SCJ 2017

The respondent was successful on an application involving complex commercial tenancy issues and sought partial indemnity costs of $48,846.92.

The applicants argued for a reduced amount of $27,000, relying on the principle that costs should be fair and reasonable for the unsuccessful party to pay.

The court reduced the respondent's hourly rates by approximately 15 percent but found the time expended to be reasonable.

Applying the principles from Boucher and Rule 57.01(1), the court fixed costs payable by the applicants to the respondent at $42,047.70, inclusive of disbursements and HST.

The applicant mother brought a motion for temporary sole custody, retroactive child support, and contribution to special and extraordinary expenses.

The respondent father brought a cross-motion for shared parenting and set-off child support.

The court found that the father's history of controlling behaviour and failure to pay support weighed against joint custody.

The court granted temporary sole custody to the mother, expanded the father's access to 35% of the time, and ordered the father to pay retroactive child support, ongoing table support, and 50% of the children's section 7 expenses.

The defendant brought a motion to set aside an ex parte order granting a certificate of pending litigation (CPL) on a residential rental property.

The plaintiff had claimed a 50% shareholder interest in the corporate owner of the property but provided no documentary evidence.

The court found no triable issue regarding the plaintiff's interest in the property.

Furthermore, the court discharged the CPL on the grounds of material non-disclosure and misleading evidence presented by the plaintiff during the ex parte motion, specifically regarding an undisclosed caution and false claims of mortgage default.

Following the dismissal of the plaintiff's action for delay, the defendants sought costs of the action and motions on a partial indemnity scale.

The defendants also sought an order that the plaintiff's non-party principal be jointly and severally liable for the costs, as the plaintiff corporation was impecunious.

The court awarded costs against the plaintiff corporation but declined to order non-party costs against the principal, finding no evidence of fraud, gross misconduct, or abuse of process that would justify such an exceptional remedy.

The plaintiffs brought a motion to compel answers to refusals from the examination for discovery of the defendant insurer's representative.

The underlying action involved a marine insurance claim for contaminated fish, which the insurer denied based on a process exclusion clause.

The Master ordered the insurer to make reasonable inquiries of a former underwriter and to answer questions about similar claims.

However, the Master refused to order production of a legal opinion obtained by the insurer, finding it was protected by solicitor-client privilege and that no waiver had occurred.

The defendant general contractor brought a motion for summary judgment to dismiss the plaintiff subcontractor's $11.1 million delay claim, arguing the plaintiff failed to provide strict contractual notice of the delay.

The plaintiff argued that the defendant had actual notice and that strict compliance was not required given the surrounding circumstances.

The court dismissed the motion, finding that the issues of notice, credibility regarding backdated letters, and the complex factual matrix of the construction delay raised genuine issues requiring a full trial.

The applicant law firm sought an order to refer its account to assessment more than 12 months after delivery.

The applicant had represented the respondent in a personal injury claim before the respondent changed counsel.

The new counsel acknowledged an instruction to protect the applicant's account from settlement proceeds but failed to notify the applicant when the matter settled or pay the account.

The court found these constituted special circumstances under the Solicitors Act, allowing the assessment to proceed, and awarded substantial indemnity costs against the respondents.

During a criminal trial, the defence sought to introduce Telus cell phone records as a numbered exhibit during the cross-examination of a Wind Mobile employee.

The Crown objected, arguing the witness could not act as a conduit for records from a different company.

The court allowed the records to be marked as an exhibit, finding them relevant and sufficiently authentic under section 30 of the Canada Evidence Act.

However, the court ruled that the witness could not be questioned on the contents of the Telus records, as she lacked personal knowledge of them.

During a criminal trial for a shooting death, the court issued written reasons for several oral evidentiary rulings.

The court ruled that the defence could not elicit self-serving admissions from a Crown witness during cross-examination.

The court allowed two photographs to be entered as numbered exhibits, finding them relevant and authenticated.

The court permitted the Crown to re-examine a witness regarding phone numbers to clarify answers given in cross-examination, but denied re-examination on the circumstances of an identification, finding it more prejudicial than probative.

Finally, the court prohibited the defence from introducing investigative hearsay about a third-party suspect without a proper voir dire.

During a sentencing hearing, defence counsel objected to portions of several victim impact statements and requested that the offending portions be excised before the statements were received.

The court declined to redact the statements in advance, ruling that pursuant to s. 722(8) of the Criminal Code, the statements would be provisionally accepted and the court would disregard any irrelevant or inadmissible portions.

The court also provided directions on the order of proceedings for the remainder of the sentencing hearing.

In a final decision following a family law trial, the court determined the ongoing calculation of child support.

The applicant sought to impute income to the respondent for a period of unemployment.

The court held that a material change in circumstances was not required to adjust support because no final order had been made.

The court declined to impute income, finding the respondent was not intentionally underemployed and had conducted an extensive job search.

Ongoing support was set based on the respondent's new employment income.

During a sentencing hearing for manslaughter, the offender filed an affidavit seeking enhanced credit for harsh pre-sentence custody conditions.

The Crown sought to cross-examine the offender 'at large' to elicit aggravating factors, arguing section 724(3)(c) of the Criminal Code does not limit cross-examination.

The court dismissed the Crown's request, ruling that statutory interpretation requires reading the provision in context, which limits cross-examination to the specific contested fact of the jail conditions.

In a murder trial, the Crown applied to exclude references to the name 'CJ' from the deceased's phone records, arguing the evidence was irrelevant and hearsay.

A co-accused also sought to redact text messages involving 'Scarface' on similar grounds.

The court dismissed the applications, finding the evidence relevant to the live issue of DNA transfer and identification.

The court held that the admission of the contact list and text messages engaged issues of authentication rather than hearsay, as they were not being adduced for the truth of their contents but to determine whether the communications were actually made by the accused.

During a criminal trial, the Crown sought leave to communicate with its witness, a cell phone security analyst, while she was still under cross-examination.

The defence had pointed out a geographical and temporal discrepancy in the cell phone records, and the Crown wished to direct the witness to investigate the discrepancy.

The court granted leave, noting that the witness was providing factual evidence about the operation of the network and that investigating the discrepancy would prevent further delay.

During a jury trial, the Crown sought to file a DNA expert's written report as an exhibit after the expert had already provided viva voce evidence.

The defence objected, arguing the report was prejudicial.

The court dismissed the Crown's request, ruling that the report was inadmissible because it added nothing to the oral testimony, contained matters not explored in evidence, and risked misleading or confusing the jury.

The court emphasized that the expert's evidence is their testimony, not their report.

The accused were jointly charged with first-degree murder.

During pre-charge conferences, the Crown and defence counsel raised several issues regarding the jury instructions.

The court declined the Crown's request to leave section 21(2) of the Criminal Code and unlawful confinement under section 231(5)(e) as routes to liability, finding insufficient evidence to support those theories.

The court also dismissed defence requests to remove planning and deliberation or section 229(a)(ii) intent from the charge for one of the accused, finding sufficient circumstantial evidence for the jury to consider.

Further defence requests for a specific identification instruction and modifications to the summary of eyewitness testimony were also dismissed.

During a criminal trial, the Crown sought to adduce opinion evidence from a police officer that clothing worn by a male in a surveillance video resembled clothing she had previously observed the accused wearing.

The defence objected, arguing the officer was in no better position than the jury to make this comparison.

The trial judge reconsidered and reversed an earlier ruling, holding that the officer's opinion was not helpful to the trier of fact and was more prejudicial than probative.

The jury, equipped with the video as real evidence, could make the comparison themselves without the officer's narration or opinion.

During a first degree murder trial, the Crown sought to introduce evidence that the accused had been in custody for two years prior to the murder.

The Crown argued this evidence was necessary to prove the accused did not have access to a cell phone during that time, thereby refuting a potential defence claim that the accused was a contact in the deceased's phone.

The defence offered to admit the accused was 'out of the area' without cell phone access for two months.

The court held that the extended two-year period of non-access was irrelevant.

Furthermore, the court ruled that even if relevant, the prejudicial effect of revealing the accused's prior incarceration to the jury outweighed its probative value, and prohibited the Crown from leading the evidence.

The accused were on trial for first degree murder.

During the trial, the defence filed a section 24(1) Charter application alleging a breach due to the Centre of Forensic Sciences consuming a 'negative control' sample during DNA testing.

The Crown sought directions, arguing the court should determine the relevancy of the consumed sample before the Crown's DNA expert testified, and restrict cross-examination if relevance was not established.

The court dismissed the Crown's request, holding that the defence was entitled to cross-examine the expert on the DNA extraction process, including the use and consumption of the negative control.

The court deferred ruling on the Charter application until the end of the trial, when the full evidentiary record would allow for a proper assessment of prejudice.

During a criminal trial, the accused sought to introduce the contents of text messages from cell phone records to show he was not the user of a specific phone number, arguing the messages were circumstantial evidence and not hearsay.

The Crown objected.

The court held that the text messages were implied assertions being tendered for the truth of their contents, and therefore constituted presumptively inadmissible hearsay.

The court further found that the messages did not meet the criteria of necessity and reliability under the principled exception to hearsay, as they were devoid of context and the declarants were unavailable for cross-examination.

The application to instruct the jury on a non-hearsay use was dismissed.