounting experts to streamline production and discovery.

The accused pleaded guilty to aggravated sexual assault against a two‑year‑old child in his care, causing severe vaginal injuries resulting from repeated blunt force trauma and penetration.

The sentencing judge emphasized the extreme vulnerability of the victim, the breach of parental trust, and the gravity of the injuries.

While mitigating factors included the accused’s guilty plea, youth, difficult upbringing, Indigenous background, and limited adult criminal record, the court held that denunciation and deterrence were paramount.

The court accepted the Crown’s proposed sentence of seven years’ imprisonment, subject to credit for pre‑trial custody.

Enhanced credit of 1.5:1 was granted for most remand time due to harsh conditions and protective custody, except for 60 days of misconduct credited at 1:1.

The parties separated after a 17-year marriage.

Both parties operated cash-based businesses and failed to declare significant income to the CRA.

The court imputed incomes to both parties for the purpose of calculating child and spousal support, rejecting the husband's expert report due to his failure to disclose the cash business.

The court also determined the value of various contested assets and date of marriage deductions for the equalization of net family property, finding the husband's uncorroborated evidence unreliable.

The plaintiff, a 70-year-old machine operator with 20 years of service, was dismissed without cause and brought a motion for summary judgment for wrongful dismissal damages.

The defendant employer brought a cross-motion to stay the summary judgment motion until it could conduct an examination for discovery.

The court dismissed the defendant's motion, finding it had failed to put its best foot forward or present any contradictory evidence.

Applying the Bardal factors, the court granted summary judgment to the plaintiff, fixing the reasonable notice period at 22 months and awarding $69,139.03 in damages.

The defendant bank brought a refusals motion seeking to compel answers to questions asked on the cross‑examination of an affiant concerning documents reviewed by counsel when drafting a claim.

The information sought related to whether the plaintiff had used documents produced in another action in alleged breach of the deemed undertaking rule under Rule 30.1 of the Rules of Civil Procedure.

The court held that the requested information constituted solicitor‑client communications and was therefore subject to near‑absolute privilege.

The “future crime and fraud” exception to solicitor‑client privilege did not apply because an alleged breach of the deemed undertaking rule did not approach the level of criminal or fraudulent conduct required to displace privilege.

The motion to compel answers was dismissed.

In an estates dispute between brothers following their mother’s death, the applicant obtained an order without notice requiring the respondent to accept or refuse appointment as estate trustee under an earlier will.

The court found that the order had been obtained without notice and with material non-disclosure, including the existence of a contested passing of accounts application and a later will.

Because the judge who granted the initial order had not been informed of these material facts, the court held that the order could not stand.

The without-notice order was therefore set aside and costs were awarded against the applicant.

The plaintiff brought a motion for civil contempt against the respondent for his participation as a spokesperson in a railway blockade, in defiance of an injunction.

The respondent admitted knowledge of the order and his continued participation, leading to a finding of contempt.

In determining the appropriate sanction, the court declined to issue a continuing restraining order, noting the respondent had helped dismantle the blockade.

Applying principles for aboriginal contemnors and costs rules, the court ordered the respondent to pay costs of $16,584.87 to the plaintiff.

The accused pleaded guilty to importing 601 grams of cocaine into Canada after travelling to Jamaica and returning with the controlled substance for payment.

The sentencing judge considered the seriousness of cocaine importation and the guidance from appellate jurisprudence establishing significant custodial ranges for such offences.

Mitigating factors included the accused’s youth, lack of prior criminal record, early guilty plea, limited pre-trial custody, strong family support, and positive rehabilitation prospects documented in a detailed pre-sentence report.

The court accepted a joint submission by counsel as appropriate within the applicable sentencing range.

A custodial sentence of two years was imposed together with mandatory firearms prohibitions and a DNA order.

Following a jury trial in a personal injury action where the defendants were found not liable, the defendants sought costs of the proceeding.

The plaintiffs argued that costs should be reduced due to impecuniosity, excessive preparation time, inclusion of disbursements for unused experts and surveillance, and the derivative nature of a Family Law Act claim.

The court held that disbursements for unused experts may still be recoverable if reasonably incurred in preparation for trial, but reduced the defendants’ claim by excluding preparation related to two aborted trials.

The court also considered the plaintiff’s financial hardship as a discretionary factor.

Balancing Rule 57.01 considerations, the court awarded reduced costs to the defendants.