SCJ 2018

The applicant's unjust enrichment claim was dismissed after a six-day family law trial.

The respondent sought costs, relying on an offer to settle made under Rule 18 of the Family Law Rules.

The court found the respondent was the successful party and that her offer to settle, which proposed paying the applicant $10,000 for dismissal of all claims without costs, was more favourable than the judgment.

Considering the reasonableness and proportionality of costs, the court awarded the respondent $38,652.45 in costs, inclusive of HST and disbursements, covering the period from the date of her offer.

The applicant's arguments regarding his financial position and health were not found to be a strong connection to the costs of the failed application.

On a motion for default judgment, the court held the former intimate partner liable for repeated assault and battery and for publicly disclosing a sexually explicit video of the plaintiff without her consent.

The court also held the former partner's parents liable in negligence under the Occupier's Liability Act for failing to take reasonable steps to protect the plaintiff from foreseeable abuse occurring in their home.

The court expressly recognized in Ontario the tort of public disclosure of private facts and applied it to non-consensual online publication of an intimate video.

General, aggravated, and punitive damages were awarded, together with injunctive relief requiring destruction of intimate materials and prohibiting further disclosure.

This endorsement provides reasons for four trial rulings made during a jury trial for manslaughter, where the accused were ultimately found not guilty.

The rulings addressed: (1) whether jurors could ask witnesses questions (denied, emphasizing the adversarial nature of criminal trials); (2) the Crown's re-examination of a witness on prior consistent statements (allowed to clarify a one-sided picture created during cross-examination); (3) the Crown's request to introduce bad character evidence against one accused (denied, as the defence had not put character in issue); and (4) the Crown's request for a specific jury charge on aiding and abetting related to a push by one accused (declined as speculative and unduly complex given the Crown's primary theory of a group beating).

The applicants sought a temporary stay of a Sending Order issued under section 15(1) of the Mutual Legal Assistance in Criminal Matters Act, requesting the imposition of terms and conditions to protect trade secrets and intellectual property.

The court dismissed the application, finding that the applicants failed to demonstrate a serious question to be tried or irreparable harm.

The court reiterated that the Act is a complete code for mutual legal assistance proceedings and that the existing treaty provides sufficient protection, thus precluding additional submissions to the Minister of Justice for further conditions.

The Applicant sought a temporary order for the children of the marriage to be placed in his care for 90 days, with no contact with the Respondent except as directed by a therapist, alleging parental alienation.

The Respondent opposed the motion.

The court considered whether the "material change in circumstances" test applied to a variation of a temporary, without prejudice order, ultimately accepting for the motion's purpose that the Applicant only needed to demonstrate the order was in the children's best interests.

The court dismissed the motion, finding the Applicant had not provided sufficient clear evidence, particularly noting issues with the admissibility and weight of the counsellor's reports as expert evidence without proper voir dire and cross-examination.

The appellant appealed his conviction for driving "Over 80," arguing the trial judge misapprehended expert toxicology evidence regarding the possibility of a rising blood-alcohol concentration (BAC) curve.

The expert testified that a hypothetical scenario where BAC was below 80 mg at the time of driving but rose to 90 mg by the time of testing was possible, though unlikely.

The Superior Court dismissed the appeal, finding that the trial judge accurately apprehended the expert's evidence and was not left with reasonable doubt, correctly viewing the hypothetical as a mere possibility not tied to the specific evidence of the appellant.

Following the dismissal of the applicant's habeas corpus application, the respondent Attorney General sought costs of $15,951.78.

The court noted that while costs can be awarded in habeas corpus applications relating to the administration of a lawful sentence, they must not become a roadblock to accessing the writ.

Given that the application required additional work due to the applicant's request for an adjournment to file further materials, the court fixed costs at $6,000 all inclusive.

This hearing confirmed a provisional order from the Supreme Court of Nova Scotia that varied spousal support.

The applicant sought to terminate spousal support, while the respondent requested refusal of confirmation or a variation to $900 per month.

The court confirmed the provisional order but varied it to nominal support of $1 per year, rather than complete termination, citing the long marriage and economic disadvantage to the respondent.

The court also ordered ongoing income disclosure between the parties.

The applicant sought a declaration of invalidity for the testator's 2007 will on grounds of lack of testamentary capacity and undue influence.

The court found suspicious circumstances regarding the 2007 will, shifting the burden of proof to the respondents.

It was determined that the testator lacked testamentary capacity when executing the 2007 will, leading to its invalidation.

The 2006 will was consequently restored as the true last will and testament.

The claim of undue influence was not established.

The court clarified the terms of an easement previously granted to Vivekanandan over Terzian's property.

The dispute centered on the precise description of the easement's southern boundary, specifically how it interacts with a "grassy area" at the northern end of the island.

The court adopted Vivekanandan's interpretation, ruling that the easement's southern boundary follows the diagonal line of the grassy island, rather than a squared-off line proposed by Terzian, to ensure the easement includes all intended paved areas.

The defendant, Juan Camilo Garcia Barbosa, was charged with aggravated assault and confinement following a physical altercation with the complainant.

The incident involved an argument over a cell phone, resulting in the complainant sustaining a mild spinal fracture.

The court assessed the complainant's credibility and reliability, noting significant inconsistencies in her testimony, including the omission of a choking allegation made to police and medical staff, and her post-incident contact with the defendant.

The court found that the Crown failed to prove the charges beyond a reasonable doubt due to these reliability concerns.

The respondent wife moved for interim spousal support following a short 10-month marriage.

The applicant husband had sponsored the wife for Canadian citizenship and conceded entitlement to support but failed to provide adequate financial disclosure.

The court imputed an annual income of $200,000 to the husband based on his lifestyle and undisclosed assets/corporate interests.

The court ordered the husband to pay $4,595.00 per month in interim spousal support, retroactive to the date of the Answer, and lump sum retroactive support to the date of separation, considering the immigration sponsorship undertaking and the wife's need.

The husband was also directed to produce the sponsorship agreement and immigration file.

The court ruled on a defence application for a mistrial and the probative value of after-the-fact conduct in an aggravated assault jury trial.

The defence sought a mistrial due to alleged improprieties in Crown counsel's closing address, specifically regarding the credibility of a Crown witness.

The defence also requested a "no probative value" instruction for the accused's flight and disposal of the firearm, arguing it was equally consistent with illegal firearm possession as with the aggravated assault.

The court dismissed the mistrial application, finding the Crown's comments on witness credibility, while concerning, could be remedied by jury instruction and did not impact the accused's credibility.

The court also denied the "no probative value" instruction for after-the-fact conduct, distinguishing the case from *R. v. Chambers* and finding the accused's flight disproportionate to the admitted firearm possession, thus allowing the jury to infer guilt regarding the shooting.

The plaintiffs brought a civil action arising from a pretrial detainee's placement in the same correctional unit as an inmate who had previously committed a violent home invasion against him.

The court held the Crown vicariously liable for correctional staff negligence extending beyond the admitted inmate-tracking error, including inadequate supervision, failure to protect, and degrading conduct by officers, and rejected contributory negligence and mitigation defences.

The court accepted the treating psychologist's evidence, rejected the defence psychological opinion, found serious and permanent psychological injury, and awarded substantial non-pecuniary, income loss, future care, special, and Family Law Act damages.

The court also found violations of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms and awarded separate Charter damages for vindication and deterrence.

The accused brought a s. 8 Charter application seeking to exclude drugs seized during his arrest, arguing the search warrant for his alleged residence lacked sufficient grounds.

The court found that while the redacted Information to Obtain (ITO) was deficient and resulted in a s. 8 breach, the accused's standing was based solely on the Crown's theory of residency, which he later disavowed at trial.

Applying the Grant framework under s. 24(2), the court concluded there was no police misconduct in obtaining the warrant and the breach was purely technical.

The application to exclude the evidence was dismissed.

The applicant company sought to fix the fair market value of common shares held by dissenting shareholders who opposed amendments to create convertible preferred shares.

The court rejected the applicant's liquidation approach to valuation, instead valuing the company as an ongoing concern using the discounted cash flow (DCF) method.

The court determined that a three-month time delay in the commencement of projected cash flows was appropriate, balancing the company's straightened financial circumstances with its ongoing viability.

The "en bloc" fair market value was fixed at $12,300,000, resulting in a per share value of $0.304.

The Superior Court of Justice dismissed an application due to the applicants' failure to advance the matter.

This endorsement addresses the respondent's request for costs.

The court considered factors under Rule 57.01 of the Rules of Civil Procedure, including the result, complexity, importance of issues, and the applicants' conduct.

The court found the motion to dismiss was straightforward but the underlying application involved serious unproven allegations against the respondent.

Given the respondent's success and the nature of the allegations, the court awarded fixed costs to the respondent on a joint and several basis.

The applicant sought to stay the enforcement of child support until his Motion to Change was determined.

The respondent brought a cross-motion seeking to strike the applicant's pleadings due to his non-payment of two previous cost orders.

The court dismissed the applicant's motion, finding he had the ability to pay costs but was refusing to do so, thereby attempting to circumvent prior court orders.

The court stayed the applicant's Motion to Change proceedings until all outstanding costs were paid in full, including those awarded in this motion.

The respondent was granted leave to bring a future motion to strike the applicant's pleadings if costs remained unpaid by a specified date.

Costs for this motion were awarded to the respondent and the Family Responsibility Office.

The appellant, Warren Tremblay, appealed his convictions for assault causing bodily harm and breach of probation, as well as the imposed sentence.

The Superior Court of Justice found that the trial judge erred in failing to consider the element of intentional application of force for the assault charge, and misapprehended significant evidence, leading to a miscarriage of justice.

The court also found errors in the reliance on a 9-1-1 recording as compelling evidence and the finding of corroboration.

Consequently, the convictions were quashed, and a new trial was ordered.

The plaintiff brought a motion for default judgment in a wrongful dismissal action after the defendant employer failed to defend.

The plaintiff, a 59-year-old general manager, was induced to leave secure employment and was terminated after 12 months with four weeks' working notice.

The court dismissed the claim for intentional infliction of mental suffering due to lack of medical evidence but awarded $10,000 in aggravated damages for the bad faith manner of dismissal.

The court also awarded 12 months' reasonable notice, resulting in $79,300 for wrongful dismissal, plus pre-judgment interest and costs.