SCJ 2017

The accused pleaded guilty to fraud, using a forged document, and obtaining credit under false pretences, defrauding four vulnerable individuals and Ontario Works of over $66,000 to fuel a prescription drug addiction.

The Crown sought 18 months of true incarceration, while the defence sought a 24-month conditional sentence.

The court weighed the aggravating factors, including the devastating impact on the victims, against mitigating factors such as the guilty plea, lack of prior record, and successful rehabilitation efforts.

The court imposed a 24-month conditional sentence, followed by three years of probation, and issued a standalone restitution order for the full amount.

The applicant sought a stay of proceedings under section 11(b) of the Charter, relying on R. v. Jordan.

The total delay from charge to decision was 34.5 months, exceeding the 30-month presumptive limit for Superior Court cases.

The court found the case to be complex due to numerous underage complainants and counts, and some complainants residing outside Ontario, which justified the lengthy preliminary hearing.

Crown counsel demonstrated reasonable reliance on the pre-Jordan legal framework, and defence counsel raised delay concerns only at a very late stage, after closing arguments.

The court concluded there was no unreasonable delay or disregard for the accused's rights under the former regime, and the complexity and transitional nature of the case constituted exceptional circumstances.

The application for a stay was dismissed.

The Crown applied to have the respondent declared a Dangerous Offender following his convictions for criminal harassment, mischief, and breach of a Long-Term Supervision Order.

The respondent had a lengthy history of stalking and harassing former intimate partners.

The court found that the criminal harassment convictions constituted serious personal injury offences, as they caused severe psychological damage to the victim.

The court declared the respondent a Dangerous Offender, imposing a determinate global sentence of 6 years (reduced to 2.5 years after pre-trial custody credit) and a 10-year Long-Term Supervision Order.

Postmedia Network Inc. applied to lift a sealing order on an Information to Obtain (ITO) related to a police investigation into Elizabeth Wettlaufer, who faced multiple murder and assault charges.

The Crown and counsel for the accused opposed the application.

The court applied the Dagenais-Mentuk test, finding that much of the redacted "Incriminating information" in the ITO posed a serious risk to the accused's fair trial rights, which could not be mitigated by alternative measures due to the national media attention and highly prejudicial nature of the information (e.g., confessions, DNA evidence).

While acknowledging the impact on freedom of the press, the court determined that the temporary sealing, with a further redacted version immediately accessible and a complete un-redacted version to be released after trial, balanced these rights.

The application to lift the sealing order was dismissed, but the existing order was varied to un-redact certain passages as detailed in Schedule A.

This decision addresses costs in a long-standing family law dispute involving custody, access, and child support.

The respondent's motion to change custody and access was dismissed by consent, and support issues were resolved after the respondent provided complete financial disclosure, which had been significantly delayed.

The applicant was substantially successful on custody and access, and the final agreement largely mirrored the applicant's settlement offers.

The court found the respondent caused delays, particularly in financial disclosure, and awarded the applicant $10,000 in costs, including GST/HST and disbursements.

The defendants brought a motion seeking the production of the plaintiff's adverse cost insurance policy (ACP) during discovery.

The plaintiff resisted, arguing that only particulars of the policy were required and that the policy itself was not relevant to the issues in dispute.

The court, interpreting Rule 30.02(3) of the Rules of Civil Procedure, held that the rule mandates disclosure and production for inspection of any insurance policy that may indemnify a party for money paid in satisfaction of a judgment, including an ACP, regardless of its direct relevance to the substantive issues of the action.

The motion was granted, and the plaintiff was ordered to produce the policy.

During an ongoing family law trial, the self-represented applicant brought motions seeking to adduce new expert appraisal evidence, add several new parties, obtain further documentary production, and consolidate a Small Claims Court action.

The court dismissed all the motions, finding that the requests were brought far too late and would cause incurable prejudice to the respondent.

The court also noted that several of the requests had already been dismissed by another judge prior to trial and were therefore res judicata.

The applicant, Irina Gordon, brought a s. 11(b) Charter application alleging a violation of her right to be tried within a reasonable time.

The total delay from arrest to the anticipated end of trial was 33 months and 3 days, exceeding the 30-month presumptive ceiling set by R. v. Jordan.

However, the court deducted 6 months and 2 days attributable to defence waiver, bringing the net delay to 27 months and 1 day, which is below the Jordan ceiling.

The court found that the defence failed to demonstrate meaningful steps to expedite proceedings.

Furthermore, as a transitional case, the Crown satisfied the court that the delay was justified based on reasonable reliance on the pre-Jordan law (R. v. Morin guidelines), under which the actionable delay was less than the 18-month guideline.

The application was dismissed.

Wittington Properties Limited applied for declarations that GoodLife Fitness Centres Inc. had lost its right to extend a lease due to ongoing breaches related to gross revenue reporting and a competition provision.

GoodLife brought a cross-application for declarations affirming its right to extend the lease and, in the alternative, relief from forfeiture.

The court found GoodLife was in default of the lease regarding both gross revenue reporting and the competition provision, and that GoodLife had not proven its breaches were de minimis or that Wittington had waived its rights or acted in bad faith.

Consequently, the court declared GoodLife had no right to extend the lease and ordered vacant possession.

Abdirizak Ibrahim Jama sued National Bank for $72,000, alleging that the bank's failure to dispense funds from ATMs in Ethiopia led to his luggage being seized and him having to flee the country.

Both parties brought motions for summary judgment.

The court found that the National Bank was not liable for the alleged ATM failures, as liability would rest with the merchant banks operating the ATMs.

Furthermore, the court concluded that there were no failed currency withdrawals, but rather unsuccessful attempts due to exceeding daily limits, insufficient funds, or incorrect PIN entries.

Even if failures occurred, the claimed damages were deemed too remote and not reasonably foreseeable under contract law principles (Hadley v. Baxendale).

The National Bank's motion for summary judgment was granted, and Mr. Jama's action was dismissed.

The applicant, Anton Dokaj, moved for a directed verdict of acquittal on charges of drug trafficking, firearm offences, and possession of proceeds of crime.

The Crown alleged constructive joint possession of drugs and a firearm found in an apartment unit and a vehicle, and aiding or abetting in drug transactions.

The court reviewed the circumstantial evidence, including Dokaj's identification found in the apartment, his driver's license in a related vehicle, his association with co-accused Basha, and his presence at the apartment building.

Applying the standard for a directed verdict, the court found that the evidence, if believed, could reasonably support an inference of Dokaj's constructive joint possession and aiding or abetting.

The motion for a directed verdict of acquittal was dismissed.

The plaintiffs challenged the validity of Constantin Birtzu's 2006 will, alleging lack of testamentary capacity and undue influence by his daughter, Constance McCron, who was the sole beneficiary.

They also sought a constructive trust over property and an accounting of assets.

The court found the action statute-barred due to the expiration of the limitation period.

Despite this, the court proceeded to address the merits, finding that the defendants successfully proved testamentary capacity and that the plaintiffs failed to prove undue influence.

The court upheld the 2006 will and dismissed the action.

The Crown brought a pre-trial motion to determine the admissibility of ante mortem statements made by the deceased, Jessica Scanlon, to her sister, friend, and boyfriend, in a first-degree murder trial against Jeremy Gough.

The statements concerned the nature of Scanlon's relationship with Gough, their separation, and Gough's reaction.

The court found the statements relevant and material to Gough's state of mind, Scanlon's state of mind, and motive.

Applying the principled exception to the hearsay rule, the court found the statements met the necessity and threshold reliability criteria, noting that most were recorded text messages and corroborated by multiple recipients available for cross-examination.

The court also determined that the probative value of the statements outweighed their minimal prejudicial effect, making them admissible.

The Attorney General of Canada brought a motion to set aside a Summons to Witness served by Farhad Derakhshan on Sonia Dion, an employee of Public Works and Government Services Canada.

The grounds for the motion were that Ms. Dion was unlikely to provide relevant and material evidence, the evidence sought was not within her personal knowledge, and the summons constituted a "fishing expedition" and an abuse of process.

The court granted the motion, finding that Derakhshan failed to demonstrate that Ms. Dion possessed relevant evidence concerning the purported fraudulent transfer of shares, which was the central issue Derakhshan sought to address through her testimony.

In the midst of a family law trial, the applicant served a Summons to Witness on an Area Director at the Canada Revenue Agency (CRA) to verify the respondent's tax filings and provide expert evidence.

The Attorney General of Canada brought a motion to set aside the summons.

The court granted the motion, finding that section 241 of the Income Tax Act strictly prohibits the disclosure of taxpayer information.

Furthermore, the applicant failed to demonstrate that the summonsed witness had any relevant or material evidence, and improperly sought to compel a government official to act as an expert auditor.

Two cottage associations, Trout Lake Campers’ Association and The Surprise Lake Campers’ Association, sought leave to intervene in an application by Rock Solid Holdings Inc. for a declaration regarding zoning for a gravel pit.

The court dismissed the motion for leave to intervene, finding that while the associations had an interest in the subject matter and could be adversely affected, their interests were adequately represented by the Lakehead Rural Planning Board, and their intervention would unduly delay the main application.

The court emphasized the narrow scope of the main application, which concerned only the zoning bylaw and historical use.

The defendants brought a motion to set aside a noting in default against them in a construction lien action and sought leave to file a Statement of Defence and Counterclaim.

The plaintiff had noted them in default without prior notice, despite ongoing communications between counsel.

The court granted the defendants' motion, finding they met the two-part test for setting aside default by acting promptly and providing evidence of a good defence.

The court also noted that the plaintiff's counsel's conduct, in failing to notify of the default, offended principles of advocacy and civility.

The applicant, Aryann Shalini Maharaj, sought full indemnity costs of $56,386.43 following an 11-day trial on custody, access, and property issues, alleging the respondent, Lincoln Wilfred-Jacob, acted unreasonably and in bad faith.

The respondent argued for no costs or minor costs due to financial burden.

The court, applying Family Law Rules 18 and 24, found the applicant was largely successful in the underlying trial but neither party's conduct amounted to bad faith, though the respondent acted more unreasonably.

Considering the complexity, the respondent's conduct in delaying the case, and proportionality, the court awarded the applicant $40,000 in all-inclusive costs.

This endorsement addresses two issues arising from a case conference in a class action: whether the defendant should disclose its process for identifying class members, and the appropriate cut-off date for class membership.

The court declined to compel disclosure of the defendant's identification process, relying on counsel's undertaking to provide an accurate list, but allowed for future disclosure if disputes arise.

The court determined that the cut-off date for class membership should be the date notice is given to class members, approximately five months after certification, to ensure broader inclusion.

Due to mixed success on the issues and late filings by both parties, no costs were awarded for the attendance.

The accused, charged with first-degree murder, brought a pre-trial motion concerning the admissibility of and testimony about two police-prepared PowerPoint presentations containing video clips of a vehicle and an unidentified male.

The court ruled the presentations admissible for efficiency and organization, but restricted the police officer's testimony regarding lay opinion evidence on vehicle identification.

The officer could testify to factual observations and reasons for selection, but not offer an opinion on whether vehicles matched or were the same.

Video clips of the unidentified male were deemed relevant circumstantial evidence and admissible.

The court also allowed the use of annotations in the presentations and directed mid-trial instructions to the jury.