SCJ 2015

Following a traffic stop after surveillance at a nightclub, police found two loaded handguns hidden in a vehicle.

The court held that circumstantial evidence proved beyond a reasonable doubt that one accused personally carried and secreted a loaded Smith & Wesson handgun under the dashboard and was guilty of the related possession, vehicle-occupant, and concealed weapon offences.

The court was not satisfied beyond a reasonable doubt that the same accused possessed the second handgun hidden under a rear floor mat, given the equal plausibility that another passenger placed it there.

The owner-driver was acquitted entirely because his exculpatory testimony raised a reasonable doubt and the Crown failed to prove knowing possession or control of either firearm.

The applicant was arrested for possession of cocaine for the purpose of trafficking after police observed him engaging in suspected hand-to-hand drug transactions from his rental vehicle.

Following his arrest, police towed the vehicle to the station and conducted a warrantless search, discovering 5.5 grams of crack cocaine hidden in the visor.

The applicant brought a Charter application alleging breaches of his s. 8 and s. 9 rights, arguing the police lacked reasonable grounds for arrest and that the search was unlawful.

The court dismissed the application, finding the officers had objectively reasonable grounds for the arrest based on their observations and experience, and that the subsequent vehicle search was a lawful search incident to arrest.

During a trial for second-degree murder involving the death of a three-year-old child, the Crown sought to introduce graphic autopsy photographs.

The accused objected, arguing the photographs were highly prejudicial and would alienate the jury.

The court ruled the photographs admissible, finding they were necessary to demonstrate the nature and extent of the injuries, which was critical to the Crown's theory that the injuries were inflicted deliberately rather than accidentally.

The court concluded the probative value of the photographs outweighed their prejudicial effect, subject to limiting instructions to the jury.

Following a prior finding of civil contempt for commencing foreign litigation contrary to a final order, the court addressed the outstanding sentencing issues of costs, fine, and payment mechanics.

Applying civil contempt sentencing principles and the presumptive substantial indemnity approach to contempt costs, the court held that the contemnor's second act of contempt, the delays caused, and the seriousness of undermining court orders justified substantial indemnity costs, subject to a reduction for duplication of effort.

The court also imposed a fine to reflect specific and general deterrence, emphasizing the need to protect the authority of court orders.

Directions were given for release of trust funds and payment of statutory interest.

The defendants moved to strike a graduate student's Statement of Claim arising from allegations that university officials pressured him to switch from a PhD program to a Master's program and interfered with funding.

The court found the pleading prolix, deficient in material particulars, and inadequate to support pleaded causes of action for breach of fiduciary duty, breach of contract, negligent misrepresentation, and intentional infliction of emotional distress in its current form.

However, it was not plain and obvious that the claims were incapable of amendment, particularly regarding alleged contractual rights to funding and limits on university discretion.

The claims against the individual defendants, and the claims for conspiracy and fraudulent misrepresentation, were withdrawn on consent.

The impugned remaining claims were struck with leave to amend, and no costs were ordered.

Applicants under multiple long-term power purchase agreements sought declarations that the respondent miscalculated Total Market Cost after the 2011 global adjustment reallocation regime came into force.

The court held that the contractual definition of TMC implicitly required aggregated electricity costs to be allocated pro rata based on electricity consumption, and that the respondent's new formula improperly reflected a regulatory reallocation between customer classes rather than the underlying costs of generation and supply.

Although the court found the respondent breached the PPAs, it also held that neither the change of law clauses nor the material change provisions were triggered by the reallocation regulation.

Declaratory and consequential relief was granted requiring recalculation from January 1, 2011 and compensation with interest.

The accused, charged with second-degree murder following the death of her three-year-old child from blunt force head trauma, applied for a directed verdict on both second-degree murder and manslaughter.

The Crown's case relied on circumstantial evidence and expert medical testimony indicating the child suffered multiple inflicted injuries of varying ages while in the exclusive care of the accused.

The court applied the Sheppard test and found sufficient evidence upon which a reasonable jury could conclude the accused committed an unlawful act causing death, and that she had the requisite intent for murder.

The application for a directed verdict was dismissed.

The applicant lawyer sought a declaration that he had priority to non-forfeited cash bail funds based on an alleged assignment from the accused client, and an order setting aside or circumventing an estreatment order that had directed the balance to the respondent who had posted the bail money.

The court held that it had no jurisdiction to review, vary, or reconsider the criminal estreatment order under the Criminal Code, and that the proceeding was in substance an impermissible collateral attack.

In any event, the court found the applicant had no enforceable security interest under the Personal Property Security Act because the debtor had no rights in the collateral to assign after previously relinquishing all claims to the funds to the respondent.

The application was dismissed and the clerk was directed to release the funds to the respondent.

Cross-motions arose out of enforcement proceedings on an ICC arbitration award against a foreign state, where the judgment creditor sought to garnish embassy-related bank accounts and the foreign state claimed diplomatic immunity.

The court held that a waiver of state immunity under the State Immunity Act did not amount to a complete waiver of diplomatic immunity, and that a certificate issued under the Foreign Missions and International Organizations Act could not itself confer immunity over bank accounts where the statute was silent.

Applying customary international law as incorporated into Canadian law, the court held that embassy and consular bank accounts are generally immune from attachment to the extent they are used for sovereign diplomatic or consular functions.

Because the evidentiary record lacked due assurances from a competent authority of the foreign state as to the purpose of the accounts, the court permitted further evidence and submissions.

The accused lawyer was tried on two fraud counts arising from mortgage investments arranged for long-time clients whose funds were placed into several second mortgages and later rolled into a further mortgage.

The Crown alleged that the accused's failure to properly document and register the mortgages, culminating in registration of a third mortgage that became worthless on a power of sale, constituted intentional deceit causing deprivation or risk of deprivation.

The court found the evidence established serious negligence, conflicts of interest, fiduciary breaches, and substandard lawyering, but left a reasonable doubt as to whether the omissions were criminally dishonest or instead coincided with the complainants' own wish to keep the investments obscure.

The Crown failed to prove fraudulent mens rea beyond a reasonable doubt, and acquittals were entered on all counts.

In a criminal trial arising from a fatal motor vehicle collision, the accused sought exclusion of roadside, police-station, and ambulance statements, together with refusal evidence, on the basis of alleged breaches of ss. 7 and 10(b) of the Charter.

The court held that the roadside denial of drinking was not a statutorily compelled statement, was not protected from later use as merely demand-founding evidence on these facts, and was voluntary.

The court further found no denial of the right to counsel, concluding that although the police initially resisted contact with the accused's mother, the accused did not exercise reasonable diligence in seeking counsel and instead used counsel requests to obstruct and delay the breath-testing process.

The statement to the paramedic was also held admissible because the paramedic was not a person in authority.

The application was dismissed and the challenged evidence was admitted.

This was a costs endorsement following the dismissal of cross-motions, the striking of an amended statement of claim without leave to amend, and dismissal of the action.

The court held that the successful moving defendants were entitled to costs and that separate costs could be claimed for counsel representing the trustee services interests because that representation was distinct and necessary.

Applying the normal rule that costs follow the event, and considering the factors under s. 131 of the Courts of Justice Act and Rule 57.01, the court rejected the unsuccessful plaintiffs' claim for their own costs.

Although the defendants sought substantially more, the court exercised restraint and fixed partial indemnity costs at $20,000, with differentiated payment responsibility between all plaintiffs and one plaintiff individually.

On a Crown application in a murder prosecution, the court considered whether evidence that the accused possessed a knife similar to the murder weapon and had made a threatening statement about it was admissible as similar fact or discreditable conduct evidence.

Applying the governing similar fact framework, the court held the proposed evidence did not connect to the charged stabbing in any meaningful way and did not fit the recognized connecting factors.

The court also relied on analogous authority rejecting possession of non-murder weapons as circumstantial proof of homicide.

The prejudicial effect outweighed the limited probative value, and the application was dismissed.

In a franchise disclosure action, the plaintiffs moved to enforce an agreed timetable for a pending summary judgment motion, while the defendants cross-moved for production of an affidavit of documents before being required to respond.

The court held that, following the 2010 amendments to the Rules of Civil Procedure, there was no automatic entitlement to an affidavit of documents after the close of pleadings and no right to compel one in the absence of a discovery plan.

Applying the modern summary judgment approach endorsed in Hryniak, the court found that responding parties retained adequate procedural tools to obtain relevant evidence without defaulting to conventional documentary discovery.

The plaintiffs' motion to enforce the timetable was granted with revised dates, and the defendants' cross-motion was dismissed.

During a criminal trial for two robberies, the Crown sought to admit a co-participant witness's prior sworn agreed statement of facts after the witness recanted and refused to adopt it in cross-examination under s. 9(2) of the Canada Evidence Act.

The court held that necessity was established by the recantation and that threshold reliability was satisfied both procedurally and substantively under the K.G.B. framework.

The statement had been sworn during guilty plea proceedings, prepared with counsel, and the witness was available for full cross-examination.

The contents were also strongly corroborated by the witness's earlier video statement and other trial evidence.

The prior sworn statement was admitted as substantive evidence for the truth of its contents.

The accused was tried on two counts of criminal harassment and one count of breach of probation arising from post-separation contact with his estranged spouse.

The court reviewed a lengthy course of communications and encounters in the context of an on-again, off-again relationship, ongoing property disputes, and mixed messages from the complainant.

Although the court found one August incident amounted to deliberate harassment, it was not satisfied beyond a reasonable doubt that the complainant feared for her personal safety or psychological well-being as required by s. 264.

The evidence of repeated following also did not rise above suspicion.

The accused was acquitted on all counts.

The plaintiffs sought an adjournment of a defendant's motion to dismiss the action for failure to post court-ordered security for costs.

The court noted the plaintiffs' repeated failures to comply with court orders and the apparent overlap with another related proceeding, raising a possible abuse of process concern.

The adjournment was nevertheless granted because counsel represented that the jailed plaintiff's evidence was necessary to respond to the motion, and the court found little prejudice in a short delay.

The dismissal motion was adjourned peremptorily to the plaintiffs, and the plaintiffs were barred from taking further steps until the security ordered had been posted.

Costs thrown away of $2,500 were ordered payable forthwith to the responding defendant.

The plaintiff moved under Rule 59.06(2) to vary a prior timetable order and obtain additional time to ready a property transfer action for trial.

Applying by analogy the factors used on motions to set aside a registrar’s dismissal order, the court considered the explanation for delay, inadvertence, delay in bringing the motion, and prejudice.

The court accepted that serious mental health and addiction issues, language barriers, changes in counsel, and improved current supports provided a satisfactory explanation and amounted to exceptional circumstances.

Finding no evidence of prejudice to the defendants, the court granted a final timetable extension, dispensed with mandatory mediation, and ordered no costs.

In a medical malpractice action against two oral surgeons, the plaintiffs moved to remove one defendant's counsel based on a conflict arising from the firm's prior joint representation of both defendants.

Although the former client had earlier given a waiver, the court held that a later agreement that counsel would not act adversely to his immediate interests modified that consent.

Applying the duty of loyalty to former and current clients, and emphasizing public confidence in the administration of justice, the court found it would be difficult if not impossible to conduct the trial without a substantial risk of adversity, compromised process, or mistrial.

The motion was granted and counsel was removed, with new counsel to be retained and a new trial date fixed.

The union moved to strike the plaintiff's claim against it on the basis that the pleading alleged a breach of the duty of fair representation.

The court held that such complaints fall within the exclusive jurisdiction of the Ontario Labour Relations Board under s. 74 of the Ontario Labour Relations Act, 1995, and may be dismissed under Rule 21.01(3)(a) of the Rules of Civil Procedure.

Relying on appellate and Supreme Court authority, the court found it had no jurisdiction over the claim against the union.

The motion was granted and the claim against the union was struck, with costs fixed at $1,500.