SCJ 2018

The accused, Fattah Abdel, was charged with possession of money obtained by an indictable offence and transferring money with intent to conceal or convert it, knowing it was derived from a designated offence, contrary to section 462.31(1)(b) of the Criminal Code.

The Crown alleged that Abdel received illicit funds totaling $348,751.57, which were obtained through an email hacking fraud committed against Air Palace and Rotor Maxx.

Abdel deposited these funds into a company account he controlled and then quickly dispersed them via bank drafts to pay off his personal and business debts.

He provided conflicting and false explanations for the funds' origin to his business partners.

The court found Abdel guilty on both counts, concluding that he either had actual knowledge that the funds were illicit or was wilfully blind to their illicit nature, given the unusual transaction, his desperate financial circumstances, and his deceptive actions.

The plaintiff's construction lien action was dismissed, and the defendants' counterclaim was allowed.

This decision addresses the defendants' request for full indemnity costs against the plaintiff corporation and its principals due to egregious conduct during litigation.

The court awarded full indemnity costs against the plaintiff corporation and one principal jointly and severally, finding that principal engaged in fraud, fabricated evidence, and repeatedly lied.

Costs were not awarded against another principal, as their misconduct was not directly related to the litigation.

The defendant hospital requested that the plaintiff's action be dismissed as frivolous, vexatious, or an abuse of process under Rule 2.1.01 of the Rules of Civil Procedure.

The self-represented plaintiff's hand-written statement of claim alleged mistreatment and abuse by the defendants but failed to set out facts giving rise to a cause of action.

The court found the pleading to be frivolous, vexatious, and an abuse of process, and directed the Registrar to issue a notice to the plaintiff that the court is considering dismissing the action, while staying the proceeding in the interim.

Mid-trial, the accused, Siavash Norouzian, brought a motion to re-open the defence case to call a new expert for phone analysis and to recall Detective Gazey, a Crown witness.

This application arose after issues concerning the reliability of initial expert evidence and *Browne v. Dunn* concerns were raised by the Crown.

The court granted the defence permission to call a new expert and recall Detective Gazey, emphasizing the seriousness of the charges and the accused's right to make full answer and defence.

The court declined to call the expert itself or order the Crown to cover the expert's fees, instead inviting a funding application.

The defendants brought a motion to set aside a default judgment that had granted injunctive relief, damages, and costs to the plaintiffs, and sought the return of their seized motor vehicle.

The court applied the three-part test for setting aside default judgment, finding that the motion was brought promptly after the defendants learned of the judgment (upon seizure of their truck).

The default was adequately explained by the defendants' limited education, their inability to understand legal documents, and their financial inability to retain counsel after being denied legal aid.

Furthermore, the defendants presented an arguable defence on the merits regarding disputes over a shared laneway, wood smoke, and water discharge.

The court concluded that significant prejudice would result to the defendants if the judgment stood and that allowing it to stand would bring the administration of justice into disrepute.

The motion was granted, the default judgment set aside, and the vehicle ordered returned.

The Children's Lawyer brought a motion for summary judgment seeking sole custody for the mother and specified access for the father for the child, Jack.

The parties agreed on access terms.

The court granted the mother sole custody, giving significant weight to the 16-year-old child's well-reasoned wishes to mitigate parental conflict, finding no genuine issue requiring a trial.

The plaintiff, a self-represented litigant, commenced three separate actions alleging various misconducts over 20 years against numerous defendants, including government entities, police services, healthcare facilities, and media corporations.

The defendants brought a motion under Rule 2.1.01 to dismiss or stay the actions as frivolous, vexatious, or an abuse of process, citing rambling pleadings, grandiose claims for damages (exceeding $800 million), and potential limitation period issues.

The court found the actions to be frivolous, vexatious, and an abuse of process but, considering the plaintiff's self-represented status and lack of prior opportunity to amend, decided to continue the stay rather than dismiss the actions outright.

The plaintiff was granted a limited opportunity to seek leave to amend his Statements of Claim by a specified date, failing which the actions could be dismissed.

The accused, W.M., was convicted of sexual interference involving a 12-year-old victim, J.D., whom he forcibly masturbated while in a position of trust.

The Crown sought a 2-year jail sentence, emphasizing the profound impact on the victim.

The defence proposed 9-12 months or 90 days intermittent, arguing for credit for stringent bail conditions and that the victim's impact was inherent in the sentencing range.

The court found the assault to be very serious and invasive, rejecting the defence's argument that the victim's impact was already accounted for.

While acknowledging prior rulings on the unconstitutionality of the mandatory minimum of 1 year for sexual interference, the court still considered Parliament's view.

The court sentenced W.M. to 18 months in custody, followed by 3 years of probation, a DNA order, 15-year Sex Offender Information Registration, and various prohibitions, noting that without credit for stringent bail, the sentence would have been 2 years.

The defendant, Toronto Transit Commission (TTC), brought a motion to enforce an alleged settlement agreement reached via email after two mediations.

The plaintiffs denied a binding settlement, arguing that HST was not included in the agreed-upon amount.

The court found that the defendant's email constituted a new offer, which the plaintiffs unconditionally accepted, and that the settlement amount was inclusive of HST.

The court enforced the settlement, finding no compelling circumstances or evidence of mistake to justify declining enforcement.

Kristine Jill Hill was found in contempt of a June 28, 2017 order.

This endorsement addresses the sentencing, which included a joint submission, and the quantum of full indemnity costs to be paid by Ms. Hill as part of her sentence.

The court considered principles of reasonableness, indemnity, and factors under Rule 57.01 of the Courts of Justice Act.

The court found the matter complex, noted unnecessary steps taken by the defendants, and ultimately awarded the plaintiffs the requested costs of $320,899.64.

Following a five-day family law trial where the applicant was almost entirely successful, she sought costs.

The self-represented respondent did not file responding submissions.

The court found the respondent's behaviour during the litigation to be highly unreasonable, though not amounting to bad faith, as he failed to produce documents, reneged on a settlement, and prolonged the trial.

The court ordered the respondent to pay costs to the applicant in the all-inclusive amount of $26,173.99.

The plaintiffs sought leave under s. 12 of the Evidence Act to call four additional expert witnesses (three occupational therapists and one life care planner) in a personal injury action, beyond the three medical experts and one accountant already intended.

The defendants opposed, arguing duplication and unnecessary expense.

The court granted leave for two of the four additional experts: Ms. Schmidt (occupational therapist) and Mr. Smit (life care planner), but limited Mr. Smit's evidence to costs.

The court denied leave for Mr. Campbell and Mr. Tyrer, finding their evidence duplicative as both were occupational therapists and vocational assessors co-authoring reports on employability.

The father sought immediate reinstatement of access to his 12-year-old son and therapeutic orders compelling the family to engage in counselling.

The mother opposed mandatory counselling and argued access was detrimental.

The court found jurisdiction to make therapeutic orders, concluding they were not "treatment" under the Health Care Consent Act requiring consent, as they posed little to no risk of harm and were aimed at improving family relationships.

The court temporarily suspended the father's access, ordered individual and joint counselling for both parents and the child, and mandated judicial oversight, emphasizing that an integrated therapeutic intervention was essential for the child's best interests and to rebuild the father-son relationship.

The child was to remain in the mother's primary care.

The appellant, Daniel Raymond Lavigne, appealed his conviction for failing to provide a breath sample and his sentence.

The trial judge found an 8-minute delay in demanding a breath sample was justified for officer safety and investigation, satisfying the "forthwith" requirement under s. 254(2)(b) of the Criminal Code.

The appeal court upheld the conviction, finding no reviewable error in the trial judge's factual findings or application of the law.

The court declined to hear the appeal from sentence, noting it was not properly advanced in the appellant's factum or oral arguments.

In a personal injury action, the plaintiff objected to the defendants' attempt to introduce evidence and arguments suggesting that the plaintiff's receipt of collateral benefits was relevant to her motivation to work and her actual disability.

The court sustained the plaintiff's objection, ruling that such considerations were speculative and lacked relevance to the determination of disability.

The decision emphasized that while collateral benefits are relevant for calculating offsets, they should not be used to imply a lack of motivation to work or to undermine claims of disability.

In a personal injury action, the defendants objected to the plaintiff's proposed witness sequence, which intended to call a physiotherapist, Gloria Gilbert, as the first witness, followed by the plaintiff.

The defendants argued that the plaintiff should testify first to provide context for her subjective chronic pain claims.

The court dismissed the defendants' objection, allowing the plaintiff to call Ms. Gilbert first, provided the plaintiff excluded herself from the courtroom during Ms. Gilbert's testimony.

The court emphasized a litigant's right to present their case as counsel deems advisable, finding no compelling reason to interfere with the modest deviation from usual practice, especially since Ms. Gilbert was presented as a "participating expert" whose testimony would not inherently depend on the plaintiff's prior evidence.

The applicant brought a motion to confirm the distribution of proceeds from the sale of the matrimonial home, specifically regarding mortgage, taxes, and home insurance payments made by the respondent post-separation.

The respondent failed to provide proper accounting despite previous court orders and warnings.

The court confirmed the applicant's acknowledged obligation of $20,642.28 to the respondent and ordered the respondent to reimburse the applicant $1,373.64 for payments she made after his default.

The court also awarded the applicant $6,500.00 in costs due to the respondent's uncooperative conduct.

Jacek Mucha pleaded guilty to possession of cocaine for the purpose of trafficking.

He was already serving a seven-year sentence for a related conspiracy to traffic cocaine in Halifax.

The Crown sought a two-year consecutive sentence, while the Defence sought a two-year concurrent sentence.

The court adopted a three-step process for sentencing, determining the appropriate length, then whether it should be consecutive or concurrent, and finally applying the totality principle if consecutive.

The court found a two-year sentence fit and ordered it to run concurrently with the existing Halifax sentence, citing a sufficiently close connection between the two offences due to overlapping locations, dates, substance, and police investigations.

Ancillary orders included a lifetime firearms prohibition, a Secondary DNA Order, and forfeiture of seized cash.

The Children's Aid Society sought a supervision order for a child with kin, while the kin (maternal great aunt and her spouse) sought custody.

The mother, father, and foster parents proposed extended society care for adoption by the foster parents.

The court found the child in need of protection due to the mother's drug abuse and unstable living situation.

The court dismissed expert evidence on attachment theory as not specific to the child.

Ultimately, the court granted custody of the child to the kin, finding it to be in the child's best interests, and ordered reasonable access for the mother, siblings, and foster parents.

The applicant, Gary Eunick, sought a reduction in his parole ineligibility period under section 745.61 of the Criminal Code, having been convicted of first-degree murder and attempt murder in 2004.

The Crown opposed the application.

Applying the pre-2011 Criminal Code amendments test, the court assessed whether there was a reasonable prospect that a unanimous jury would reduce the parole ineligibility.

While the applicant's conduct in prison had improved, his persistent denial of guilt and lack of remorse were significant negative factors.

Considering the brutal nature of the offences and the profound, ongoing impact on the victims' family, the court found no reasonable prospect of a unanimous jury reducing the parole ineligibility period.

The application was dismissed.