SCJ 2017

The offenders were convicted of fraud over $5,000 in relation to a large-scale mortgage fraud scheme involving properties owned by the elderly father of one of the offenders.

The total loss to the title insurer was over $3.3 million.

The Crown sought three-year prison sentences and a restitution order against the son.

The court found that both offenders were suitable candidates for conditional sentences, imposing terms of two years less a day with house arrest and curfew conditions.

The court declined to order restitution against the son due to his destitution and subservient role, but imposed fines in lieu of forfeiture against both offenders based on the specific fraudulent funds they had possessed or controlled, giving them 20 years to pay.

The accused was charged with common assault, assault with a weapon, possession of stolen property, break and enter, and possession of break-in instruments following two incidents on the same morning.

The first incident involved a break and enter at a residence where property was stolen.

The second incident involved the accused breaking into a pickup truck, where he was confronted by the owner, leading to a physical altercation involving a knife.

The court rejected the accused's testimony as not credible, applied the doctrine of recent possession, and found the accused guilty on all counts.

The police defendants in a civil action arising from a criminal sexual assault acquittal moved to seal materials filed in support of their summary judgment motion.

The media sought intervenor status to oppose the sealing order.

The court granted the media intervenor status and dismissed the motion to seal, finding the police defendants failed to meet the Dagenais/Mentuck test to overcome the open court principle.

The court confirmed the criminal publication ban protecting the complainant's identity remained in force and ordered the use of initials in pleadings.

The applicant brought a s. 8 Charter application seeking to exclude 141 grams of cocaine seized during a warranted search of his residence and vehicle.

He argued the Information to Obtain (ITO) lacked sufficient grounds as it relied on unproven confidential informants and omitted their criminal records.

The court found the tips from three known informants were compelling, credible, and corroborated by police investigation.

The omission of the informants' criminal records was not material as they did not contain crimes of dishonesty.

The court concluded the warrant was properly issued and there was no s. 8 breach.

Alternatively, the court held the evidence would be admissible under s. 24(2) of the Charter.

The application was dismissed.

The defendants' motion for summary judgment to dismiss a medical malpractice action based on a limitation period was previously dismissed.

The plaintiffs sought costs of the motion in the amount of $20,691.22, while the defendants argued costs should be reserved to the trial judge or fixed at $15,000 in the cause.

The court fixed the plaintiffs' costs at $18,700, inclusive of fees, HST, and disbursements.

Applying Rule 57.03(1) of the Rules of Civil Procedure, the court ordered the costs to be payable by the defendants within 30 days, rejecting the defendants' request to defer the costs to the trial judge.

Following a successful summary judgment motion where the plaintiff was awarded $153,241.40, the plaintiff sought full indemnity costs of $15,674.22 based on a contractual right.

The individual defendant argued costs should be fixed on a partial indemnity basis at $7,500.

Applying the principles from Boucher and Rule 57.01, the court found the plaintiff's hours slightly excessive for the complexity of the matter and fixed costs at $10,500.00, payable jointly and severally by the defendants.

The moving party defendants brought a motion to settle a previous order, fix a timetable, and order reciprocal property inspections.

The court found that the reciprocal inspections had already been consented to in a prior order and through undertakings, and ordered them to proceed.

The court also addressed the costs of a previous motion, finding divided success and ordering that each party bear their own costs.

The defendant brought a motion to stay the plaintiff's action, arguing that New Brunswick, not Ontario, was the proper jurisdiction.

The plaintiff, an Ontario corporation, sued the defendant for breach of contract and wrongful misappropriation arising from a transportation agreement and unpaid invoices.

The court applied the Van Breda test and found that the defendant was domiciled or resident in Ontario, carried on business in Ontario, and the contract was likely made in Ontario.

The court concluded there was a real and substantial connection to Ontario and the defendant failed to demonstrate that New Brunswick was a clearly more appropriate forum under the doctrine of forum non conveniens.

The motion was dismissed.

The applicant sought certiorari to quash his committal to stand trial on charges of robbery and disguise with intent.

The Crown's case relied on DNA evidence found on two pieces of clothing used as a disguise, which were discovered near the scene of the robbery shortly after it occurred.

The applicant argued that without proof of when the DNA was deposited, there was insufficient evidence to commit him.

The reviewing judge dismissed the application, finding it was open to the preliminary inquiry judge to conclude there was sufficient evidence upon which a reasonable jury could convict.

The accused, charged with second degree murder, brought an application for a stay of proceedings under s. 11(b) of the Charter, arguing unreasonable delay.

The total delay was 44.5 months.

After deducting defence delay and delay caused by exceptional circumstances—including unexpectedly lengthy pre-trial motions and an interlocutory appeal to the Supreme Court of Canada by Crime Stoppers regarding informer privilege—the net delay fell below the 30-month presumptive ceiling established in Jordan.

The application for a stay was dismissed.

The applicants, convicted of producing over 500 marihuana plants, brought a constitutional challenge against the two-year mandatory minimum sentence under s. 7(2)(b)(v) of the Controlled Drugs and Substances Act.

They argued the provision violated s. 12 of the Charter.

The court found that while the sentence was not grossly disproportionate for the applicants themselves, it was grossly disproportionate for reasonably foreseeable hypothetical offenders, such as those involved in regulatory licensing infractions.

The court concluded the provision violated s. 12, was not saved by s. 1, and declared it of no force or effect.

The offender was convicted of being an accessory after the fact to an armed robbery committed by her son, having disposed of a sweater he wore during the crime.

The Crown sought a 12-month sentence, while the defence requested a sentence of less than six months to preserve the offender's right to appeal a potential removal order under the Immigration and Refugee Protection Act.

The court applied a 1:1 credit for 157 days of pre-trial custody to avoid the draconian immigration consequences, sentencing the offender to one day in jail and 18 months of probation.

The mother sought sole custody of the parties' two children, alleging severe parental alienation by the father.

The father also sought sole custody.

The court found that the father had engaged in a campaign of denigration against the mother, inappropriately involved the children in adult financial disputes, and empowered the children to disrespect and reject their mother.

The court awarded sole custody to the mother and suspended the father's access pending his completion of the first phase of intensive therapy, finding that the father's alienating behaviour was severely detrimental to the children's best interests.

The respondent mother moved to set aside a temporary order for the sale of the jointly owned matrimonial home and support, relying on Rule 25(19) of the Family Law Rules.

She alleged that the applicant father had committed fraud by failing to fully disclose his income.

The court dismissed the motion, finding no evidence that the father knowingly or recklessly made false statements with wrongful intent, noting that temporary orders are based on evolving evidence and a different finding on a fuller record does not constitute fraud.

Following a successful motion by the plaintiffs to compel the defendants to answer undertakings and refusals, the court determined the appropriate costs award.

The plaintiffs sought $35,000 representing 70% of their full indemnity costs, while the defendants argued the parties should bear their own costs or pay $5,000.

The court found no basis to depart from the general rule that costs follow the event, but declined to award costs on a substantial indemnity scale as the defendants' conduct was not reprehensible.

The court fixed costs at $26,000 payable by the defendants to the plaintiffs.

Following a trial where the plaintiffs were unsuccessful in their will challenge, the court determined the issue of costs.

The court awarded costs to two non-party lawyers who testified at trial, payable out of the estate.

Applying the 'loser pays' principle, the court ordered the plaintiffs to pay the successful defendant's costs on a partial indemnity basis up to the date of a reasonable settlement offer, and on a substantial indemnity basis thereafter.

However, the court ordered $36,000 of the plaintiffs' discovery costs to be paid out of the estate, which was deducted from the costs payable to the defendant.

The plaintiff, a 40-year-old product manager with 19 months of service, brought a motion for summary judgment for wrongful dismissal.

The court found summary judgment appropriate and awarded nine months' notice plus 10% for benefits, totaling $78,333.40.

The notice period was at the high end of the range due to an onerous non-competition clause and the employer's failure to provide a reference letter.

The court also awarded $16,000 in costs, applying substantial indemnity consequences for beating a Rule 49 offer.

The respondent husband brought a motion for summary judgment to dismiss the applicant wife's claims for equalization of net family property and spousal support, relying on a marriage contract signed in 2005.

The wife brought a cross-motion to dismiss the summary judgment motion and to determine the date of separation.

The court found that the marriage contract's property releases were ambiguous and did not constitute an absolute bar to equalization, creating a genuine issue for trial.

Regarding spousal support, the court applied the Miglin framework and found that the wife's catastrophic and unforeseeable health and financial changes since the marriage contract was signed created a genuine issue for trial as to whether the agreement still met the objectives of the Divorce Act.

The court also found a genuine issue for trial regarding the date of separation due to conflicting evidence requiring credibility assessments.

The husband's motion for summary judgment was dismissed.

The offender was convicted of possession of cocaine and marijuana for the purpose of trafficking, and possession of a loaded restricted firearm.

He absconded prior to sentencing.

The court sentenced him in absentia to a global term of 7 years imprisonment.

The court awarded 23 months of pre-sentence custody credit, including time spent in custody on subsequent charges, finding that custody was attributable to the initial charges.

A request for credit for strict bail conditions was denied due to a lack of evidence and the offender's absconding.

The offender was convicted after trial of trafficking fentanyl and pleaded guilty to possession of cannabis and two counts of unauthorized possession of firearms.

The Crown sought a penitentiary sentence of 3.5 years.

The court found exceptional circumstances, including the offender's severe health issues, rehabilitation efforts, and the parity principle, given that the co-adjudicator received a significantly lighter sentence.

The court imposed a reformatory sentence of 15 months in custody followed by two years of probation.