SCJ 2014

Following an earlier endorsement granting interlocutory injunctions concerning non‑solicitation and confidentiality, the court addressed the issue of costs of the motion.

The parties agreed on the quantum of costs at $105,000 all inclusive.

The court fixed the quantum accordingly but declined to determine liability for those costs at this stage.

Liability was reserved for the judge who will determine the final disposition of the action, to avoid prejudging potential outcomes or factual developments.

The accused applied under s. 462.34(4)(c)(ii) of the Criminal Code for the release of seized funds to pay legal expenses in defending multiple drug and property-related charges.

The Crown conceded the accused owned the seized funds and that no other person had a lawful interest in them but argued the accused had “other means” to fund his defence because he had been granted legal aid.

The court held that the existence of a legal aid certificate constitutes “means” available within the meaning of s. 462.34(4), unless the accused demonstrates that the level of funding imperils the right to a fair trial.

Finding no evidentiary basis that the legal aid funding created such a risk, the court concluded the statutory preconditions were not met.

The application for restoration of seized funds for legal expenses was dismissed.

The accused was charged with possession of MDMA, ketamine, and methamphetamine for the purpose of trafficking and with producing those substances under the Controlled Drugs and Substances Act.

Police discovered a large-scale clandestine drug laboratory inside a residence containing approximately 150 kilograms of finished drugs and extensive manufacturing equipment in plain view.

The accused was found inside the residence and his personal documents were located there.

The court held that the pervasive presence of drugs, odour, and equipment established the accused’s knowledge of the operation and that his presence and conduct supported an inference of control sufficient for constructive possession for the purpose of trafficking.

However, the Crown failed to prove beyond a reasonable doubt that the accused participated in the production process.

The applicant sought exclusion of evidence discovered after police entered a residence without a warrant and arrested him in connection with drug production and trafficking offences.

The issue was whether the applicant had a reasonable expectation of privacy in the dwelling sufficient to challenge the search under s. 8 of the Charter.

Applying the factors from Edwards and related authorities, the court examined the applicant’s connection to the premises.

The evidence established only that the applicant was present in the house and had left a bag of personal effects there.

The court concluded there was no evidence of ownership, control, historical use, or a subjective expectation of privacy, and therefore the applicant lacked standing to challenge the search.

The defendants brought a motion seeking to disqualify the plaintiff’s counsel on the basis that counsel had allegedly created a lawyer‑client relationship with a self‑represented defendant during settlement communications and obtained confidential information.

The court reviewed a series of emails and a telephone discussion initiated by the defendant proposing settlement and requesting assurances that the discussion would be “without prejudice” and off the record.

The court held that no solicitor‑client relationship or analogous relationship arose because the defendant knew counsel represented the opposing party and voluntarily initiated the communications.

The court further found that no confidential information was imparted and rejected allegations that counsel attempted to coach or solicit false evidence.

The motion was dismissed and the defendants were ordered to pay substantial indemnity costs.

The applicant, a former member of the Labourers' Union, sought an order permitting him to make claims against the union's Benefit Trust or a return of his Dollar Bank Balance after being expelled for violating a dual union policy.

He also claimed the trustees breached their fiduciary duties.

The court dismissed the application, finding that the applicant ceased to be a beneficiary upon expulsion, had no right to a distribution of the notional dollar bank account, and that the trustees did not breach their fiduciary duties by adopting or enforcing the dual union policy.

Following a motion in which the defendant successfully set aside a default judgment and obtained leave to file a statement of defence, the court determined the appropriate costs order.

The successful moving party sought costs of the motion, while the plaintiff sought higher costs relating both to the motion and the earlier default hearing.

The court found both counsel’s time and rates reasonable but rejected the plaintiff’s attempt to recover costs for earlier proceedings of which the defendant had no knowledge.

Considering the relevant factors, the court fixed costs in favour of the successful moving party, payable only if it ultimately succeeded at trial.

The defendant brought a motion to amend its third-party claim to substitute a sole proprietorship operating as a janitorial service in place of a corporation incorrectly named as a third party.

The court held that the proposed amendment was not merely a correction of a misnomer but the addition of a new legal entity.

The moving party had been put on notice of the error years earlier but failed to act diligently before the limitation period expired.

The proposed sole proprietor had since died, depriving the defence of potential evidence and causing prejudice that could not be compensated by costs.

The court exercised its discretion under the Rules of Civil Procedure to refuse the amendment.

The Crown sought to qualify a police detective as an expert witness on drug trafficking indicators in a prosecution for possession of crack cocaine for the purpose of trafficking.

The proposed opinion evidence addressed crack cocaine consumption patterns, typical quantities held by users, and the absence of consumption tools as indicative of trafficking.

The court applied the Mohan criteria and subsequent guidance from appellate jurisprudence, including Sekhon, emphasizing the trial judge’s gatekeeping role regarding expert evidence.

The court held the proposed opinions were largely anecdotal, insufficiently grounded in specialized expertise, and not necessary to assist the trier of fact.

Given the modest quantity of drugs seized and the proximity of the opinion to the ultimate issue of intent, the prejudicial effect outweighed the probative value and the evidence was excluded.

Supplementary costs endorsement correcting disbursement and total costs figures in a prior costs decision.

The defendant advised that an expert invoice previously referenced should be replaced with a lower amount.

The court amended the disbursement total and the overall costs award accordingly to reflect the corrected invoice amount.

The decision adjusts the numerical totals in the earlier July 15, 2014 costs endorsement without altering the underlying entitlement to costs.

The accused was sentenced following convictions for possession of child pornography and accessing child pornography under ss. 163.1(4)(a), 163.1(4)(b), and 163.1(4.1) of the Criminal Code.

Police discovered child pornography on multiple electronic devices after a member of the public observed the accused viewing images of young girls on a laptop in a public library.

The collection included over 160 images and several videos, including a number of hardcore depictions involving sexual acts with young children.

The court emphasized denunciation and deterrence as primary sentencing objectives for offences involving the abuse and exploitation of children.

The accused was sentenced to eight months’ incarceration less one month credit for pre‑trial custody, followed by two years’ probation and several ancillary orders including DNA sampling, sex offender registration for life, forfeiture of digital devices, and a five‑year prohibition order under s. 161.

The plaintiff sought leave to issue a certificate of pending litigation (CPL) in relation to a commercial agreement of purchase and sale for a medical office property.

The plaintiff alleged breach of warranty regarding lease terms and sought specific performance with an abatement of the purchase price.

The court found there was a triable issue concerning breach of the agreement and that the plaintiff had a plausible claim to an interest in land.

However, applying the principles from Semelhago and Southcott, the court concluded that the property was acquired as a commercial investment and that damages would be an adequate remedy.

Considering equitable factors and the balance of convenience, the court declined to grant leave to issue the CPL.

The sole officer, director, and shareholder of a corporate plaintiff sought leave under Rule 51.01(2) of the Rules of Civil Procedure to represent the corporation after its solicitor was removed from the record.

The defendants opposed the request, arguing that the corporation’s financial ability to retain counsel and the proposed representative’s litigation capability should be considered.

The court reviewed conflicting authorities on whether a closely held corporation’s financial capacity to hire counsel is relevant.

Applying Lamond v. Smith, the court held that where the corporation is closely held and the moving party is the sole director and shareholder, the corporation’s financial position is not determinative.

Finding the moving party competent to articulate the corporation’s position and having authority to bind it, the court granted leave to represent the corporate plaintiff.

The accused, facing numerous serious charges including conspiracy to commit murder, drug trafficking, and firearms offences arising from a gang investigation, applied for judicial interim release.

The court found the proposed release plan and sureties inadequate to address the secondary ground of public safety.

The court also found detention justified on the tertiary ground to maintain confidence in the administration of justice given the strength of the Crown's case and the gravity of the offences.

The application for bail was dismissed.

The accused applied under s. 8 and s. 24(2) of the Charter to exclude drugs, cash, ammunition, and a taser seized following the execution of search warrants and a warrantless search of his person.

The defence challenged the validity of the warrants, alleging deficiencies in the Information to Obtain and reliance on fabricated police evidence.

The court found that a key surveillance officer fabricated observations of a purported hand‑to‑hand drug transaction that had been relied upon to corroborate confidential informant information.

After excising misleading and unsupported information from the warrant materials, the court concluded the remaining evidence failed to establish reasonable and probable grounds under the Debot framework.

The warrants were therefore invalid, the searches unlawful, and the evidence excluded under s. 24(2) due to serious and deliberate police misconduct.

The plaintiff employer brought a motion under Rule 49.09(a) of the Rules of Civil Procedure seeking judgment enforcing a settlement allegedly reached through email exchanges with a former employee.

The dispute concerned whether the parties had agreed to a settlement and, if so, the scope of an IT consultant’s work to delete and certify the destruction of confidential electronic information taken by the employee prior to departure.

The court held that the parties had reached a binding settlement through their email correspondence, despite subsequent disagreement when counsel attempted to draft formal minutes of settlement.

Interpreting the emails objectively, the court concluded the parties had agreed to the employee’s proposed process for wiping devices, but using the employer’s chosen IT consultant at the employee’s cost.

The employer’s later insistence on a broader “full sweep” did not amount to repudiation of the settlement.

Judgment was granted enforcing the settlement on the terms determined by the court.

The plaintiff brought a motion to enforce minutes of settlement reached in a wrongful dismissal action.

After signing the settlement, the defendant discovered evidence suggesting the plaintiff had performed work for competitors during employment using company resources and had attempted to delete related computer files.

The defendant repudiated the settlement and commenced its own action for damages.

The court held that although a settlement existed, it should not be enforced where enforcement would create a real risk of clear injustice.

Given newly discovered evidence of alleged misconduct that was not reasonably discoverable prior to settlement, the motion to enforce the settlement was dismissed.

The offender was convicted by a jury of conspiracy to export 208,000 ecstasy pills to the United States, possession of ecstasy for the purpose of exporting, and possession of a weapon for a dangerous purpose.

The offender acted as a delivery person in an undercover operation directed by a co-conspirator.

The court sentenced the offender to 5 years for the drug offences and 6 months consecutive for the weapon offence, less 6 months credit for strict bail compliance, resulting in a net sentence of 5 years.

Following an earlier decision granting an injunction restraining a landlord from terminating a commercial lease without cause, the successful tenant sought elevated costs on a full or substantial indemnity basis, alleging the landlord acted in bad faith.

The court held that the prior reference to “bad faith” concerned contractual conduct and did not amount to litigation misconduct warranting punitive costs.

Finding no unusual circumstances to depart from the ordinary rule that costs follow the event on a partial indemnity basis, the court declined to increase the costs award.

Because the applicant’s submissions seeking punitive costs lacked reasonable basis and caused unnecessary costs proceedings, the court reduced the amount payable by awarding the respondent costs of the costs process.

The plaintiffs purchased lots in an industrial subdivision and sued the municipality for negligent misrepresentation, alleging they relied on a letter from the building director indicating building permits would be available.

The plaintiffs claimed the letter failed to disclose that the Ministry of the Environment required a section 45 approval before permits could issue.

The Superior Court of Justice dismissed the action, finding that the letter was not misleading and that the plaintiffs failed to read the subdivision agreement, which explicitly stated the requirement for environmental approval.

The court also held that the action was statute-barred as the plaintiffs ought to have discovered the material facts more than six years before commencing the lawsuit.