SCJ 2015

The offender was convicted of invitation to sexual touching and attempting to obtain sexual services of a minor after making telephone calls to his friend's 14-year-old daughter offering money for dirty panties and sexual acts.

The Crown sought two to three years in custody, while the defence sought six to nine months.

The court found the offender was in a position of trust, which was an aggravating factor, but noted the offences consisted of brief conversations.

The court sentenced the offender to one year of imprisonment concurrent on both counts, followed by two years of probation, and imposed a lifetime SOIRA order and a five-year s. 161 prohibition order.

The third party insurer, Pembridge, moved under Rule 21 to strike the defendants' third party claim against it.

Pembridge had previously been added as a statutory third party under section 258(14) of the Insurance Act because the defendant driver was allegedly operating the vehicle in violation of her G1 licence conditions.

The court applied established jurisprudence holding that once an insurer acquires the status of a statutory third party, a defendant cannot issue a third party claim against it.

The motion was granted and the third party claim was struck.

In a proposed class proceeding, the defendants sought to schedule a pleadings motion to strike certain claims and dismiss the action against several defendants before the certification motion.

The court considered the principles governing sequencing of motions in class proceedings and the factors identified in prior authority regarding whether preliminary motions should precede certification.

Applying those factors, the court held that the pleadings motion would not dispose of the entire proceeding or substantially narrow the issues and could generate interlocutory appeals and delay.

Judicial economy and efficiency favoured hearing the pleadings motion together with the certification motion.

The defendants were therefore directed to deliver their Statement of Defence, without prejudice to bringing their proposed motion later.

The plaintiffs brought a motion to set aside an administrative dismissal of their solicitor’s negligence action under Rule 48.14 of the Rules of Civil Procedure.

The court applied the contextual approach and considered the Reid factors, including explanation for delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendant.

The delay in setting the action down for trial was attributed primarily to inadvertence arising from a medical emergency affecting counsel’s administrative assistant responsible for the office tickler system.

The court found no significant prejudice to the defendants and determined that the litigation had otherwise progressed toward trial.

In the interests of justice, the administrative dismissal was set aside and the action ordered to be set down for trial.

The accused applied for leave to cross‑examine the affiant police officer regarding an information to obtain supporting several search warrants in a drug trafficking investigation.

The defence argued various alleged flaws and omissions in the affidavit undermined the existence of reasonable and probable grounds and justified cross‑examination under the Garofoli framework.

The court held that most proposed areas of questioning concerned alleged weaknesses on the face of the warrant that could be addressed through argument on a Charter s. 8 application and would not assist in discrediting the preconditions for issuance of the warrant.

Broad inquiries into confidential informant reliability were also rejected due to the risk of violating informer privilege.

Leave was granted only on a narrow ground permitting cross‑examination regarding the affiant’s experience with drug investigations and the basis for believing evidence would be found at the accused’s residence.

The appellant appealed convictions for impaired operation and refusing to provide a breath sample.

He argued that the trial judge failed to properly assess whether the arresting officer’s belief of impairment was objectively reasonable, improperly relied on the refusal to provide a breath sample, and placed undue weight on demeanor evidence when comparing in-court testimony to video evidence.

The court held that the trial judge correctly applied the legal test for reasonable and probable grounds and that the factual findings—odour of alcohol, slurred speech, presence of alcohol, and difficulty opening the glove compartment—supported the officer’s belief of impairment.

The court also held that refusal evidence was admissible and could support an adverse inference under the Criminal Code.

The appeal court found no reversible error in the credibility findings or evidentiary assessment.

Following a family law decision concerning child access and support, the court determined the issue of costs.

The successful party sought costs after prevailing on all claims, including the dismissal of the opposing party’s motion to change.

The court applied Rule 24 of the Family Law Rules, which presumes that the successful party is entitled to costs and permits full recovery where a party has acted unreasonably or in bad faith.

The court found that the responding party maintained unreasonable positions, refused to settle support issues despite ultimately conceding the calculations, and increased litigation costs.

Costs were therefore awarded on a full indemnity basis and fixed in a lump sum.

A motion to change an earlier custody order proceeded as a trial of an issue concerning whether joint custody remained workable.

The moving party sought sole custody on the basis that the parties were unable to communicate or make joint decisions about the child’s medical treatment, schooling, religious upbringing, and other major issues.

Evidence included testimony from witnesses and a report from the Office of the Children’s Lawyer recommending sole custody to the primary caregiver.

The court found a material change in circumstances and concluded that joint custody had become unworkable due to persistent conflict and inability to cooperate.

Sole custody was granted to the moving party with ongoing access for the other parent and additional conditions regarding the child’s medical treatment and access schedule.

Following a successful application for the partition and sale of a property, the applicant sought costs on a substantial indemnity basis due to the respondents' delay and failure to comply with prior orders.

The respondents argued the costs claimed were disproportionate and should be deferred to the reference.

The court rejected the deferral and awarded costs to the applicant on a partial indemnity basis, fixing the amount at $35,000 inclusive, noting that the respondents' misconduct had already been addressed through prior admonishments and costs orders.

The court determined the appropriate costs following an earlier endorsement where the father effectively abandoned a motion to vary in family proceedings.

The mother sought recovery of substantial legal expenses incurred responding to the abandoned motion and in bringing her own motion.

Applying the general principles of costs under s. 131 of the Courts of Justice Act, Rule 57 of the Rules of Civil Procedure, and Rule 24 of the Family Law Rules, the court emphasized that costs typically follow the event and may serve to indemnify successful litigants and discourage inappropriate litigation conduct.

The court found the mother was entitled to costs arising from the abandoned motion and was also more successful on her own motion.

Costs were fixed at $7,500 for the abandoned motion and $3,000 for the mother’s motion.

The accused was tried on charges of possession of child pornography and making child pornography available through a peer-to-peer file-sharing program.

The court relied on forensic computer evidence, repeated use of search terms associated with child pornography, explicit file names, prior similar downloads on an older operating system, and the accused's admitted understanding of file-sharing and backup systems.

Applying the W.D. framework, the court rejected the accused's explanation that he was innocently searching for adult pornography and did not know the content or sharing consequences of the files.

The Crown proved knowledge and control beyond a reasonable doubt.

Guilty verdicts were entered on both counts.

The defendant requested that the court review the plaintiff’s action under Rule 2.1.01 of the Rules of Civil Procedure on the basis that it was frivolous or abusive.

The claim appeared to seek relief for statements made during legal proceedings related to a family matter.

The court noted that statements made in the course of judicial proceedings are protected by absolute privilege and cannot form the basis of a lawsuit.

The court directed the registrar to issue a notice requiring the plaintiff to provide written submissions explaining why the action should not be dismissed and stayed the proceeding pending that determination.

The applicant brought a motion to change seeking retroactive and prospective variation of child support under a separation agreement in a shared custody arrangement.

The respondent’s income had increased substantially after the agreement, yet support had not been recalculated annually as contemplated.

The court applied the framework from Contino v. Leonelli-Contino and the Federal Child Support Guidelines, holding that the proper starting point remained the table set‑off amount based on the parties’ line 150 incomes.

The respondent failed to demonstrate that the presumptive guideline amounts were inappropriate despite income exceeding $150,000.

Retroactive support was ordered from June 2012 with significant arrears and prospective set‑off support based on updated incomes.

The defendant sought to invoke Rule 2.1.01 to summarily dismiss a professional negligence action alleging negligent appellate advocacy.

The court held that Rule 2.1 is reserved for proceedings that are clearly frivolous, vexatious, or abusive on their face and is not appropriate where a real dispute exists between the parties.

The defendant improperly filed extensive written submissions and unsworn documentary materials rather than following the requisition procedure under Rule 2.1.01(6).

The pleadings disclosed a clear cause of action and nothing indicated that the plaintiff was a vexatious litigant.

The court declined to proceed under Rule 2.1 and criticized the defendant’s attempt to advance factual and legal arguments supported by unsworn materials.

The defendant invoked Rule 2.1.01 of the Rules of Civil Procedure seeking screening of a statement of claim alleging lawyer negligence.

The pleading consisted largely of annotated correspondence and failed to provide a concise statement of material facts as required by Rule 25.06(1).

The court found the materials raised concerns that the claim might be frivolous or vexatious.

Rather than immediately dismissing the action, the court directed the registrar to issue notice under Rule 2.1.01 and provided the plaintiff an opportunity to make written submissions and potentially file a draft amended statement of claim.

The action was stayed pending the outcome of the Rule 2.1 written hearing.

The defendants requisitioned the registrar to have the plaintiff’s action reviewed under Rule 2.1 of the Rules of Civil Procedure as potentially frivolous, vexatious, or an abuse of process.

The claim arose after the plaintiff was evicted from cooperative housing pursuant to orders of the Landlord and Tenant Board and subsequent court proceedings.

The plaintiff commenced a new action against the tribunal member, court employee, the cooperative, its counsel, and a manager involved in service.

The court held that the action appeared to attempt to relitigate matters already decided and noted the immunity of tribunal adjudicators and the absence of duties owed by opposing counsel to adverse parties.

The court directed the registrar to give notice that dismissal under Rule 2.1 was being considered and stayed the action pending written submissions.

The accused, charged with the first-degree murder of his daughter, brought a pre-trial application to exclude expert opinion evidence suggesting starvation as a possible cause of death.

The accused argued the Crown provided late notice of this theory and that the underlying estimates of the victim's pre-death weight lacked scientific validity.

The court dismissed the application, finding that late notice did not warrant exclusion given the time remaining before trial, and that the experts' estimates, based on specialized experience rather than strict scientific testing, met the threshold reliability required for admissibility.

The Crown appealed a conditional discharge imposed on the respondent for an unprovoked attack on a pregnant public transit operator.

The Crown argued the sentence failed to reflect denunciation and deterrence and was contrary to the public interest.

The Superior Court of Justice dismissed the appeal, finding the sentencing judge properly balanced the sentencing principles, including the respondent's mental health issues and status as a first-time offender, and correctly applied the principles for conditional sentences.

The court considered whether an interim injunctive order granted during an adjournment of an application remained in effect after the application did not proceed on the scheduled return date.

The applicant had obtained an adjournment to conduct cross-examinations on affidavit evidence but failed to conduct the cross-examination and failed to file the necessary confirmation for the rescheduled hearing.

The court held that the interim injunction was granted on strict terms tied to the adjournment and anticipated cross-examination.

Because those conditions were not fulfilled and the application did not proceed, the basis for the interim relief no longer existed.

The court confirmed that the interim injunction expired on the scheduled return date but allowed the applicant to seek further interim relief in a future appearance.

The court determined costs following an urgent family law motion brought by the applicant.

The respondent sought full indemnity costs totalling $3,475.25, arguing the motion lacked urgency and was pursued unreasonably.

Applying Rule 24 of the Family Law Rules, the court considered success on the issues, proportionality, the conduct of the parties, and the applicant’s limited financial means.

The respondent was the successful party and entitled to costs, but the court reduced the requested amount.

Partial indemnity costs of $1,780.25 were awarded.