SCJ 2014

The appellant appealed summary conviction findings under the Fisheries Act arising from a highway washout that deposited debris into fish-bearing waters and damaged fish habitat.

The appellant argued the trial judge erred in rejecting a due diligence defence and in concluding that a highway and culvert constituted a “work or undertaking” under the Act, and further argued that the Kienapple principle should bar convictions on both counts.

The court held that the trial judge made no palpable and overriding error in rejecting the due diligence defence and properly applied the relevant factors.

It further held that maintaining road infrastructure constitutes “carrying on a work or undertaking” for the purposes of s. 35 of the Fisheries Act and that the two offences addressed distinct statutory purposes.

The appeal was dismissed.

An investor that had acquired the rights of a bankrupt Indigenous‑owned technology company sued a software corporation for breach of contract arising from a failed strategic partnership.

The plaintiff alleged the defendant committed to invest $1.5 million and provide technological support but later withdrew, causing the company’s collapse.

The court found a binding agreement was formed through oral approval and a confirming letter, and that the defendant’s internal corporate approval issues did not negate the contract.

Alleged misrepresentations regarding finances, market size, and potential investors were rejected.

Applying a modified valuation based on projected business plans and discounting for risk, the court awarded damages for the lost business opportunity.

Dans un procès criminel pour voies de fait causant des lésions corporelles, la poursuite a demandé l’admission pour la vérité de son contenu d’une déclaration antérieure fournie par un témoin à la police.

Le témoin, présent lors de l’incident allégué, a affirmé au procès ne pas se souvenir des événements ni d’avoir fourni la déclaration.

Le tribunal a appliqué l’exception raisonnée au ouï‑dire et a analysé les critères de nécessité et de fiabilité, en se référant notamment à la jurisprudence de la Cour suprême sur la fiabilité procédurale et substantielle.

Constatant la perte de mémoire du témoin, l’enregistrement vidéo de la déclaration, la possibilité de contre‑interrogatoire et l’existence d’éléments corroborants, la cour a conclu que les critères étaient satisfaits.

La déclaration antérieure a donc été admise pour la vérité de son contenu.

A federal inmate applied for habeas corpus with certiorari in aid challenging an involuntary transfer from a medium security institution to a high security institution following discovery of a sharpened knife in the inmate’s shoe.

The applicant argued the warden’s decision was unreasonable under the standard articulated in Mission Institution v. Khela because a member of the case management team believed the inmate’s explanation that he was unaware of the weapon.

The court held the warden was the statutory decision-maker and that the transfer decision fell within the range of reasonable outcomes based on the safety risks posed by possession of a weapon in a correctional facility.

The existence of a differing opinion among staff did not render the decision unreasonable.

The habeas corpus application was dismissed.

The defendants brought a motion under Rule 56.01(1)(a) of the Rules of Civil Procedure seeking security for costs on the basis that the plaintiff resided outside Ontario and had no assets in the province.

The plaintiff alleged an assault by police officers in Ontario but relied on asserted assets in New York State and reciprocal enforcement legislation to resist the motion.

The court held that the plaintiff failed to provide sufficient objective evidence establishing that the foreign assets were appropriate and sufficient to satisfy a potential costs order.

The court also rejected arguments that financial hardship caused by the alleged assault or the Victims’ Bill of Rights precluded the order.

Balancing the relevant factors, the court exercised its discretion to order security for costs.

The defendants sought dismissal of the plaintiffs’ action under Rule 2.1 of the Rules of Civil Procedure on the basis that the proceeding was frivolous or vexatious.

The action arose from a dispute concerning the plaintiffs’ right to possession of premises being converted into condominiums and included allegations of conspiracy, fraud, abuse of process, malicious prosecution, misfeasance in public office, and interference with economic relations.

Although many claims against governmental actors and legal representatives had previously been dismissed under Rule 21, the remaining allegations concerned commercial torts against the building owner and developer.

The court held that Rule 2.1 is not intended for close calls and should not be used as a short form of summary judgment.

The remaining claims were not plainly devoid of merit and therefore should proceed through the ordinary litigation process.

Following a two‑day family trial addressing equalization, child support, retroactive child support, and s.7 expenses, the court reserved the issue of costs.

The applicant had been substantially successful at trial and sought recovery of her legal costs.

The respondent had failed to produce financial disclosure despite court orders, which contributed to the need for trial.

Considering the success of the applicant and the relatively straightforward issues, the court exercised its discretion to award trial costs to the applicant.

Costs were fixed in the amount of $9,000 inclusive of disbursements and HST.

The appellant appealed a summary conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg contrary to the Criminal Code.

The trial judge admitted breath test results despite finding an initial breach of the accused’s right to counsel, concluding the breach was attenuated and that the accused later clearly waived the right to counsel by stating “you know what? … fuck it”.

The appeal court held that the statement was equivocal and incapable of constituting a clear and unequivocal waiver of the right to counsel.

The court also found that the trial judge misapprehended the accused’s evidence regarding the meaning of the statement.

The conviction was set aside and a new trial ordered.

The applicants sought certiorari to quash their committals for trial following a preliminary inquiry on charges relating to a large cocaine importation scheme.

Police had intercepted a shipping container containing 112 kilograms of cocaine concealed in wooden pallets and conducted a controlled delivery, leading to arrests after the pallets were opened.

The applicants argued there was insufficient evidence of knowledge of the cocaine to permit committal.

Applying the limited weighing standard from R. v. Arcuri, the court held that the circumstantial evidence permitted reasonable inferences of knowledge and participation, including involvement in opening the container and dismantling pallets containing narcotics valued at approximately $4 million.

The court concluded that a properly instructed jury could reasonably infer guilt and that the preliminary inquiry judge did not err in committing the applicants to stand trial.

Following a jury trial in a motor vehicle accident action, the jury awarded damages including general damages, future housekeeping costs, and future care.

The defendant brought a threshold motion under s. 267.5 of the Insurance Act seeking dismissal of the plaintiff’s claim for general damages and certain future care expenses on the basis that the plaintiff had not proven a permanent serious impairment of an important bodily function as required by Ontario Regulation 381/03.

The court held that the trial judge determines the threshold issue independently of the jury’s verdict and is not bound by the jury’s factual findings.

The plaintiff’s expert evidence was rejected as lacking objectivity and failing to comply with the evidentiary requirements of the Regulation.

The court concluded the plaintiff failed to meet the statutory threshold and dismissed the claims for general damages and future medical rehabilitation expenses.

The plaintiffs brought a motion for leave to amend their statement of claim to add the Attorney General of Canada as a defendant in a motor vehicle accident action alleging host liability.

The proposed defendant argued the amendment was barred by the two‑year limitation period under the Limitations Act, 2002.

The court applied the discoverability doctrine and the principles governing motions to add parties under Rule 5.04(2) of the Rules of Civil Procedure.

It found the plaintiffs had provided a reasonable explanation for not discovering the potential liability of the proposed defendant until the examination for discovery of the existing defendant.

Leave to amend was granted with permission for the proposed defendant to plead a limitations defence.

The applicant sought leave under s. 42(4)6 of the Substitute Decisions Act to require an attorney for property to pass her accounts in relation to the finances of an incapable person.

The court applied the test requiring a genuine interest in the incapable person’s welfare and a reasonable basis to believe a court might order the passing of accounts.

The court found serious concerns about the applicant’s relationship to the incapable person and concluded the evidence suggested the application was influenced by the incapable person’s spouse rather than the applicant’s independent concern.

The court also found no evidence of mismanagement, noting the incapable person’s needs were being adequately met and financial decisions were prudent.

Leave to bring the application was refused and substantial indemnity costs were awarded to the respondent.

The City of Greater Sudbury brought an application for declarations that three structures on a property vested in the City due to tax arrears were fixtures forming part of the land.

The respondent, who operated a business on the property, argued the structures were chattels that it was entitled to remove.

The court applied the test for distinguishing chattels and fixtures, finding that the structures were affixed to the land, intended for the beneficial use of the land, and could not be easily dismantled and relocated.

The court declared the structures to be part of the land owned by the City and granted a permanent injunction preventing their removal.

Following a construction lien trial in which the lien claim was declared expired but the plaintiff obtained a modest breach of contract judgment, the court determined issues of prejudgment interest and costs.

The court held that a contractual rate of 2% per month triggered s. 4 of the Interest Act, limiting recoverable interest to 5% per annum because the rate was expressed for a period shorter than a year.

On costs, the court considered Rule 49 settlement offers, proportionality, and the Construction Lien Act provisions governing cost awards.

Although the defendant succeeded on major issues at trial, the plaintiff had limited success and the settlement offers materially affected the analysis.

Weighing all factors, the court awarded the plaintiff partial indemnity costs of $2,000.

Following several family law motions concerning parenting time with a young child, both parties sought full indemnity costs.

The court found that success was divided but that the applicant was successful on the most significant issue—obtaining overnight parenting time.

The respondent had advanced allegations of domestic violence that were unsuccessful, while the applicant succeeded on arguments relating to parental alienation.

The court declined to award full or substantial indemnity costs and instead fixed partial indemnity costs at $4,500 payable by the respondent.

The applicant, a secured creditor, applied to appoint a receiver over the assets of the respondent guarantor following a default on commercial loans.

The respondent cross-applied to lift a stay of proceedings to continue a $100 million damages action against the applicant for alleged breach of a forbearance agreement, and sought to have the proceeds from the sale of the primary debtor's assets paid into court.

The court held that the receivership order did not stay the debtor's action, but refused to order the funds paid into court as the respondent had no proprietary claim to the funds that superseded the applicant's first-ranking security.

The court appointed a receiver over the respondent, finding it just and convenient given the unconditional nature of the guarantee.

The plaintiff brought a Rule 21 motion seeking determination of legal questions concerning entitlement to attendant care benefits under the Statutory Accident Benefits Schedule for Accidents on or after September 1, 2010 (SABS-2010).

The issues were whether expenses for attendant care provided by the plaintiff’s mother and roommate were “incurred” within the meaning of s. 3(7)(e) and whether attendant care services could be provided remotely through electronic communication such as telephone calls, texting, and FaceTime.

The court held that the services provided by the mother and roommate did not satisfy the statutory requirement that the provider be acting in the course of the employment, occupation, or profession in which they would ordinarily have been engaged, because neither sustained an economic loss nor was working in the relevant profession at the time.

However, the court concluded that attendant care services may be provided remotely through electronic means where reasonable and necessary supervision is involved.

At a contested status hearing, the plaintiff was required to show cause why its commercial lease dispute action should not be dismissed for delay under Rule 48.14(13).

The court applied the conjunctive test from Khan, finding the plaintiff provided an acceptable explanation for the delay and that the defendant would suffer no non-compensable prejudice.

The action was allowed to continue, and the registrar was ordered not to dismiss the action without further order of the court.

A long‑term restaurant server brought an action for wrongful dismissal after being terminated following a late arrival for work.

The employer alleged just cause based on chronic lateness, alcoholism, and discourteous behaviour, but did not appear at trial.

The court held the employer failed to prove just cause and that dismissal for a single instance of lateness was disproportionate under the contextual approach established in McKinley v. BC Tel.

Applying the Bardal factors, the court considered the employee’s 29 years of service at the restaurant, age, and limited alternative employment prospects, despite only 11 months of employment with the purchasing corporation.

Reasonable notice was fixed at 15 months, and damages were calculated based on wages and tips forming part of remuneration.

In an appeal from a Small Claims Court judgment concerning the return of a condominium purchase deposit, the respondent brought a motion for leave to adduce fresh evidence consisting of email communications between the appellant and his lawyer.

The emails related to whether a contractual deadline for satisfying a status certificate condition had been extended.

The court held that the communications were previously unavailable due to solicitor-client privilege and became producible only after the appellant waived privilege by attaching them to a separate claim against his lawyer.

The evidence was authentic and relevant to the issues on appeal, particularly the determination of whether a new trial should be ordered.

Leave to admit the emails was granted, but leave to introduce pleadings from the separate action against the lawyer was refused.