SCJ 2014

An association representing justices of the peace brought an application seeking a declaration that existing pension arrangements—under which justices of the peace participate in the provincial public servants’ pension plan—violate the constitutional principle of judicial independence.

The respondent argued that the application should not proceed because the issue was currently before the Justice of the Peace Remuneration Commission.

The court held that although it possessed inherent jurisdiction to determine constitutional questions, courts should ordinarily refrain from intervening before specialized administrative processes are completed.

Given that the Commission was actively considering the same issue and could provide an informed report, the court found the application premature.

The application was therefore adjourned pending the Commission’s report.

The accused applied under ss. 8 and 24(2) of the Charter to quash a search warrant executed at a residence where police discovered a large marijuana grow operation.

The application alleged that the affiant mischaracterized hydro‑consumption data, failed to provide full and frank disclosure in the Information to Obtain, and lacked reasonable and probable grounds.

The court conducted a Garofoli review and held that the ITO, even after minor excisions, contained sufficient evidence including hydro‑consumption patterns, repeated odour detections of marijuana, and surveillance observations distinguishing the target residence from neighbouring properties.

The warrant was therefore validly issued.

Alternatively, even if a breach had occurred, the evidence would have been admitted under s. 24(2) because the police acted in good faith and the evidence was reliable and central to the prosecution.

The respondent father brought a motion seeking various relief after the applicant mother unilaterally cancelled their daughter's First Communion and denied access.

The mother argued that the Minutes of Settlement were not enforceable because a formal order had not been taken out.

The court rejected this argument, finding the mother's conduct shocking and indicative of a systematic attempt to marginalize the father.

The court granted the father's requests to reschedule the Communion, ordered police enforcement for access, issued a non-disparagement order, permitted the father to provide the children with cell phones, ordered the mother to reimburse the father for the cancelled event's costs, and granted make-up access.

The applicant sought a stay of a driving prohibition imposed following a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 ml.

The stay was sought pending appeal, which alleged the trial judge erred in finding the breath samples were taken “as soon as practicable” and relied on facts not in evidence.

The court applied the established test for a stay pending appeal, requiring the applicant to show the appeal was not frivolous, that continuation of the prohibition was not necessary in the public interest, and that granting the stay would not undermine public confidence in the administration of justice.

The court found the appeal frivolous, noting the timeline showed police acted promptly and the first breath sample was taken well within the two‑hour limit contemplated by the Criminal Code.

The applicant also failed to demonstrate hardship or that the public interest favored suspending the prohibition.

The application for a stay was dismissed.

The applicant sought declaratory relief that it was exempt from a parkland levy imposed as a condition of obtaining a building permit for redevelopment of a restaurant on municipal lands.

The municipality argued the application improperly circumvented the statutory appeal mechanism under s. 25(1) of the Building Code Act, 1992, which provides a 20‑day appeal period from decisions of a chief building official.

The court held that the proper procedure was a statutory appeal, not an application for declaratory relief, and that the applicant had failed to pursue the appeal within the prescribed timeframe.

The court declined to convert the application into a statutory appeal or extend the appeal deadline, finding the delay unreasonable and prejudicial to the municipality.

The application was dismissed and costs were awarded to the respondent.

The plaintiff was injured in a motor vehicle collision when the defendant driver failed to yield the right-of-way at an intersection.

The plaintiff suffered a mild traumatic brain injury, depression, and chronic pain, which substantially interfered with her employment and daily life.

The court found the defendant driver fully liable and his employer vicariously liable.

The court held that the plaintiff's injuries met the statutory threshold for non-pecuniary damages and awarded $100,000 in general damages, $50,000 for loss of competitive advantage, and $45,000 in Family Law Act damages.

The court also discharged the jury due to inflammatory opening statements by defence counsel.

In estate litigation concerning whether $1.3 million transferred by a deceased to the defendant was a loan or gift, the defendants sought costs related to steps taken to remove the plaintiffs’ original counsel due to an alleged conflict of interest arising from counsel’s participation in discussions with the deceased before death.

The court held that the defendant was entitled to costs because the plaintiffs ultimately conceded the removal of counsel after significant preparation had already been undertaken.

However, the court found the circumstances did not justify substantial indemnity costs, emphasizing that no party’s conduct was reprehensible and that the motion itself would not have been complex.

Costs were therefore awarded on a partial indemnity basis in the amount of $15,000 inclusive of disbursements and taxes.

The court also directed that the defendant’s request for leave to bring a late dependant’s relief claim under the Succession Law Reform Act should be determined at trial rather than through a separate pretrial motion.

The defendants brought a motion for a declaration that an ethical screen implemented by their counsel of record was sufficient to prevent the disclosure of the plaintiff's confidential information after a lawyer who previously represented the plaintiff joined the firm.

The plaintiff brought a cross-motion to disqualify the firm due to a conflict of interest.

The court applied the test from MacDonald Estate v. Martin and considered the Law Society's guidelines for ethical screens.

Finding that the firm had implemented timely and comprehensive institutional measures, the court concluded that a reasonably informed person would be satisfied that no use of confidential information would occur.

The defendants' motion was granted and the plaintiff's cross-motion was dismissed.

The plaintiff, assignee of a debt owed by the defendants under minutes of settlement, sued for the outstanding principal and accumulated interest.

The defendants acknowledged the principal debt but sought equitable relief from the accumulated interest under section 98 of the Courts of Justice Act, arguing they withheld payment because the plaintiff failed to provide proper notice of the assignment.

The court found that the defendants' conduct in withholding payment was not reasonable and that the contractual interest rate did not constitute a penalty or forfeiture.

Judgment was granted in favour of the plaintiff for the principal and accumulated interest.

Following dismissal of a motion by four donor‑distributors seeking to opt back into a class proceeding after previously opting out, the court determined the appropriate costs award.

The responding party sought $28,893 on a partial indemnity basis, while the unsuccessful moving parties argued that costs should not exceed $2,500.

The court found that the motion to opt back in was misguided and largely predictable in outcome based on existing jurisprudence.

Considering the factors in Rule 57.01(1) of the Rules of Civil Procedure and the Court of Appeal’s guidance that costs must be fair and reasonable to the unsuccessful party, the court fixed costs at $10,000 all‑inclusive payable by the unsuccessful moving parties.

Sentencing decision following guilty pleas to possession of a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code and possession of a firearm while prohibited under s. 117.01.

Police executing a search warrant discovered a loaded .40 calibre handgun hidden in the accused’s residence while he was subject to a weapons prohibition order.

The court emphasized the serious public safety risks posed by illegal handgun possession and the need for denunciation and deterrence.

After granting enhanced credit for pre‑sentence custody under s. 719(3.1), the court imposed a global sentence reflecting three years for the firearm offence and a consecutive six months for breach of the prohibition order.

Probation and ancillary orders, including a lifetime weapons prohibition and DNA order, were also imposed.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action after termination without cause following 31 years of service.

The court applied the principles in Hryniak v. Mauldin and found no genuine issue requiring a trial.

Considering the Bardal factors, including the employee’s age, lengthy service, supervisory role, and proximity to eligibility for an unreduced pension, the court determined that damages should effectively bridge the employee to his pension entitlement rather than apply a full 22‑month notice period.

The court rejected the employer’s mitigation arguments, finding that the employee’s extensive job search and acceptance of lower-paying retail work satisfied the duty to mitigate.

Judgment was granted for salary to the pension qualification date, compensation for lost pension value, and the contractual retirement allowance.

In a class proceeding concerning a college program that failed to deliver promised professional designations, the court issued an addendum addressing the residual market value of the diploma received by class members.

The court reconsidered supplementary submissions regarding whether the diploma had measurable value independent of the promised designations.

While the plaintiffs argued the diploma had little or no value and the defendant contended it retained full value, the court determined that the diploma had limited residual value based on evidence about employment outcomes, educational background of students, and survey data.

The court concluded that the residual value of the diploma was approximately 15% of the direct costs incurred by class members.

Aggregate damages were therefore fixed at 85% of the direct costs for students who completed the program.

The applicant sought to terminate his spousal support obligations under a separation agreement following his voluntary early retirement and subsequent reduction in income.

The court found that the applicant's retirement was a reasonable decision and not made in bad faith to avoid support obligations, constituting a material change in circumstances.

To prevent financial hardship to the respondent and promote self-sufficiency, the court ordered a transitional reduction of spousal support to $750 per month for one year, followed by a reduction to $1 annually thereafter.

The applicant sought sole custody, child support, and an equalization payment following a 15-year marriage.

The respondent, who had not paid child support since separation and was found in contempt of court for selling a property in violation of a court order, sought sole or joint custody of one child and spousal support.

The court granted the applicant sole custody, ordered retroactive and prospective child support, and calculated the equalization payment and other reimbursements owed by the respondent.

To satisfy the total amount owed of $441,378.68, the court ordered the respondent's property, the transfer of which was set aside in a companion decision, to be vested in the applicant.

The applicant brought a summary judgment motion to set aside the transfer of a property by her former husband to three tenants, alleging it was a fraudulent conveyance intended to defeat her family law claims.

The transfer occurred shortly before trial and in violation of a court order prohibiting the sale.

The court found numerous 'badges of fraud' and rejected the purchasers' claims that they bought the property in good faith without notice.

The court granted summary judgment, setting aside the transfer and vesting the property in the applicant.

The accused brought a pre‑trial application seeking leave to cross‑examine the affiant and sub‑affiant on an Information to Obtain supporting a search warrant.

The defence alleged that the ITO relied improperly on confidential informants, lacked sufficient detail regarding their reliability, and contained misleading or inflammatory statements.

The court applied the governing principles from Garofoli and Pires concerning leave to cross‑examine affiants.

It held that the applicant failed to establish a basis that the proposed cross‑examination would likely elicit evidence undermining the existence of reasonable and probable grounds for the warrant.

Leave to cross‑examine was therefore denied.

Following the dismissal of the defendant’s motion for summary judgment, the court determined the appropriate costs award.

The dispute involved a commercial claim for damages arising from an allegedly faulty communications system supplied by the defendant, with the motion seeking to limit the plaintiff’s potential recovery through contractual provisions.

The defendant argued that costs should be reduced due to the plaintiff’s non-compliance with a scheduling order and alleged duplication of legal work between counsel and instructing solicitor.

The court held that no prejudice arose from the procedural irregularities and rejected the duplication argument, emphasizing the value of briefing specialized advocacy counsel.

Partial indemnity costs of the motion were awarded to the plaintiff in full as claimed.

Multiple procedural motions arose in two related aviation negligence actions seeking recovery of insured losses after aircraft hydroplaned and left runways at Ottawa International Airport.

The plaintiffs sought coordinated case management, common discoveries and production, and trial management orders, while the defendants challenged the adequacy of the plaintiffs’ affidavit of documents and disputes arose regarding discovery scheduling.

The court ordered that the actions proceed under joint case management with common discoveries and productions on overlapping issues and removed the deemed undertaking as between the two proceedings.

Leave was granted for extended examinations for discovery due to the limited availability of a key pilot witness.

The court directed further review of the plaintiffs’ affidavit of documents and reserved remaining issues, including sanctions and costs, for later determination.

The applicant sought habeas corpus relief arguing that his custodial sentence had been fully satisfied due to an alleged ambiguity in the Warrant of Committal regarding whether one count was consecutive or concurrent.

Correctional Service Canada initially interpreted the sentence as four years but later corrected the calculation to six years after clarification from the sentencing judge.

The court held that the sentencing reasons clearly imposed a six‑year custodial sentence after credit for pre‑sentence custody and that the amended warrant merely clarified the intended sentence.

The correction did not amount to an impermissible reconsideration of sentence and did not violate the applicant’s Charter rights.

The application for habeas corpus was therefore dismissed.