SCJ 2018

This decision addresses a recusal motion brought by counsel, Fay Brunning, seeking to have Justice Perell recuse himself from deciding costs against her personally.

The motion arose after Justice Perell issued a case management direction ordering Ms. Brunning to attend her client's Independent Assessment Process (IAP) hearing, following her stated intention not to attend due to dissatisfaction with a prior ruling.

Ms. Brunning argued that the direction created a reasonable apprehension of bias.

The court dismissed the recusal motion, finding no convincing evidence of bias and emphasizing the judge's role in administering the Indian Residential School Settlement Agreement (IRSSA) and ensuring access to justice for claimants.

The Applicant brought a motion to strike the Respondent's Answer and related documents due to his persistent non-compliance with multiple court orders regarding financial disclosure and child support payments.

The Respondent sought an adjournment, leave to amend his Answer, and permission for international travel with the child.

The court dismissed the Respondent's adjournment request and limited the scope of his motion.

Finding the Respondent's non-compliance to be exceptional and egregious, the court granted the Applicant's motion to strike the Respondent's Answer with respect to non-parenting issues, allowing financial matters to proceed on an uncontested basis.

The court also imposed travel restrictions on both parties and fixed costs against the Respondent.

The appellant appealed his convictions for impaired driving and refusing to provide a breath sample.

He argued the trial judge erred by not staying proceedings due to the police's failure to video record his arrest and transport, and by failing to adequately consider a defence witness's testimony.

The Superior Court of Justice dismissed the appeal, finding that the police had no duty to create video evidence and that the trial judge provided sufficient reasons for rejecting the defence witness's testimony.

The Chief Adjudicator of the Indian Residential Schools Independent Assessment Process brought a Request for Direction regarding the notice program for the disposition of highly confidential records.

The court previously ordered the destruction of these records subject to a 15-year retention period during which claimants could choose to archive them at the National Centre for Truth and Reconciliation.

The main issue was whether the court had jurisdiction to order Canada to fund the participation of the Assembly of First Nations, Inuit Representatives, and the NCTR in the notice program.

The court found it had jurisdiction under the Class Proceedings Act and its inherent supervisory powers, and ordered Canada to provide funding, albeit at reduced amounts reflecting the organizations' limited roles.

The defendant brought a summary judgment motion to dismiss the plaintiff's claim regarding a fraudulently transferred property.

The court found serious credibility issues with both parties concerning the property transfers and a trust agreement.

The defendant, as trustee, failed in his duty to account to the plaintiff, the beneficial owner.

Given the significant credibility issues, the court dismissed the summary judgment motion, finding a genuine issue requiring a trial, and suggested a mini-trial or consolidation with related litigation.

This application concerned the validity of primary wills for two testators, John Douglas Milne and Sheilah Marlyn Milne, which granted executors discretion to determine which assets were subject to the will based on whether probate was required.

The executors sought certificates of estate trustee with a will for these primary wills.

The court dismissed the applications, finding the primary wills invalid due to a lack of certainty of subject matter.

The court held that the subject matter of a trust, including a testamentary trust, must be objectively ascertainable at the time of death, without relying on the retroactive discretion of the estate trustees.

The secondary wills, which included all property without such discretionary exclusions, were deemed valid.

The plaintiff, AA, sued defendants BB and CC for intentional infliction of emotional distress, conspiracy, slander, and libel, alleging they conspired to make a false report to the Children's Aid Society.

The trial was re-opened after an initial decision dismissed the claim against CC and granted limited damages against BB.

Upon review of new evidence, including text messages, the court found that BB and CC acted in combination by agreement or common design to make a false report.

The court awarded AA general damages for intentional infliction of emotional distress and slander, and punitive damages, holding both defendants jointly and severally liable.

The claim for conspiracy merged with the other claims, and CC's statements to the Society were protected by qualified privilege.

The accused was charged with impaired driving causing death, two counts of impaired driving causing bodily harm, and driving with a blood alcohol concentration over 80mg following a head-on collision.

The accused brought Charter applications alleging breaches of his rights under ss. 7, 8, and 10(b), seeking exclusion of breath and blood samples and statements.

The court dismissed the s. 10(b) and s. 8 applications, finding the police exercised reasonable diligence in facilitating access to counsel and that blood samples were taken for medical purposes.

The court found statements to first responders voluntary, but excluded a statement to police under s. 7 due to statutory compulsion under the Highway Traffic Act.

On the substantive charges, the court rejected the accused's evidence of 'bolus drinking' and a 'third car' causing the collision, finding him guilty on all counts.

The accused sought a stay of proceedings based on alleged violations of ss. 7 and 11(d) of the Charter due to 25.5 years of pre-charge delay and the loss of an evidence control sheet.

The court found that the police decision not to send the victim's t-shirt for forensic analysis in 1990 was not negligent or oppressive state conduct, as DNA testing capabilities were limited at the time and conventional serology would not have led to charges.

The court also found that the loss of the evidence control sheet did not constitute a Charter breach, as there was no air of reality that it would have materially assisted the defence.

The application for a stay was dismissed, and the matter was ordered to proceed to trial.

The plaintiff brought a motion for leave to amend its amended statement of claim in an action for outstanding sales commissions.

The defendants opposed the motion, arguing estoppel, expiry of limitation periods, and non-compensable prejudice.

The court granted the motion, finding no positive representation to support estoppel, that the amendments were particulars of existing claims rather than new causes of action, and that any prejudice regarding internal resources could be managed through a discovery plan.

The Atkinson defendants brought a motion seeking approval to withdraw funds held in trust to pay legal fees and costs awards.

The plaintiff opposed, arguing that the funds were subject to a solicitor's undertaking given by the Atkinson defendants' counsel to hold them in trust pending the resolution of the dispute.

The court found that a clear and unambiguous undertaking existed, binding the funds to remain in trust until entitlement was determined by the court or by agreement between the parties.

Consequently, the Atkinson defendants' request to access the funds was denied.

The appellant appealed a series of arbitration awards concerning parenting issues for the parties' four-year-old child, E. The awards included E's registration on the Korean Family Registry, the requirement to hire a transfer facilitator for child exchanges, and the arbitrator's costs decision.

The court also addressed preliminary motions for fresh evidence.

The appeal was dismissed in its entirety, with the court upholding the arbitrator's decisions, finding no palpable and overriding errors of fact or errors in principle.

The fresh evidence motions were largely dismissed, applying the Palmer test, due to issues of hearsay, reliability, and statutory prohibition.

The appellant appealed her conviction for failing to provide a breath sample into an Approved Screening Device, contrary to section 254(2)(b) of the Criminal Code.

The appeal was based on three grounds: the trial judge's alleged error in relying on roadside utterances for credibility assessment, a misapprehension of evidence regarding the appellant's hearing, and the unreasonableness of the verdict due to an alleged lack of unequivocal refusal.

The court dismissed all grounds of appeal, finding no error in the trial judge's reasoning, no material misapprehension of evidence, and abundant evidence of unequivocal refusal.

This decision addresses the issue of costs following a 9-day trial where the applicant, Joan Ann Mary Fox, was largely successful in her claims for spousal and child support arrears.

The court found the respondent, James Henry Fox, acted in bad faith due to extensive financial non-disclosure, deliberate destruction of business records, and causing extraordinary delay in the litigation.

The respondent's offers to settle were deemed unreasonable, partly because they did not include costs and were made without adequate financial disclosure.

Consequently, the applicant was awarded costs on a full recovery basis, subject to minor adjustments for duplication of counsel work, travel time, previous counsel's fees, and a small amount for the respondent's limited success on four minor issues.

The Applicant sought costs on a full recovery basis due to the Respondent's unreasonable or bad faith conduct in financial disclosure during a family law proceeding that had settled by consent order.

The Respondent argued for parties to bear their own costs or for him to receive partial indemnity.

The court found the Respondent's conduct regarding disclosure to be unreasonable, though not in bad faith, as he was inattentive to his duty to make full and fair disclosure.

This unreasonable conduct was deemed to trump any success the Respondent might have had in the underlying litigation.

The court also addressed the retrospective application of changes to the Family Law Rules concerning costs and the principles governing "costs thrown away." The Applicant was awarded costs on a substantial recovery basis.

The accused, charged with drug trafficking offences, brought a Charter s. 8 application alleging that police officers staged a break-in at his residence and made an anonymous call to trigger a warrantless entry, leading to the discovery of drugs and cash.

The defence relied on voice identification evidence to argue that the lead investigator made the anonymous call.

The court evaluated expert voice comparison evidence, the status of the ongoing police investigation, and the officers' whereabouts.

The court concluded on a balance of probabilities that the police did not stage the break-in or make the anonymous call, and that the warrantless entry by responding officers was justified.

The application was dismissed.

The defendant brought a motion seeking an order for the plaintiff to attend an independent medical examination (IME) with a physiatrist specializing in amputations.

The plaintiff, who had sustained a leg amputation, opposed the motion, arguing that their condition had not changed significantly since a previous defence medical assessment by an occupational medicine specialist, and that the request was a "do over." The court granted the motion, emphasizing the principle of fairness to allow the defendant to obtain expert evidence in a specialized area (amputation treatment) to respond to the plaintiff's physiatrist's opinion and to "level the playing field" in assessing damages.

During a trial for second-degree murder, the accused applied to introduce character evidence of the deceased to support a claim of self-defence.

The accused had shot the deceased, who was attempting to steal his truck, and claimed the deceased made a threatening gesture as if holding a gun.

The proposed evidence included the deceased's prior convictions for fleeing police, outstanding property charges, a withdrawn assault charge, and photographs of the deceased with weapons.

The court dismissed the application, finding that the evidence did not demonstrate a propensity for violence or the use of weapons, and its admission would not legitimately assist the jury while risking prejudice.

The Crown applied to admit statements made by the accused during a police interview following his arrest for murder.

The accused had shot a person attempting to steal his truck.

During the interview, the accused repeatedly asserted his right to remain silent based on legal advice.

The interviewing officer continued questioning, suggesting that explaining his actions could result in a lesser charge or support a claim of self-defence.

The court found that the officer's tactics constituted an implied inducement, overcoming the accused's will to remain silent.

The Crown failed to prove voluntariness beyond a reasonable doubt, and the statements were ruled inadmissible.

The applicant, a registered charity focused on poverty relief through public advocacy, challenged the Canada Revenue Agency's (CRA) interpretation and enforcement of section 149.1(6.2) of the Income Tax Act.

This section limits non-partisan political activities to "substantially all" of a charity's resources, which the CRA interpreted as 90% or more, effectively capping political activities at 10%.

The applicant argued this restriction infringed its freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms.

The court found that the CRA's 10% rule and the distinction between charitable and non-partisan political activities were unconstitutional, as they burdened the applicant's effective pursuit of its charitable purpose through advocacy.