SCJ 2015

On a summary conviction appeal from a conviction for failing to provide a breath sample, the court held that the trial judge erred in the s. 10(b) Charter analysis.

The trial judge improperly treated the appellant's response of 'yeah, yeah' as an implicit waiver of the right to counsel without the clear and unequivocal waiver required by Prosper, and failed to apply the proper forthwith analysis under Quansah to the roadside screening demand.

The court further held that the resulting statements should be excluded under s. 24(2) applying Grant, because the police conduct seriously infringed a fundamental right.

The conviction was set aside and a new trial ordered.

The accused applied on a bail review to remove a no-contact condition with the complainant spouse following allegations of domestic assault.

The complainant expressed a desire to reconcile and resume cohabitation, and both parties had begun counselling.

The court considered the risk of interference with the administration of justice and the need to protect the complainant under s. 515 of the Criminal Code.

While the court found no evidence of manipulation or interference with witnesses, it remained concerned about potential safety risks given the seriousness of the alleged assault.

The court declined to fully remove the no-contact condition but permitted contact during joint counselling sessions as a risk‑management measure.

The plaintiff moved for relief from the deemed undertaking rule to permit use of discovery evidence outside the civil proceedings, both to make a securities-regulatory complaint against one defendant and to report alleged perjury by another defendant to police and Crown counsel.

Applying the exceptional-circumstances and superior-public-interest framework from Juman v. Doucette, the court held that relief from the undertaking requires a sufficient evidentiary record, including the relevant documents or transcripts, to support at least a prima facie case.

The evidence relating to alleged securities violations was speculative and unsupported by the actual records said to substantiate the misconduct.

The evidence relating to alleged perjury consisted of improper affidavit assertions without the underlying transcripts or documentary contradictions.

The motion was dismissed in its entirety.

The media applicants brought an application for a declaration that the police practice of impersonating journalists for criminal investigation and surveillance of public protests violates s. 2(b) of the Charter.

The court found no evidence that plainclothes officers engaging in surveillance held themselves out as journalists.

The court held that the evidentiary record did not support a finding that the practice of plainclothes surveillance in the presence of media had a chilling effect on news gathering.

The application was dismissed.

The defendant casino operator moved under rule 21.01 to strike a claim brought by estate plaintiffs whose funds had been fraudulently obtained and then lost through gambling.

Applying the Anns/Cooper framework, the court held the pleadings did not disclose sufficient proximity to establish a duty of care to problem gamblers, and therefore no derivative duty to the plaintiffs.

The unjust enrichment, conversion, and knowing receipt claims were also untenable because the defendant had valid gambling contracts with the gamblers, was a bona fide purchaser without notice, and had no obligation to investigate the source of patrons' funds.

The action was dismissed without leave to amend.

Competing summary judgment motions arose from a debt restructuring in which the moving parties released a collateral mortgage and personal guarantees in exchange, in part, for two off-plan Dubai condominium units.

The court held that the amended agreement, read together with the incorporated reservation forms and Dubai law evidence, required that the purchase price for the units be paid into escrow.

The responding parties used closing documents that falsely represented the escrow accounts had been funded when no such funds existed, thereby inducing the release of valuable Canadian security.

Applying the summary judgment framework and the test for fraudulent misrepresentation, the court found no genuine issue requiring trial and granted judgment to the moving parties.

The court also ordered substantial indemnity costs, with further submissions on interest and costs quantum.

On a Small Claims Court appeal, the appellants challenged dismissal of their claim concerning municipal water and wastewater base service charges after they removed several water meters from a mixed-use building.

The court upheld the deputy judge's conclusion that the claim was discovered by January 27, 2011 and was therefore statute-barred under the two-year limitation period.

The court also upheld the municipality's interpretation of its by-law as authorizing both consumption-based charges and a base monthly service fee on a per-unit basis.

However, the appeal from the costs award was allowed because the additional punitive component beyond the 30% Small Claims Court cap was unsupported.

The total costs award was varied downward to $10,040.76.

The plaintiff sought a declaration of ownership interest in a house legally owned by his former mother-in-law, arguing either an express agreement that title would transfer after the mortgage was paid or, alternatively, proprietary estoppel.

The court rejected the plaintiff's account of any promise to gift the down payment or transfer the property, preferring the evidence that the arrangement was a rental investment intended to provide favourable housing to family members.

Applying the elements of proprietary estoppel, the court found no inducement or encouragement by the owner, insufficient proof of detriment in light of below-market rent and other countervailing benefits, and no unconscionable conduct.

The action was dismissed, the parties were declared to stand in a landlord-tenant relationship, and judgment for unpaid rent was granted to the defendant.

The accused applied for a stay of proceedings arising from a fatal wrong-way collision, arguing that the negligent loss of his hospital blood sample prevented him from testing for additional drugs and impaired full answer and defence.

The court held that the Centre of Forensic Sciences, while storing the sample on behalf of police, had a duty to preserve it and breached that duty through unacceptable negligence when the sample was improperly sealed and leaked during shipment for independent testing.

Applying the lost-evidence framework, the court found a breach of s. 7 of the Charter.

However, the court held that the missing testing results would only have had a realistic possibility of assisting the defence and were not necessary to advance the involuntary intoxication theory.

A stay was therefore refused.

On a summary conviction appeal from a conviction for refusing to comply with a roadside breath demand, the appellant argued for the first time that the arresting officer misstated the legal consequences of failing the approved screening device and that he therefore was not obliged to comply, or alternatively had a reasonable excuse under s. 254(5) of the Criminal Code.

The appeal court held that appellate courts generally do not entertain arguments not raised at trial, absent rare circumstances where the issue can be fully, effectively and fairly addressed on the existing record.

Here, the trial record contained no evidentiary or legal foundation for the new ground.

The appeal was dismissed.

The court sentenced the accused following jury convictions for robbery with a firearm, possession of a loaded prohibited firearm, and possession of cocaine, with several overlapping firearm and ammunition counts treated under Kienapple.

Applying the principles of denunciation, deterrence, proportionality, parity, and totality, the court held that the five-year mandatory minimum for robbery with a firearm remained fit notwithstanding aggravating factors including a planned daytime robbery in a residential building and public-safety risks from a loaded firearm.

Mitigating considerations included the accused's youth, lack of criminal record, compliance with strict bail, and caregiving responsibilities for his father.

Concurrent sentences were imposed on the remaining counts, together with a ten-year weapons prohibition and a DNA order.

The court convened a clarification hearing concerning an earlier family law endorsement dealing with parenting time and interim support.

The issues were the detailed timing and logistics of two weekly periods of unsupervised access, the holiday and summer schedule, and the duration of the suspension of interim child support and s. 7 expenses.

The court replaced portions of the earlier endorsement with detailed terms governing weekday, weekend, summer, birthday, Thanksgiving, and Christmas access.

The suspension of support and s. 7 payments was limited to April 1, 2015 through June 30, 2015, after which payments were to resume, without disturbing prior adjustment provisions for 2014.

No costs were ordered.

Following settlement of a motion to enforce minutes of settlement in a family-related civil dispute, the court determined costs and priority issues concerning trust funds held by a lawyer.

The court held the motion should not have been necessary, criticizing both the plaintiff's obstruction and former counsel's failure to release an order discharging certificates of pending litigation.

Applying the fair and reasonable costs approach under s. 131 of the Courts of Justice Act and Rule 57.01, the court fixed the defendants' costs at $55,000 on a partial indemnity basis.

The court also subordinated the former lawyers' charging orders to the defendants' costs claim and directed payment out of the plaintiff's share of trust funds.

Sentencing decision following convictions on both an adult indictment and a Youth Criminal Justice Act indictment for numerous historical sexual offences against children.

The court applied the Kienapple principle to stay duplicative counts, then imposed a youth sentence focused on accountability, rehabilitation, and reintegration under s. 38 of the Youth Criminal Justice Act, while emphasizing denunciation and deterrence on the adult indictment because the offences involved a child victim and breach of trust.

The court treated the absence of intercourse and threats, the offender's lack of record, and collateral consequences as mitigating factors, but found the repeated sexual assaults and resulting harm required substantial custodial terms.

A 12-month youth custodial sentence plus 6 months' supervision was ordered consecutive to a 4-year adult penitentiary sentence, along with multiple ancillary orders.

The appellant appealed a summary conviction for excess blood alcohol, arguing that the trial judge erred in upholding the arresting officer’s grounds, rejecting a right-to-counsel breach, and finding the breath tests were taken as soon as practicable.

The court held that the officer had reasonable and probable grounds based on the driving conduct and multiple indicia of impairment, notwithstanding some inconsistencies with later video evidence.

The court further held that the appellant was afforded a reasonable opportunity to consult duty counsel in private and adduced no evidence that the video presence impaired that consultation.

Finally, the court found the breath samples, taken within 65 and 88 minutes of driving, were obtained as soon as practicable in the circumstances.

The appeal was dismissed and the stay of the driving prohibition was vacated.

The accused, charged with multiple drug and firearms offences, brought a motion to invalidate a search warrant and exclude evidence under sections 8 and 24(2) of the Charter.

The accused argued that the Information to Obtain (ITO) contained material errors and misleading statements, and that a dynamic, unannounced entry was unjustified.

The court found that despite minor errors, the ITO contained sufficient reliable evidence to justify the issuance of the warrant, including undercover drug purchases and observations linking the accused to the searched apartment.

The court concluded there was no section 8 Charter breach, and alternatively, that the evidence should not be excluded under section 24(2) as the police acted in good faith and the evidence was highly reliable.

The application was dismissed.

This costs endorsement followed a contested motion in an estate administration dispute concerning access to trust fund accounting records and other relief.

The moving party succeeded on only one disclosure-related issue and failed on several others, while the responding estate trustee opposed broader relief.

Applying the Rule 57.01 costs factors and exercising broad discretion, the court declined to order personal costs against the respondent.

Instead, it ordered that each side recover $5,000 from the trust fund and otherwise bear its own costs.

In this costs decision following an urgent injunction motion and a successful application, the moving party sought partial indemnity costs for both proceedings.

The court held that costs followed the event and accepted that the moving party was substantially successful on the injunction motion and entirely successful on the application.

Applying the proportionality and fairness principles under rule 57.01 and s. 131 of the Courts of Justice Act, the court reduced the amounts claimed as excessive, particularly in light of duplication in the later application materials.

Costs were fixed at $15,000 for the injunction motion and $10,000 for the application, for a total award of $25,000.

On a written judicial screening application under the former faint hope regime, the applicant sought leave to proceed to a jury for a reduction in parole ineligibility following a first degree murder conviction.

The court applied s. 745.61 of the Criminal Code and considered the applicant’s character, institutional conduct, the nature of the offence, victim information, and other relevant circumstances.

Despite the highly aggravating facts of a calculated murder-for-insurance plot and the applicant’s initial denial and flight from Canada, the court found the applicant’s institutional record exemplary, his programming and insight substantial, and his current risk to public safety low.

The court held that the application had a substantial likelihood of success and directed that a jury be empanelled.

This was a costs and terms endorsement following a partially successful duty to defend application.

The applicants obtained a duty to defend against three insurer respondents but were unsuccessful against the service provider respondents.

The court awarded costs to the applicants against each insurer respondent, awarded partial indemnity costs to the successful service provider respondents in reduced amounts where appropriate, and declined to make a Sanderson order or determine disputed supplementary payments coverage issues within the costs proceeding.

The court also ordered each insurer respondent to pay a share of defence costs already incurred in the underlying action, excluding adverse costs awards, and imposed terms governing the appointment and reporting obligations of independent counsel because of conflicts of interest.