SCJ 2017

Marcus Berger pleaded guilty to one count of conspiracy to traffic in cocaine.

The Crown sought a penitentiary sentence of four to five years, while the defence requested three years.

The court considered aggravating factors, including the large quantity of cocaine and the commercial nature of the activity, alongside significant mitigating factors.

These mitigating factors included Berger's guilty plea, his status as a first offender, his serious drug addiction at the time of the offence, and his impressive rehabilitative efforts since his arrest, including achieving sobriety, re-establishing family relationships, and building a successful business.

The court also noted that Berger pleaded guilty despite a breach of his Charter rights that would have weakened the Crown's case at trial.

The judge exercised discretion to impose a sentence below the Crown's requested range due to these unique circumstances.

This is a costs endorsement following several motions in complex insurance litigation between TD Bank and its fidelity insurers, primarily concerning a successful partial summary judgment motion by TD Bank.

The court addressed the administrative issue of simplifying the style of cause and then considered the principles for awarding costs, emphasizing the "culture shift" towards efficient litigation.

The court confirmed costs in the cause for an earlier production motion and awarded TD Bank $330,000 in all-inclusive costs for the motion for directions and the partial summary judgment motion, to be paid jointly and severally by the defendant insurers, allocated pro rata to their policy exposure.

The offender was convicted of entering into an arrangement with an undercover police officer to commit sexual interference with a person under 16 years of age.

He challenged the constitutionality of the one-year mandatory minimum sentence under section 12 of the Charter, arguing it was grossly disproportionate.

The court reviewed the gravity of the offence, the offender's high moral blameworthiness, and mitigating factors including his lack of a prior record and genuine remorse.

The court determined that a fit and proper sentence range was 9 to 12 months, concluding that the one-year mandatory minimum was not grossly disproportionate and therefore constitutional.

Following a judge-alone criminal trial, the court convicted the accused on multiple sexual offences involving three child complainants and on firearm offences arising from firearms found in his rural residence while he was subject to a weapons prohibition order.

The court admitted two complainants' prior video-recorded statements under s. 715.1 of the Criminal Code, assessed the evidence through the lens of credibility, reliability, and the reasonable doubt standard, and accepted the complainants' evidence despite delayed disclosure and some peripheral inconsistencies.

DNA evidence from underwear and medical evidence from a sexual assault examination materially corroborated one complainant's account.

The court also found constructive possession of rifles in a locked cabinet and held that keeping a rifle in a kitchen accessible in a home with children, and discharging a firearm from inside the house, constituted a marked departure from the conduct of a reasonable person under s. 86(1).

The plaintiff, Brand Name Marketing Inc., brought an action against Rogers Communications Inc. for breach of a non-disclosure agreement and breach of confidence.

The plaintiff alleged that it provided confidential marketing concepts to Rogers regarding a 'Pink Phone program' and a 'Call for the Cure program', which involved affinity marketing with a breast cancer charity.

The plaintiff claimed that Rogers misused this information to launch its own 'Pink Razr campaign' and sought over $14 million in damages.

The Superior Court of Justice dismissed the action, finding that the plaintiff could not enforce the NDA as it was not a party to it at the relevant time.

Furthermore, the court held that while certain financial projections were confidential, the general concept of a charitable donation tied to a product sale was public knowledge.

Ultimately, the court concluded that Rogers did not use the plaintiff's confidential information in designing or implementing the Pink Razr campaign, which was fundamentally different from the plaintiff's proposals.

The offender was found guilty of assault causing bodily harm and three counts of breach of probation after attacking his cellmate in a correctional centre over a dispute about food.

The victim suffered fractured ribs, cuts requiring stitches, and bruising.

The court found the custodial setting to be an aggravating factor, as the victim was defenceless in a confined space.

The offender was sentenced to 18 months' imprisonment for the assault, less 2.5 months of pre-sentence credit, and concurrent 6-month sentences for the breaches, followed by three years of probation.

The plaintiff in a wrongful dismissal action sought leave under Rule 48.04 to bring a motion to serve an expert report regarding the definition of 'information technology professional' after the action had been set down for trial.

The defendant had pleaded that the plaintiff was exempt from overtime pay under the Employment Standards Act, 2000 because he was an information technology professional.

The court dismissed the motion, finding that the plaintiff had known of this defence throughout the litigation and provided no plausible explanation for the delay in seeking an expert report beyond counsel's inattention.

The plaintiffs brought a motion to have the defendant found in contempt of court for failing to comply with multiple court orders, including orders to provide an accounting and attend judgment debtor examinations.

The defendant admitted to eight counts of civil contempt, including egregiously lying to the court about his father's death to avoid a court appearance.

The court found the defendant in contempt beyond a reasonable doubt and sentenced him to a 76-day intermittent custodial sentence, emphasizing the need for specific and general deterrence and denunciation.

The defendant was also ordered to pay $50,000 in costs.

The plaintiffs sought an order for the defendant's incarceration for contempt of court orders.

The defendant had previously been found in contempt for failing to provide a tracing/accounting of investment funds.

The court found the defendant's one-page accounting insufficient to purge contempt but granted a final opportunity to comply.

The defendant was ordered to provide a full and complete tracing and accounting, including specific details and supporting documentation, by August 31, 2017, along with amended Schedule A documentation.

Failure to comply would result in the continuation of the contempt motion.

Costs were reserved.

A criminal trial for second-degree murder resulted in a finding of not criminally responsible on account of mental disorder (NCRMD).

The accused, suffering from schizophrenia, committed a fatal stabbing while experiencing severe delusions and hallucinations, believing the victim was possessed by a demon.

Expert psychiatric testimony, accepted by the court, established that the accused was incapable of appreciating the nature and quality of the act or knowing it was morally wrong under s. 16 of the Criminal Code.

The matter was referred to the Ontario Review Board for disposition.

Fabricio Calderon was sentenced for a home invasion involving the assault of residents and intent to steal.

Despite going to the wrong address, serious injuries were inflicted.

The court considered the objectives of sentencing for home invasions (protection, general deterrence, denunciation) and specific deterrence given the defendant's extensive criminal record.

Aggravating factors included the nighttime perpetration, weapon use, reference to a gun, severe victim injuries, high planning, group enterprise, and the defendant's prior armed robbery conviction and lifetime weapons prohibition.

Mitigating factors were a guilty plea and an apology.

The court imposed an 8-year penitentiary term, reduced by 45 months for pre-sentencing custody, leaving 51 months to serve, concurrent on another count.

Non-communication, DNA, and lifetime weapons prohibition orders were also issued.

The applicant sought costs after successfully defending against the respondent's motion to terminate child and spousal support and succeeding on her own motion.

The respondent argued he was unemployed due to medical reasons and could not pay.

The court found the respondent was intentionally underemployed, having failed to provide sufficient medical evidence or proof of job loss, and deemed his conduct unreasonable.

The court awarded the applicant $2,500 in costs on a substantial indemnity basis to cover her legal consulting fees.

The applicant, Christie Ann Culotta, faced five counts related to impaired and dangerous operation of a vessel causing bodily harm.

Both the Crown and defence brought pre-trial applications.

The Crown sought to admit utterances and a written statement as voluntary.

The defence sought to exclude these statements and evidence derived from seized blood samples and medical records, alleging breaches of Charter rights (ss. 7, 8, 9, 10(a), 10(b)).

The court ruled that the applicant's utterances in the ambulance and her subsequent written statement were voluntary and admissible.

However, the court found that the sealing of additional blood vials by police, with the lab technician's involvement, constituted an unlawful and warrantless seizure in violation of the applicant's s. 8 Charter rights, and this evidence was excluded under s. 24(2).

The court also found that the initial arrest for impaired operation lacked reasonable and probable grounds, but this did not lead to the exclusion of the statements.

The search warrant for medical records was upheld as valid.

Mid-trial ruling in a first degree murder prosecution concerning the admissibility of a police-prepared composite surveillance video compiled from approximately 84 hours of footage from multiple locations.

The court held the composite itself was admissible because it reproduced otherwise admissible raw videos without alteration and provided a useful chronology of events.

Applying the law governing videotape evidence, demonstrative evidence, and expert opinion, the court excluded circles, subtitles, commentary, and business labels as hearsay-laden and unfairly prejudicial.

The court admitted the running time clock evidence, but only with modifications to reflect a two-minute margin of error and to remove potentially misleading inserts and seconds.

The plaintiff, Tracey Kanak, sued her former manager, Darryl Riggin, for defamation based on statements made during a job reference.

The plaintiff alleged malice, while the defendant pleaded qualified privilege and denied malice.

The court found the statements defamatory but concluded they were made on an occasion of qualified privilege.

The plaintiff failed to prove malice, as the defendant's testimony was credible and his statements were honest and not reckless.

The court also dismissed the plaintiff's alternative claims (breach of contract, intentional interference, infliction of emotional distress, invasion of privacy) as they were deemed "dressed up" pleadings of defamation, resting on the same impugned publications.

The action was dismissed in its entirety.

The appellant, Nishan Minhas, appealed his convictions for impaired driving and "over 80" stemming from a RIDE checkpoint stop.

He alleged multiple Charter violations by the police officer, including errors in credibility assessment, acceptance of impairment evidence, handling of mouth alcohol, and the timing of the approved screening device demand relative to the right to counsel.

The Superior Court of Justice dismissed the appeal, affirming the trial judge's findings.

The court found no errors in the trial judge's credibility assessments, the reliability of the impairment indicia, or the handling of the mouth alcohol issue.

Crucially, the court held that the brief delay in providing the right to counsel during the roadside investigation, including the approved screening device test, was a reasonable and demonstrably justified limit under section 1 of the Charter.

The applicant wife sought summary judgment on various family law claims, including access, retroactive child support, retroactive section 7 expenses, and adjustments for a joint line of credit.

The parties resolved ongoing child support and equalization.

The court dismissed the wife's motion for summary judgment on access, finding a genuine issue for trial and requesting the involvement of the Office of the Children's Lawyer.

The court adjudicated the financial issues, imputing income to the husband for a period of incarceration and determining his share of retroactive child support and section 7 expenses, and the amount owed for the joint line of credit.

The accused, B.W., was charged with sexual interference under section 151 of the Criminal Code involving the complainant, S.L., who was under 16 years of age.

The alleged incidents occurred in a church basement between 2000 and 2007.

The Crown relied on S.L.'s testimony and a written 'confession' letter from B.W. The court found significant reliability issues with S.L.'s evidence due to inconsistencies in her account of the incidents and disclosures, and credibility concerns with T.S., S.L.'s mother, particularly regarding her handling of the school disclosure and the circumstances surrounding the 'confession' letter.

The court concluded that the 'confession' letter was heavily influenced by T.S. and potentially linked to a financial demand.

Ultimately, the court was not satisfied beyond a reasonable doubt that B.W. committed the offence or that S.L. was sexually touched by anyone.

B.W. was acquitted.

The accused, a financial advisor, pleaded guilty to 19 counts of fraud totaling over $2.8 million, primarily against senior citizens who were his trusted clients.

The court considered aggravating factors such as the magnitude, complexity, duration, number of victims, significant impact on victims, and breach of trust.

Mitigating factors included guilty pleas and expressed desire to repay.

General deterrence and denunciation were identified as primary sentencing principles for large-scale frauds.

The court imposed a sentence of 7 years' imprisonment, a restitution order for the defrauded amounts, a fine in lieu of forfeiture, and a prohibition order from managing others' property.

The plaintiff, Wawanesa Mutual Insurance, brought a motion to compel several defendants (corporate entities, Vishnu Lootawon, Jonathan Lootawon, Tina Lootawon, and Wayne Russell) to disclose particulars of their insurance policy and to compel attendance at examinations for discovery.

The motion arose from a subrogated action following an alleged motor vehicle accident.

The court found that Vishnu Lootawon's conduct during his examination for discovery was improper, with evasive answers and refusal to produce relevant documents.

Jonathan and Tina Lootawon failed to attend their scheduled examinations.

The court granted the plaintiff's requests, ordering the defending defendants to provide sworn affidavits of documents, produce relevant documents, disclose insurance policies, and comply with discovery obligations.

Vishnu Lootawon was ordered to re-attend discovery at his own expense, and Jonathan and Tina Lootawon were ordered to attend discovery.

Costs were awarded to the plaintiff against Vishnu, Tina, and Jonathan Lootawon.