SCJ 2015

The appellant appealed summary conviction findings of guilt for impaired operation of a motor vehicle and operating with excess blood alcohol.

He argued the trial judge erred in finding the arresting officer had reasonable and probable grounds to arrest, misapprehended the evidence, and improperly assessed credibility in rejecting his testimony about the implementation of his right to counsel under s. 10(b) of the Charter.

The court held that the trial judge correctly applied the legal test for reasonable and probable grounds and did not misstate the evidence regarding observations of impairment.

The trial judge’s credibility findings were entitled to deference and disclosed no palpable or overriding error.

The evidence, including observations of impairment and intoxilyzer readings, supported the conviction beyond a reasonable doubt.

The accused brought a Garofoli application seeking to cross‑examine the affiant officer and to exclude evidence obtained pursuant to a search warrant authorizing a search of his residence for offences under the Controlled Drugs and Substances Act.

The accused argued that the warrant was issued without reasonable grounds because the Information to Obtain relied heavily on unproven confidential informants whose reliability had not been sufficiently established.

The court held that cross‑examination of the affiant was unnecessary because it would not assist in determining whether the authorizing justice could have granted the warrant.

Applying the totality of the circumstances approach from Debot, the court found that the informant information was compelling, credible, and corroborated by police investigation including background checks and electricity consumption data.

The search warrant was therefore valid and the Charter application to exclude the evidence was dismissed.

Following a motion concerning the enforceability of an employment agreement, the court determined the appropriate costs award.

The plaintiff succeeded on the principal issue of enforceability, while the defendant succeeded on inducement and the dismissal of punitive damages.

The court considered the divided success, the principle of indemnity, and the factors under Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act.

Although the plaintiff sought $16,505 in partial indemnity costs, the court found the amount somewhat high and adjusted the award to reflect the mixed success of the parties.

Costs were fixed at $10,000 inclusive of HST and disbursements.

Following dismissal of a motion seeking leave to issue a certificate of pending litigation (CPL), the successful party sought costs on a full indemnity basis.

The court considered the discretionary framework for costs under the Courts of Justice Act and the Rules of Civil Procedure, including the principles of proportionality and fairness.

While the successful party argued the opposing party unnecessarily lengthened the motion and improperly registered cautions on title, the court found no reprehensible conduct justifying elevated costs.

The requested costs were also found to be excessive for the nature of the motion.

Costs were therefore fixed at a reduced amount on a partial indemnity basis.

The insurer brought a motion for summary judgment seeking dismissal of an action for indemnity under uninsured and family protection coverage following a motor vehicle accident involving an uninsured driver.

The insurer argued the action was statute‑barred and that the insureds failed to comply with the 30‑day notice requirement under Ontario Regulation 676.

The court held that the two‑year limitation period under the Limitations Act, 2002 applied and began when the insured demanded indemnification from the insurer, consistent with appellate authority governing OPCF 44R claims.

The court further found the insureds’ late notice constituted imperfect compliance and granted relief from forfeiture under the Insurance Act and Courts of Justice Act, noting minimal prejudice to the insurer and significant disparity between the breach and the loss of coverage.

The insurer’s summary judgment motion was dismissed.

The applicant brought a motion to suspend the respondent’s access to the parties’ children and require supervised access.

The respondent brought a motion seeking enforcement of a prior final order requiring the children’s residence to remain within 80 kilometres of Barrie and compliance with the access provisions.

The court held that the applicant’s motion could not proceed before a case conference under Rule 14(4) of the Family Law Rules and that no urgency justified an exemption.

The court found the applicant had moved the children more than 80 kilometres from Barrie without consent or court order, contrary to the final order.

A temporary order was made requiring the applicant to return the children’s residence to within 80 kilometres of Barrie and to comply with the final order.

The accused brought a Charter application under s. 24(2) seeking exclusion of firearms, ammunition, and related evidence seized from his residence pursuant to a search warrant.

The Crown conceded the redacted information to obtain (ITO) lacked sufficient grounds to justify the warrant, establishing a breach of the accused’s s. 8 Charter right against unreasonable search and seizure.

The court found the ITO not only deficient but materially misleading, particularly regarding the reliability and source of confidential informant information and the failure to disclose the informant’s criminal record or properly verify the information relied upon.

Applying the three‑part test from Grant, the court held that the seriousness of the state conduct and the significant privacy intrusion of searching a residence outweighed society’s interest in adjudication on the merits.

The seized evidence was therefore excluded.

Following a motion in family proceedings in which the applicant obtained a temporary restraining order under s. 46 of the Family Law Act but not to the full extent sought, the court determined the appropriate costs award.

Applying Rule 24 of the Family Law Rules and the presumption that the successful party is entitled to costs, the court considered proportionality, the parties’ conduct, the absence of settlement offers, and the financial circumstances of the respondent.

The applicant sought partial indemnity costs of $4,415.79, while the respondent argued for $2,500 with a payment plan.

The court found the claimed disbursements reasonable but the time spent slightly excessive.

Costs were fixed at $3,000 inclusive of HST and disbursements, payable in monthly instalments.

The moving defendants sought summary judgment dismissing a fraudulent conveyance and knowing assistance action as statute-barred under the Limitations Act, 2002.

The action arose from efforts to enforce a substantial divorce judgment where assets were allegedly transferred through corporate structures to defeat execution.

The court held that the material facts underlying the claims were not discoverable until an equitable receiver, appointed in aid of execution, obtained corporate records in 2010 that had previously been withheld.

The action commenced in 2012 was therefore within the limitation period.

The court also ruled that the defendant named as estate trustee of a deceased individual was not in fact the estate trustee but appointed her as litigation administrator of the estate under Rule 9.03(2).

In a first‑degree murder prosecution, the Crown sought to introduce post‑offence conduct evidence relating to the accused’s handling of a toolbox and the use of an incinerator following the alleged killing.

The defence argued the evidence was speculative, highly prejudicial, and equally consistent with non‑culpable explanations.

The court reviewed the governing principles on post‑offence conduct evidence, including the Supreme Court’s guidance that such evidence is a form of circumstantial evidence whose weight is ordinarily for the jury.

The court held that both the toolbox evidence and the incinerator evidence were relevant and capable of supporting reasonable inferences regarding involvement in a culpable homicide.

Any risk of prejudice could be addressed through careful jury instructions.

The plaintiffs moved for summary judgment to recover the balance of a purchase price under an asset purchase agreement for valve-related business assets.

The defendants alleged contractual ambiguity, misrepresentation, and unilateral mistake relating to the valuation of slow-moving inventory and argued that the purchase price should have been reduced.

The court held that the agreement unambiguously required valuation of inventory at the plaintiffs’ cost as verified through a joint count at closing, which the defendants’ representative confirmed in writing.

The defendants failed to produce evidence supporting their valuation or their representative’s position and attempted to retrospectively alter the agreed contractual process.

Finding no genuine issue requiring a trial, the court granted summary judgment to the plaintiffs.

The plaintiff sought leave under s. 138.8 of the Securities Act to pursue a statutory secondary market misrepresentation claim arising from the defendant issuer’s accounting treatment of smartphone sales.

The motion concerned whether the issuer’s use of sell‑in revenue recognition for a newly launched product violated GAAP and whether a later news release constituted a public correction of the alleged misrepresentation.

The court held that the plaintiff had presented credible expert evidence establishing a reasonable possibility that the accounting treatment materially misstated revenues.

The court further articulated principles governing the “public correction” requirement under s. 138.3 and concluded that the issuer’s subsequent disclosure of a shift to sell‑through accounting and a large inventory charge was reasonably capable of revealing the alleged earlier misrepresentation.

Leave to proceed with the statutory claim was therefore granted.

In a medical negligence action arising from alleged delayed diagnosis of a postoperative complication leading to catastrophic injuries, the defendant physicians brought a motion seeking permission for one defendant physician to testify at trial by videoconference.

The physician was on maternity leave in another province and argued that attending in person would cause expense and inconvenience.

The court considered Rule 1.08 of the Rules of Civil Procedure and the efficiency principles articulated in Hryniak v. Mauldin.

The court held that the request was inappropriate because the proposed witness was a party defendant whose credibility and conduct were in issue, and the plaintiff had a fundamental right to have the parties attend court for trial.

The inconvenience to the defendant did not constitute sufficient hardship to override due process considerations.

Following the breakdown of their 12-year common law relationship, the applicant and respondent disputed property division, spousal support, child support, and travel consent for their children.

The court found that while the parties were engaged in a joint family venture, there was no unjust enrichment, and dismissed the trust claims regarding two properties, leaving title as is.

The court imputed an income of $50,000 to the respondent, ordering the applicant to pay $2,440 per month in spousal support for four years, and the respondent to pay $743 per month in child support.

The court also established a protocol for obtaining children's government documents and travel consent.

The offender, a 33-year-old first-time offender and single mother of four, was convicted of acting as the getaway driver in two armed robberies at bus stops.

The principal offender used an imitation firearm.

The Crown sought 2-3 years imprisonment, while the defence sought time served to avoid potential deportation consequences under the IRPA.

The court emphasized denunciation and deterrence, noting the serious impact on the victims, but acknowledged the offender's lesser role compared to the principal.

The court imposed a sentence of 18 months incarceration, reduced to 4 months after crediting pre-sentence custody and time spent on bail with a curfew, followed by 2 years of probation.

The accused was tried on multiple sexual offences alleged against two child complainants who were his great‑grandchildren while he and his wife provided daycare.

The court acquitted the accused on two counts relating to the older complainant, finding the delayed disclosure, reliability concerns, and possible memory contamination created reasonable doubt.

However, the court admitted and relied upon hearsay statements from the younger complainant under the principled exception established in R. v. Khan after finding threshold reliability and necessity.

The statements, corroborating surrounding evidence, and the accused’s own statements and conduct satisfied the court beyond a reasonable doubt that sexual offences occurred against the younger complainant.

The accused’s testimony was rejected as fabricated and unreliable.

In a prosecution for historic and recent sexual offences against two young relatives, the Crown sought to admit several hearsay statements made by a four‑year‑old complainant who was later found incompetent to testify under s. 16.1(3) of the Canada Evidence Act.

The court considered the principled exception to the hearsay rule under R. v. Khan and subsequent jurisprudence, assessing necessity and threshold reliability.

The judge held that the complainant’s statements to her mother shortly after the alleged incidents and again several weeks later were reasonably necessary and sufficiently reliable, given their timing, spontaneous nature, lack of motive to fabricate, child‑like language, and corroborative circumstances including the accused’s response when confronted.

Statements made by the complainant to her brother and to a SickKids interviewer were excluded because they were not reasonably necessary, as they added little beyond the more detailed statements already admitted.

The ruling admitted the mother’s evidence of the child’s disclosures while excluding other hearsay evidence.

In a murder trial involving a young person, the defence brought a Scopelliti motion seeking to introduce images recovered from the deceased’s cellphone memory card to suggest a violent disposition and support a claim of self‑defence.

The proposed evidence consisted of photographs of firearms, knives, cash, marijuana, and aggressive slogans whose origin and authorship were unknown.

The court applied the governing principles from Scopelliti and subsequent authorities and concluded that the images had minimal probative value and did not demonstrate prior acts of violence or a disposition to carry weapons.

Any limited probative value was substantially outweighed by the prejudicial effect, risk of improper reasoning about the deceased’s character, and the potential to distract the jury with collateral issues.

The evidence was therefore ruled inadmissible.

Following an earlier ruling on a motion, the court addressed a dispute concerning the allocation of agreed costs.

The parties agreed that $9,000 in costs would be payable to two respondents, but the applicants argued that additional respondents should share liability for those costs.

The court found that the additional respondents had been present only on a watching brief and were not part of the bifurcated application.

The court rejected the applicants’ position and ordered that those respondents should not share liability.

Instead, the applicants were ordered to pay additional costs to those respondents for having to participate in the costs submissions.

The defendant brought motions for security for costs in two related motor vehicle accident actions commenced by spouses.

Although the plaintiffs had moved to Ghana and were therefore ordinarily resident outside Ontario, they proposed transferring the actions to Small Claims Court.

The court held that if the actions were transferred, security for costs would not be available because the Small Claims Court lacks jurisdiction to order it.

The decision on the motions was therefore reserved for 120 days to allow the plaintiffs to pursue transfer of the actions.