SCJ 2015

The offender, a 41-year-old first offender with significant health issues, was found guilty of possession of crack cocaine for the purpose of trafficking and possession of proceeds of crime.

The Crown sought a 15-month custodial sentence, while the defence sought a conditional sentence of the same length.

The court considered the principles of sentencing, including restraint and rehabilitation, and found that the offender posed very little risk of re-offending.

The court imposed a 15-month conditional sentence, followed by one year of probation, along with a firearms prohibition and a DNA order.

The applicant mother brought a motion for child support and section 7 expenses for the parties' three children.

The respondent father brought a cross-motion for spousal support and a contribution from the eldest child towards her post-secondary education.

The court ordered the respondent to pay the Table amount of child support retroactively, along with a proportionate share of section 7 expenses including post-secondary costs, summer camp, and vehicle expenses.

The court also found the respondent entitled to spousal support based on the length of the marriage and his need, ordering the applicant to pay $500 per month.

The defendant brought a motion for security for costs and a stay of previous costs orders made against him.

The plaintiff had previously obtained summary judgment for indemnification regarding an estate administration and intended to withdraw the remaining claims.

The court found that ordering security for costs would have no practical significance, as the only remaining step was the plaintiff's motion to withdraw the claim.

The court also found no reason to stay the previous costs orders.

The defendant's motions were dismissed.

The respondent sought costs following a successful motion regarding child support for a child taking a gap year.

The respondent had served an offer to settle that was more advantageous to the applicant than the final order.

The court accepted the respondent's submissions, applied the costs consequences of Rule 49.10, and awarded the respondent costs fixed at $12,000 on a substantial indemnity basis.

The plaintiff, having succeeded on a summary judgment motion for unpaid consulting fees, sought costs on a substantial indemnity basis due to the defendants' alleged reprehensible conduct and a time-limited offer to settle.

The court found that the defendants' conduct, including evading service and failing to make any settlement offers, was not 'reprehensible' enough to warrant punitive costs.

Furthermore, the plaintiff's time-limited offer did not attract presumptive cost consequences under Rule 49.

Applying the factors in Rule 57.01, the court awarded the plaintiff costs on a partial indemnity basis fixed at $65,000, noting the importance of fostering access to justice and the defendants' failure to provide a costs outline.

The moving party brought a motion to strike a solicitor's affidavit filed in support of an estates motion.

The moving party argued the affidavit was an improper use of a solicitor's affidavit, contained scandalous and vexatious material, and breached settlement privilege.

The court dismissed the motion, finding the affidavit was properly used to provide non-contentious background facts, did not contain scandalous material, and that any potential settlement privilege issues were too intertwined with non-privileged material to be struck at this stage.

The applicant was previously awarded costs for a motion and counter-motion regarding financial disclosure and setting the matter down for trial.

The court found that the respondent intentionally refused to produce relevant documentation to frustrate the determination of child support.

The applicant claimed $13,143 in total costs.

To send a message that nothing short of full financial disclosure is acceptable, the court fixed costs at $7,500 inclusive of disbursements and HST.

The court determined costs following a temporary custody motion where the respondent father achieved substantial success by obtaining joint custody and increased parenting time, contrary to the applicant mother's request for sole custody.

Both parties made offers to settle, but neither achieved a result more favourable than their offer.

The court awarded the respondent father partial indemnity costs fixed at $5,000, payable from the equalization payment owing to the applicant mother.

The applicant sought costs on a substantial indemnity basis after successfully opposing the respondent's motion regarding a jointly retained expert.

The applicant had made three offers to settle the motion, which the respondent rejected.

The court declined to evaluate the fairness of the proposed terms for a joint retainer, noting that such terms must be acceptable to both parties and cannot be imposed by the court.

Consequently, the court awarded the applicant partial indemnity costs fixed at $16,380.

The mother brought a motion for contempt against the father, alleging he failed to notify her of medical appointments, failed to share a tax refund, and breached the access schedule.

The court dismissed the motion, finding the mother failed to prove the allegations beyond a reasonable doubt.

The father properly accounted for the tax refund by deducting amounts the mother owed, and the access schedule allowed flexibility for the father's work schedule as an airline pilot.

Costs of $1,400 were awarded to the father.

The plaintiff, a lawyer, sued Bell Canada for breach of contract and misrepresentation after Bell disconnected his telephone services.

The plaintiff alleged that Bell failed to maintain a six-month seasonal suspension of his phone number.

Bell argued that the plaintiff's account was in arrears, justifying the termination.

The court found that the plaintiff failed to prove his account was in good standing and that he had not paid the required fees.

The court also found that Bell's Terms of Service applied to the contract.

The plaintiff's claims were dismissed.

The minor plaintiff, who had a pre-existing condition making his bones prone to fracture, was injured while attempting to board a continuously moving amusement park ride.

The plaintiffs sued the amusement park operator for negligence under the Occupiers' Liability Act.

The court found the defendant breached its duty of care by failing to post warning signs, failing to provide verbal instructions that the ride did not stop, and failing to have sufficient staff present.

The court dismissed the defendant's claims of contributory negligence against the minor and his father.

Damages were awarded to the minor plaintiff and his parents, taking into account the minor's pre-existing condition under the crumbling skull rule.

Sentencing for two counts of possession of child pornography, criminal harassment, and breach of probation arising from sexually explicit materials involving children and persistent unwanted communications causing the complainant to fear for her safety.

The court emphasized denunciation, general deterrence, and specific deterrence, particularly given the offender's prior conviction for a sexual offence against a child, the disturbing content of a lengthy journal advocating sexual activity with children, and compelling psychiatric evidence of entrenched paraphilic interests and risk.

Applying proportionality, the court held the offender could not be sentenced on the basis of future dangerousness alone, but required a substantial penitentiary-equivalent sanction.

A global effective sentence of five years was imposed, realized through ten months' imprisonment after enhanced pre-sentence credit, followed by three years' probation and multiple ancillary orders.

The appellant appealed his conviction and sentence for criminal harassment.

He argued the trial judge erred by allowing the Crown to call reply evidence on a collateral issue regarding how he obtained an invitation to the complainant's dinner party.

The Summary Conviction Appeal Court held that the reply evidence was admissible because the issue took on new significance during the defence case.

The court also found the sentence, which included a suspended sentence and three years' probation, was not clearly unreasonable given the persistent nature of the harassment.

The appeals against conviction and sentence were dismissed.

The parties sought clarification on the settlement of an order following a judgment declaring a bulk sale void for non-compliance with the Bulk Sales Act.

The applicant trustee argued that the respondent purchaser's liability to account for the 'value of the stock in bulk' under s. 16(2) of the Act included the HST paid on the transaction.

The court applied the modern principle of statutory interpretation and held that the plain and ordinary meaning of 'value of the stock in bulk' does not include value-added taxes like HST.

The respondent's maximum liability was therefore capped at the purchase price excluding HST, less amounts paid to secured creditors.

In a wrongful dismissal action by a short-service senior construction employee, the court rejected the employer's unpleaded argument that the employment contract was void for alleged misrepresentation of qualifications.

Applying the Bardal factors, and taking into account the employer's bad-faith contractual conduct and pre-employment misrepresentations about corporate value and promised equity, the court fixed reasonable notice at eight months.

The court also found a clear contractual breach where the employer failed to issue the promised 5% shareholding and accepted evidence that the employee had been told those shares were worth $500,000.

Damages of eight months' salary plus $500,000 for the unissued shares were awarded.

The appellant appealed his conviction for driving over the legal limit, arguing the trial judge erred in finding the police officer had reasonable suspicion to make a roadside breath demand.

The officer's notes contained errors, including checking 'absent' for the odour of alcohol, which he explained at trial as a mistake.

The Summary Conviction Appeal Court found the trial judge's acceptance of the officer's evidence was not unreasonable and did not constitute a palpable and overriding error.

Although the trial judge erred by presuming the officer's credibility was enhanced by his career status, this error did not cause a substantial wrong.

The appeal was dismissed.

This was a costs decision following an earlier order dismissing the action against one defendant, lifting a stay imposed after a security for costs order, and varying a timetable.

The court declined to make any costs order regarding the remaining defendants because the action continued against them and the record did not permit an assessment of merit.

The dismissed defendant was treated as successful in the action, particularly given the serious unwithdrawn allegations of deceptive conduct, bad faith, reprehensible behaviour, and fraud-like conduct.

Relying on the principle that unsubstantiated fraud or dishonesty allegations can justify elevated costs, the court awarded that defendant substantial indemnity costs fixed at $20,000.

The accused was charged with aggravated assault and assault with a weapon after stabbing the complainant, who was the husband of the accused's landlord.

The complainant confronted the accused over suspicions of an affair with his wife, leading to a physical altercation.

The accused testified that the complainant attacked him, held him by his shirt, and threatened to kill him, prompting the accused to use a knife to defend himself.

The court found the complainant's evidence lacked credibility and accepted the accused's version of events.

The court concluded that the Crown failed to disprove self-defence beyond a reasonable doubt, finding the force used was reasonable in the circumstances.

The accused was acquitted of all charges.

The court issued a consent order setting the timetable for the parties to deliver their costs submissions.