SCJ 2016

The accused brought an application to stay charges of possession of cocaine for the purpose of trafficking and possession of proceeds of crime, alleging a breach of his s. 11(b) Charter right to be tried within a reasonable time.

The total delay was 39 months, breaching the 30-month ceiling established in Jordan.

The court calculated the net delay at 34 months after deducting 5 months of defence delay.

Because this was a transitional case, the court applied the transitional exceptional circumstances doctrine, finding that the parties reasonably relied on the previous Morin framework and that the delay would not have warranted a stay under Morin.

The application was dismissed.

The plaintiff, a 58-year-old top-performing sales manager with eight years of service, brought a wrongful dismissal action against his former employer.

The court found the plaintiff was an employee, not an independent contractor, from the start of his engagement.

The court awarded a 12-month reasonable notice period, calculating damages based on base salary and an upward trend in commissions.

The court dismissed the claim for aggravated damages due to insufficient evidence of mental distress, but awarded $50,000 in punitive damages because the employer alleged just cause in bad faith as a negotiation tactic and significantly delayed paying statutory entitlements.

Following a jury trial where the plaintiff's slip and fall claim was dismissed, the successful defendant sought costs on a partial and substantial indemnity scale.

The plaintiff argued that no costs should be awarded due to his serious injuries and limited ability to pay.

The court declined to award substantial indemnity costs, finding the case was not exceptional.

The court also rejected the argument for zero costs, noting insufficient evidence of impecuniosity.

Applying principles of proportionality and access to justice, the court reduced the defendant's claimed costs and fixed the award at $12,500.

The plaintiff's personal injury action was dismissed after she failed to comply with an order requiring her to appoint new counsel.

She brought a motion under Rule 37.14 to set aside the dismissal, claiming she never received the notices of motion or the orders sent by regular mail to her home address.

The court found her claim implausible, noting that six separate documents were mailed to her correct address and none were returned as undelivered.

The court concluded she did not fail to appear through accident, mistake, or insufficient notice, and dismissed the motion.

The applicant was charged with possession of forged credit cards and child pornography after the CBSA intercepted a package of blank payment cards addressed to him.

After a Justice of the Peace refused to issue a search warrant due to insufficient grounds, police conducted a controlled delivery and arrested the applicant in his home without a warrant.

The police subsequently obtained a search warrant based partly on evidence found during the unlawful arrest and misleading information.

The applicant brought a Charter motion to exclude the evidence.

The Superior Court of Justice found severe violations of the applicant's s. 8 and s. 9 Charter rights, noting the officers lacked reasonable grounds for the arrest and relied on a mere suspicion.

The evidence, including the child pornography found on the applicant's computer, was excluded under s. 24(2).

The defendants, the Children's Aid Society of Ottawa and the police, brought motions to strike the plaintiffs' action under Rule 21.01 of the Rules of Civil Procedure.

The self-represented plaintiff alleged that the defendants were negligent and breached their duties by failing to investigate an assault by his ex-wife in 1995.

The court found that the plaintiff was aware of the assault and the police's refusal to lay charges by 2002 at the latest.

Consequently, the limitation period had expired long before the action was commenced in 2016.

The court struck the statement of claim without leave to amend, concluding it was plain and obvious the claim had no chance of success and was an abuse of process.

The court issued a notice to the plaintiff under Rule 2.1.01 of the Rules of Civil Procedure, considering the dismissal of the action.

The plaintiff requested and received an extension of time to respond but failed to provide written submissions.

Consequently, the court dismissed the action as frivolous, vexatious, and an abuse of process.

The appellant appealed his conviction for impaired driving, arguing that a 33-minute delay in administering an approved screening device (ASD) test at the roadside violated his Charter rights under ss. 8, 9, and 10(b).

He also argued the trial judge provided inadequate reasons and relied on inadmissible evidence compelled by statute.

The Superior Court of Justice dismissed the appeal, finding the 20-minute investigation to form reasonable suspicion and the 13-minute ASD administration were reasonable.

While the trial judge erred in considering the appellant's compelled admission of drinking as direct evidence of impairment, the error was harmless given the overwhelming admissible evidence of impairment.

The Children's Aid Society brought a motion for summary judgment seeking Crown Wardship without access for two young children.

The mother did not present a plan of care but sought access.

The maternal grandmother's partner presented a plan for a kinship placement.

The court found no genuine issue for trial regarding the kinship placement, noting it would essentially return the children to the same environment where they suffered neglect.

The court also found no genuine issue for trial regarding access, as the mother's relationship with the children was not beneficial and meaningful.

The motion for summary judgment was granted, and the children were made Crown Wards without access for the purposes of adoption.

The plaintiff moved for leave to amend his Statement of Claim to add claims for punitive and aggravated damages, and for further discovery, after the action had been set down for trial.

The proposed amendments arose from the defendant's late production of an accident investigation report.

The defendant opposed the motion, arguing the plaintiff failed to seek leave under Rule 48.04 and that the amendments raised a statute-barred new cause of action.

The court granted the motion, finding the amendments merely provided new legal characterizations of existing claims rather than a new cause of action, and the defendant demonstrated no non-compensable prejudice.

The moving party sought leave to appeal a decision dismissing its motion for summary judgment.

The underlying motion judge had found a triable issue regarding whether fraudulent concealment prevented the moving party from relying on the limitations period in the Trustee Act.

The court dismissed the motion for leave to appeal, finding that the moving party failed to establish conflicting case law or an issue of public importance that went beyond the interests of the immediate parties.

Following the dismissal of a motion brought by the defendant and a lien claimant to declare the plaintiff's construction lien expired, the court determined the costs payable to the successful plaintiff.

The plaintiff sought substantial indemnity costs of over $80,000, citing an unaccepted offer to settle and the importance of the motion.

The court found the offer did not comply with Rule 49 and awarded partial indemnity costs.

Applying the principle of proportionality and considering the factors in Rule 57.01, the court fixed costs at $22,000 inclusive of disbursements and HST.

The applicant sought leave to appeal an arbitral award finding it breached contractual and fiduciary duties by failing to redeem the respondent's hedge fund investment.

The arbitrator awarded $1.3 million in damages, rejecting the applicant's argument that damages should be assessed based on an alternative, less onerous method of performance.

The Superior Court denied leave to appeal, finding that the arbitrator correctly interpreted the contract as mandating only one method of performance and that the applicant's challenges raised issues of mixed fact and law, not extricable questions of law.

The applicant brought an ex parte motion to enforce a family law judgment, seeking to pierce the corporate veil of an offshore company, issue garnishments, and obtain a vesting order for the respondent's shares.

The court granted leave to proceed ex parte due to the respondent's history of contempt and asset depletion.

However, the court adjourned the requests to pierce the corporate veil and issue garnishments to allow notice to affected third parties.

The court dismissed the request for a vesting order, finding it was functus officio and lacked jurisdiction under the Family Law Act, Family Law Rules, or Rules of Civil Procedure to grant new substantive relief after the final judgment had been entered.

The applicant brought a motion to adjust child and spousal support based on the respondent's actual income, which was higher than previously reported.

The respondent, who is self-employed, had a fluctuating income that dropped significantly in 2015 according to an expert report.

The applicant sought to impute income for 2015 based on a three-year average under section 17(1) of the Federal Child Support Guidelines.

The court ordered support based on the expert's income valuations for 2012-2014, but declined to average the income for 2015, instead using the expert's estimated lower income for that year and suspending spousal support.

The moving party sought leave to appeal an interim child and spousal support order to the Divisional Court.

The interim order imputed income to the moving party due to non-disclosure and questionable business deductions.

The court applied the strict test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court found no conflicting decisions, no reason to doubt the correctness of the interim order, and no issues of general or public importance.

The motion for leave to appeal was dismissed with costs awarded to the responding party.

Following a motion where the applicants achieved substantial success, the parties provided written submissions on costs.

The applicants sought costs on a substantial indemnity basis in the amount of $14,803.00 plus disbursements.

The respondents argued they should be compensated for costs thrown away due to allegedly wasteful steps.

The court awarded the applicants $5,000 inclusive of disbursements and taxes, leaving the respondents' arguments regarding wasted costs to be determined by the trial judge.

Following the dismissal of the plaintiff's motion for summary judgment, the successful defendant sought costs of $25,526, including a request that costs be paid personally by the plaintiff's counsel.

The court found the requested amount disproportionate to the issue and time incurred, and declined to order costs against counsel personally.

The court fixed costs at $3,500 inclusive of disbursements and taxes, payable by the plaintiff.

The appellant appealed his conviction for failing to provide a breath sample into an Approved Screening Device.

He argued his refusal was equivocal because he believed he was not the driver and wanted to speak to counsel first, and that the demand was not made forthwith.

The Superior Court of Justice dismissed the appeal, finding ample evidence to support the trial judge's conclusions that the refusal was unequivocal, the demand was made forthwith, and no Charter breach occurred since the offence was complete before the right to counsel was engaged.

The accused, charged with first degree murder, brought an application to bar the Crown from calling witnesses to testify about matters that the defence had already admitted or offered to admit.

The defence argued that calling such evidence was unnecessary and irrelevant given the admissions.

The court dismissed the application, holding that the Crown has broad prosecutorial discretion to determine how to present its case, including the right to reject defence-framed admissions and to call evidence to prove elements such as planning and deliberation, negate third-party suspect theories, and provide confirmatory evidence for unsavoury witnesses.