SCJ 2018

The plaintiff sued for unpaid costs and a management fee related to a home renovation project.

The Master found a cost-plus contract existed but denied the management fee, awarding the plaintiff $31,556.

The plaintiff brought a motion under Rule 54.09 opposing the confirmation of the Master's report.

The Superior Court found the Master made a palpable and overriding error in concluding a contract existed, as there was no meeting of the minds on essential terms.

The court set aside the Master's report and awarded the plaintiff $106,060.19 on a quantum meruit basis for services rendered.

During a trial concerning the authenticity of a Norval Morrisseau painting, the intervenors brought a motion to qualify an art appraiser as an expert witness.

The plaintiff objected based on the proposed expert's lack of academic credentials, past business dealings with an intervenor, and the inadequacy of his expert report.

The court found that the appraiser's 43 years of industry experience was sufficient for qualification and that his past business dealings did not undermine his impartiality.

However, the court refused to qualify the expert because his one-page report was merely a conclusory certificate lacking methodology or reasoning, and it was served the day before his testimony, which would cause unfair surprise and prejudice to the plaintiff under Rule 53.03.

The offender was convicted of sexual assault, sexual interference, sexual exploitation, threatening bodily harm, common assault, and assault with a weapon against his stepdaughter over a six-year period.

The court found the offender was in a position of trust and that the aggravating factors, including the prolonged nature of the abuse and threats of violence, outweighed the mitigating factor of having no prior record.

Applying the Kienapple principle, the sexual interference charge was stayed.

The court imposed a global penitentiary sentence of 8 years, emphasizing denunciation, deterrence, and separation from society, along with ancillary orders including a 20-year SOIRA order and a 10-year weapons prohibition.

The plaintiff, a dental office employee of 7.5 years, sued for wrongful dismissal after being terminated without notice.

The defendant dentists alleged just cause, claiming the plaintiff falsified work hours and manipulated surveillance cameras.

The court found no reliable evidence of fraud or dishonesty, concluding the plaintiff was wrongfully dismissed.

The court awarded 8 months' pay in lieu of notice but declined to award aggravated or punitive damages, finding the employer's conduct during termination was not unduly insensitive or in bad faith.

The defendant insurer brought a motion to compel the plaintiff to answer undertakings given during examinations for discovery.

The plaintiff brought a cross-motion seeking production of the police investigation file related to an arson charge against her that was later withdrawn.

The court ordered the defendant to produce the police file and its investigator's file, as they were relevant to the plaintiff's claim for punitive damages.

The court also ordered the plaintiff to answer undertakings regarding the sale price of her home and the name of a doctor who treated her for a brain injury, but found other requested information irrelevant.

Costs of $3,000 were awarded to the plaintiff.

The appellant appealed his summary conviction for 'over 80', arguing the trial judge erred in dismissing his Charter applications under s. 10(b) and s. 11(b).

The appellant claimed his right to counsel was violated because police did not offer a Spanish interpreter, and that his trial was unreasonably delayed beyond the 18-month Jordan ceiling.

The Summary Conviction Appeal Court dismissed the appeal, finding no 'special circumstances' required police to offer an interpreter as the appellant communicated effectively in English.

The court also upheld the s. 11(b) ruling, agreeing that the delay was justified by exceptional circumstances, primarily the gross underestimation of trial time and the expanding defence witness list.

The accused brought an application seeking a stay of proceedings under s. 11(b) of the Charter, arguing that the delay of 56 months from the date charges were laid exceeded the 30-month presumptive ceiling established in Jordan.

The court deducted 559 days of appellate delay related to a Crown certiorari application and appeal, as well as periods of defence delay and waiver.

The net delay was calculated at 28.5 months, which fell below the presumptive ceiling.

The court found that the defence failed to meet its onus to demonstrate that the delay was unreasonable, noting that the defence's conduct contributed to the delay.

The application for a stay was dismissed.

The defendants sought costs of two motions on a partial indemnity scale against the plaintiff, and also sought costs personally against the plaintiff's former legal counsel under Rule 57.07(1) of the Rules of Civil Procedure.

The court awarded costs to the defendants against the plaintiff, finding the amounts claimed reasonable.

However, the court dismissed the claim for costs against the plaintiff's former lawyers, finding their conduct did not meet the high threshold for personal liability.

The defendants were ordered to pay $1,500 in costs to the plaintiff's former lawyers for successfully defending the claim against them.

The plaintiffs obtained an ex parte Mareva injunction freezing the defendants' assets based on allegations of unpaid loans and fraudulent conveyance of proceeds from the sale of a house.

On the motion to continue the injunction, the plaintiffs sought to introduce new evidence obtained through the ex parte order.

The court refused to admit the new evidence, holding that a motion to continue is a hearing de novo where the responding party can test the original record.

The court found the original record insufficient to establish a strong prima facie case or a serious risk of dissipation against the defendant daughters, and terminated the injunction against them.

The appellant appealed his summary conviction for impaired driving, arguing that the trial judge misapprehended the evidence and reached an unreasonable verdict regarding his identity as the driver at a restaurant drive-thru.

The Summary Conviction Appeal Court dismissed the appeal, finding that the trial judge made no errors in assessing the identification evidence and that the guilty verdict was entirely reasonable based on the overwhelming circumstantial evidence.

The applicant mother brought a motion to change a final consent order, seeking recalculated spousal support, child support, and section 7 expenses for 2015, 2016, and 2018.

The parties reached a partial consent agreement regarding ongoing child support and section 7 expenses.

The court determined the parties' incomes and calculated the arrears and overpayments.

The court found the father underpaid child support and section 7 expenses, but overpaid spousal support.

The mother was ordered to repay the spousal support overpayment in monthly installments.

In a trial for possession of oxycodone for the purpose of trafficking, the Crown brought an application to adduce expert handwriting evidence from a Centre of Forensic Sciences employee.

The expert concluded that the accused probably wrote portions of debt lists seized by police.

The defence opposed the application, arguing the evidence was more prejudicial than probative and lacked sufficient reliability.

The court applied the Mohan framework and found the evidence logically and legally relevant, necessary, not subject to an exclusionary rule, and proffered by a properly qualified expert.

The Crown's application was granted and the expert evidence was ruled admissible.

The defendant, a criminal defence lawyer, brought a motion to dismiss the plaintiff's civil action for professional negligence as an abuse of process.

The plaintiff had been convicted of criminal offences, and his appeals, which included allegations of ineffective assistance of counsel against the defendant, were dismissed.

The court found that allowing the civil action to proceed would require re-litigating the criminal convictions and finding them incorrect, constituting an impermissible collateral attack.

However, noting the plaintiff's new evidence, the court stayed the action rather than dismissing it, pending a successful review of the convictions under the Criminal Code.

The applicant brought a motion for contempt and amendments to the parenting schedule, alleging the respondent breached a final order and communicated abusively.

The respondent alleged the applicant breached the order and sought a week-about schedule.

The court found the breaches stemmed from a misunderstanding of the schedule's implementation and declined to find contempt, though it noted the respondent's communications were at times derogatory.

The parties consented to a 'swear jar' order.

The court clarified the existing schedule rather than amending it.

As success was mixed and judicial intervention was necessary, the court ordered each party to bear their own costs.

The applicants, engaged in combating government corruption in Malaysia, sought a Norwich Pharmacal order to compel financial institutions to produce confidential information about a Canadian real estate group.

The applicants suspected the group was funded by proceeds of foreign corruption and contemplated a private criminal prosecution for money laundering and receipt of proceeds of crime.

The court dismissed the application, holding that the applicants lacked reasonable grounds to believe an indictable offence had been committed, and that it would be inappropriate to use the court's inherent civil jurisdiction to bypass the careful balance struck by Parliament in the Criminal Code for criminal investigations and private prosecutions.

The defendant brought a motion for an extension of time to deliver a jury notice after the close of pleadings in an action arising from a denial of travel insurance coverage.

The failure to deliver the notice was due to the inadvertence of the defendant's original counsel.

The court granted the motion, finding that the delay was not unconscionable and that the plaintiff suffered no prejudice, as discoveries are fact-finding and no trial preparation had yet taken place.

The applicant sought to exclude evidence obtained during a search of his residence, arguing that the search warrant was invalid due to deliberate misrepresentations and omissions in the Information to Obtain (ITO).

The court found that the affiant deliberately misled the issuing justice regarding the confidential informant's criminal history, motivation, and the corroborative police observations.

After excising the inaccurate information, the court concluded that the remaining ITO was not sufficiently reliable to support the warrant, resulting in a breach of the applicant's s. 8 Charter rights.

Applying the Grant framework, the court excluded the evidence under s. 24(2) of the Charter due to the serious nature of the police misconduct.

The applicant sought a declaration of ownership by adverse possession over a narrow strip of backyard land enclosed by a long-standing fence between neighbouring residential properties.

The court held that the applicant and his predecessors had established actual possession, intention to exclude, and discontinuance of possession by the true owner for the statutory period before conversion to land titles.

The court treated the case as one of mutual mistake rather than knowing trespass, lowering the threshold for intention to exclude.

The application was granted and the land registrar was ordered to amend the parcel register accordingly.

The applicant children's aid society brought a motion to add the respondent father to a parenting capacity assessment that the mother and children were previously ordered to undergo as a condition of a supervision order.

The court dismissed the motion, finding it lacked jurisdiction under section 54(1) of the Child and Family Services Act because there was no active proceeding before the court, as the trial order was final and no status review application had been commenced.

The father's request for costs was also dismissed.

Applying the established principles for awarding costs against a society, the court found the society's conduct was not exceptional or patently unfair.

At the opening of a scheduled 7-week trial, the defendant insurer brought a motion for an adjournment due to the plaintiff's late disclosure of physical evidence and additional documents.

The plaintiff had disclosed the existence of particles and other physical evidence relevant to the cause of the equipment failure just weeks before trial.

The court found that it would be unjust to force the defendant to proceed without an opportunity to obtain expert advice and conduct further discovery on the newly disclosed evidence.

The motion for an adjournment was granted.