SCJ 2019

The defendant, charged with first-degree murder, applied to sit at counsel table during his upcoming jury trial, rather than in the prisoner's dock.

The court considered two lines of authority regarding the presumptive seating position and emphasized the trial judge's wide discretion, which should be contextually driven.

Balancing the defendant's fair trial rights and dignity against security concerns, and noting the absence of specific security risks, the court granted the application, finding it would attenuate prejudice and facilitate solicitor-client communication.

The applicant, an automotive components manufacturer, sought protection under the Companies' Creditors Arrangement Act due to severe financial difficulties.

After extensive negotiations with secured lenders and key customers, the applicant proposed a strategic sale process with a stalking horse bidder, supported by a DIP facility.

The court granted the Initial Order, finding the applicant insolvent and the proposed stay of proceedings, DIP facility, and bidding procedures to be reasonable and necessary to preserve the business and employment.

The plaintiff's slip and fall action was dismissed against the remaining defendants (Marriott entities) after the Workplace Safety and Insurance Appeals Tribunal (WSIAT) determined it had exclusive jurisdiction, barring the civil claim.

This decision concerns the costs of the action and the defendants' motion to dismiss.

The court found both counsel responsible for the unnecessary motion due to poor communication and unreasonable cost claims, particularly the defendants' inclusion of WSIAT costs which are not recoverable.

The court fixed the costs of the action for the remaining defendants at $2,500 all-inclusive and awarded no costs for the motion itself, emphasizing the waste of court resources and unrecoverable legal fees caused by counsel's failure to communicate meaningfully.

The Applicant sought custody, access, spousal and child support, equalization of net family property, and permission to travel internationally with the child without the Respondent's consent.

The Respondent sought custody, no equalization, and restrictions on the child's travel documents.

The court granted joint custody with the Applicant having primary residence and final decision-making authority in case of disagreement.

Unilateral international travel for either parent was denied due to Iraq not being a Hague Convention signatory.

The court ordered child and spousal support, and an equalization payment to the Applicant, including a deferred maher payment, but applied an unequal division of net family property due to the short cohabitation period.

The accused was charged with robbery and breach of recognizance.

Counsel consented to severing the counts, with robbery proceeding before a jury.

The court ordered the selection of two alternate jurors under s. 631(2.1) of the Criminal Code, granting Crown and defence 14 peremptory challenges each.

A race-based challenge for cause was permitted under s. 638(1)(b) due to the accused being Black, and rotating triers were ordered under s. 640(2).

The defendant sought summary judgment to dismiss the plaintiff's action, arguing it was statutorily barred by limitation periods and that the plaintiff failed to comply with policy timelines for notice and proof of claim.

The plaintiff opposed, asserting the action was timely based on discoverability and seeking relief from forfeiture for any non-compliance.

The court dismissed the defendant's motion, finding the evidentiary record insufficient to make definitive factual determinations regarding the date of discoverability of the disability benefits or whether relief from forfeiture should be granted.

The dismissal was without prejudice to the defendant to raise limitation period arguments at trial.

Erick Bercian, charged with first-degree murder, challenged the admissibility of a statement made to police before his arrest.

The court found that Bercian was psychologically detained when questioned by police, despite being told he was free to leave.

His Charter rights under ss. 10(a) and 10(b) were violated because he was not informed of the true reason for his detention (homicide investigation, as the victim had died) and was not given the opportunity to consult counsel based on the full extent of his jeopardy.

The police also used manipulative questioning tactics and effectively prevented him from leaving.

Consequently, the statement was excluded under s. 24(2) of the Charter.

Ace Marmon appealed a Small Claims Court decision dismissing his wrongful dismissal action against SanMar Canada.

Marmon claimed he was fired without cause, while SanMar asserted he resigned or was terminated for insubordination after refusing temporary shipping duties at his regular pay rate.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors of fact or law by the Deputy Judge.

The court upheld the finding that Marmon's refusal constituted repudiation of an essential employment condition and insubordination, justifying dismissal.

The appellant, Suzana Kovacevic, brought a motion for the recusal of Justice McKelvey from her appeal seeking to set aside a peace bond.

The appellant alleged bias based on the judge's rulings regarding witness cross-examination, perceived delays, mispronunciation of her name, and refusal to assign another judge.

The appellant also asserted that the judge lacked the necessary life experience to understand the case.

The Crown opposed the motion.

The court dismissed the recusal motion, finding no reasonable apprehension of bias.

The defendant applied to exclude evidence seized during a search warrant execution and incidental to arrest, alleging false and misleading statements in the Information to Obtain (ITO).

The Crown conceded some misrepresentations in the ITO regarding the defendant's past criminal history.

The court declined to hear the late-breaking application regarding the search incidental to arrest due to lack of proper notice but indicated it would be open to hearing it later with proper notice.

For the search warrant, the court excised the misleading statements from the ITO and, after allowing amplification of poor-quality images, found that sufficient grounds remained for the warrant's issuance.

The court also concluded that even if there was a Charter breach, the evidence would not be excluded under s. 24(2) of the Charter, balancing the seriousness of the conduct, the impact on the accused, and society's interest in a merits-based adjudication of serious charges.

The plaintiff, Yaqiong Wang, sought to terminate an agreement to purchase a new-build house from the defendant, Tribute (Grandview) Ltd., after the housing market dropped.

Wang sued for the return of her deposit, while Tribute counterclaimed for specific performance, later amending to seek damages for breach of contract.

Tribute brought a motion for summary judgment.

The court found the agreement valid, rejected Wang's claims of a subsequent settlement, and determined that Tribute had not failed to mitigate damages.

Summary judgment was granted in favour of Tribute, ordering Wang to pay damages for the difference between the original purchase price and the current listing price, less the deposit already paid.

The applicant, Lisa Rezai, proceeded with an uncontested trial against the respondent, Glen Gibbons, who failed to appear or provide adequate disclosure throughout the lengthy litigation.

The court granted sole custody and decision-making authority for the child to the applicant, ordered supervised access for the respondent due to his history of alcoholism, anger, and threatening behavior, and imputed an income of $500,000 per annum to the respondent for child and spousal support purposes.

The court also ordered significant retroactive support and section 7 expenses, an equalization payment from the matrimonial home proceeds, and full legal costs to the applicant due to the respondent's bad faith and uncooperative conduct.

The applicant's claim for a constructive trust was dismissed, but an equalization payment was awarded.

This decision addresses the voluntariness of statements made by two accused, J.D. and D.B., to police in a human trafficking case.

The Crown sought to admit statements from both.

J.D. argued his statement was involuntary due to fear from a forceful arrest, while D.B. argued hers was involuntary due to the absence of a primary caution.

The court found J.D.'s statement voluntary, concluding that the force used during his arrest was not excessive, he was properly cautioned, and he maintained an operating mind.

However, D.B.'s statement was deemed involuntary because she was never given a primary caution, was not fully informed of all charges when she spoke to counsel, and her understanding of the recording's purpose was flawed, raising reasonable doubt about her awareness of the stakes.

The defendant police board brought a motion for summary judgment to dismiss the plaintiff's claims for malicious prosecution, negligent investigation, and breaches of ss. 7 and 8 Charter rights, stemming from his 2004 arrest and charges.

The plaintiff opposed, arguing issue estoppel based on a prior criminal ruling that excluded evidence due to a s. 8 Charter breach.

The court found that reasonable and probable grounds existed for the arrest and charges at the time, despite the subsequent exclusion of evidence in criminal proceedings.

It determined that the prior Charter remedy (exclusion of evidence and dismissal of charges) was sufficient and no further monetary damages were appropriate, especially given the plaintiff likely committed the offences.

The motion for summary judgment was granted, and the plaintiff's claims were dismissed.

This case involved a two-day trial to determine outstanding s. 7 child support expenses for two children following a divorce.

The respondent father disputed payment based on arguments that the applicant mother did not personally incur the expenses (they were paid by extended family) and that he did not provide prior consent as required by a Final Order.

The court addressed the necessity and reasonableness of the expenses, the impact of third-party payments, and the requirement for prior consent, ultimately ordering the father to pay a significant portion of the claimed expenses and establishing a new communication protocol for future expenses.

The applicant sought costs following a 13-day family law trial.

The court found the applicant to be the successful party on several key issues, including the date of cohabitation, the validity of the Maher, and the Kevin Drive property.

The respondent's conduct regarding the Kevin Drive property, which involved transferring and selling it without the applicant's knowledge or consent, was deemed bad faith and a clear attempt to defraud the applicant of her rightful equalization payment.

While none of the parties' offers to settle met the criteria under Family Law Rule 18(14) for special consideration, the court awarded the applicant partial indemnity costs, emphasizing the need to deter such egregious conduct, while still applying principles of fairness and reasonableness.

The respondent's claim for costs was dismissed.

In a medical malpractice action, the defendants moved for summary judgment against the plaintiff, who alleged back injuries due to improper treatment.

Despite four years of litigation and multiple extensions, including a specific timetable set by a previous judge, the plaintiff failed to serve any expert report to establish the standard of care or causation.

The defendants, conversely, provided expert reports asserting that the standard of care was met and that the plaintiff suffered no discernable back injury.

The court dismissed the action, finding no genuine issue requiring trial due to the absence of necessary expert evidence from the plaintiff.

Costs were awarded to the defendants, but were reduced by half due to the plaintiff's personal hardships.

The respondent, the City of Niagara Falls, successfully defended an application by Michael Richard for a declaration of ownership by adverse possession of disputed public land.

The City subsequently requested its costs.

The court awarded partial indemnity costs to the City, finding no reason to deviate from the general rule that a successful party is entitled to costs.

The application was deemed important to both parties and moderately complex due to the historical nature of the evidence and the involvement of public land, but not unique or novel.

This ruling addresses final jury instructions in a criminal trial.

The court decided not to leave the partial defence of provocation to the jury due to a lack of air of reality, specifically regarding the absence of an identifiable indictable offense by the victim and suddenness.

However, the court found an air of reality for self-defence, warranting its submission to the jury, based on the accused's belief of threatened force and purpose of protection, despite concerns about the reasonableness of the force used.

A 'rolled-up' instruction, combining provocation, intoxication, fear, and suddenness for the mental intent of murder, was granted.

Limiting instructions were provided for the accused's after-the-fact conduct, clarifying its relevance to self-defence and intoxication but not to the intent for murder.