SCJ 2019

The appellant appealed his conviction and sentence for sexual assault.

At trial, the judge accepted the complainant's evidence that the appellant touched her breast without consent after attempting to kiss her and asking about her sex life.

On appeal, the appellant argued the trial judge applied uneven scrutiny to the evidence, misapplied the W.(D.) framework, and erred in finding the touching was sexual under Chase.

The summary conviction appeal court dismissed the conviction appeal, finding no errors in the trial judge's credibility assessments or legal application.

The sentence appeal was also dismissed, as the trial judge made no error in principle in declining to grant a conditional discharge.

The accused, charged with second-degree murder, applied for judicial interim release.

The Crown alleged a strong circumstantial case involving a fatal stabbing related to the drug trade.

The court found that the accused met his onus under the primary and secondary grounds due to his lack of a criminal record and the strength of the proposed sureties.

On the tertiary ground, the court balanced the gravity of the offence against the circumstantial nature of the evidence and the strict release plan, concluding that a reasonable person would not lose confidence in the administration of justice if the accused were released.

The application was granted, and the accused was released on strict conditions, including house arrest and significant financial pledges from his sureties.

Following a motor vehicle collision, a jury awarded the plaintiff $10,000 in general damages and $14,000 for past loss of income.

The defendant brought a threshold motion arguing the plaintiff's soft tissue injuries did not meet the verbal threshold under section 267.5(5) of the Insurance Act.

The court reviewed the medical evidence, including surveillance showing the plaintiff conducting fitness sessions, and concluded the plaintiff failed to prove she sustained a permanent impairment of a physical, mental, or psychological function.

The claim for general damages was dismissed.

The applicant and respondent engaged in a focused hearing to determine three pivotal issues: the date of separation, the income of both parties, and whether the respondent financially supported the applicant.

The parties had a tumultuous, long-distance marriage spanning 17 years, with conflicting evidence regarding their separation date.

The court preferred the applicant's evidence, finding the date of separation to be May 31, 2015.

The court imputed an annual income of $56,000 to the respondent due to intentional underemployment and $28,000 to the applicant based on minimum wage earning capacity.

Finally, the court determined the respondent provided $98,594 in financial support to the applicant between 2004 and 2017.

The accused, a commercial truck driver, was charged with importing cocaine and possession for the purpose of trafficking after 30 kilograms of cocaine were found in his trailer at the Canada-US border.

The accused admitted to knowingly bringing the cocaine into Canada but raised the defences of duress and innocent possession.

The court rejected the defence of duress, finding that the accused did not reasonably believe the alleged threats, had safe avenues of escape, and acted for financial gain.

The court also rejected the defence of innocent possession, as the accused exercised control over the drugs for several days.

The accused was found guilty on both counts.

The applicant husband brought an originating application to terminate his spousal support obligations following his voluntary early retirement at age 63.

The parties had previously executed a separation agreement providing for $6,000 per month in spousal support, which was silent on the issue of retirement.

The court held that the husband's voluntary retirement did not constitute a material change in circumstances that would justify deviating from the separation agreement.

The court also rejected the husband's argument that continuing support would constitute impermissible double-dipping.

Spousal support was ordered to continue indefinitely at a reduced quantum of $1,200 per month, retroactive to the date the husband unilaterally ceased payments.

The plaintiff in a solicitors' negligence action brought a motion to remove the defendants' counsel, alleging a conflict of interest.

The plaintiff claimed the defendants' lawyer obtained confidential information about him during a prior, allegedly related action where the lawyer represented a different party.

The Master dismissed the motion, finding no factual nexus between the prior action and the current negligence claim, and concluding that a fair-minded, reasonably informed member of the public would not find removal necessary for the proper administration of justice.

Following a jury trial in a personal injury action where the plaintiff was awarded $698,112.58 in damages, the court determined the plaintiff's entitlement to costs.

The parties agreed on most rates and disbursements but disputed the senior counsel's hourly rate for 2017 and 2018, and whether the costs should reflect the net recovery after an assignment of collateral benefits.

The court fixed senior counsel's rate at $375 per hour, declined to reduce costs based on the uncertain future of collateral benefits, and awarded the plaintiff partial indemnity costs totaling $466,185.76.

Following a trial where the plaintiffs were awarded damages for a motor vehicle accident, the defendant brought a motion for a conditional assignment order of the plaintiff's Statutory Accident Benefits (SABS).

The parties disagreed on the effective date of the assignment.

The court held that the effective date of the assignment is the date of the reasons for judgment, but the assignment is conditional upon and triggered by the payment of the judgment in full.

In a post-trial ruling following a motor vehicle accident trial, the court determined the terms of an assignment of the plaintiff's long-term disability (LTD) benefits to the defendant's insurer.

The court held that the defendant is entitled to a credit for the gross amount of the LTD benefits, regardless of the tax deducted at source by the LTD insurer.

The court also ruled that the effective date of the assignment is the date of the jury's verdict, not the date the judgment is paid, and ordered the defendant to reimburse the plaintiff for reasonable costs incurred in preserving her right to the LTD benefits.

During an ongoing medical negligence trial involving a minor plaintiff who suffered severe brain damage at birth, the parties disputed the phrasing of the jury question on causation.

The plaintiffs argued for the phrase 'caused or contributed to', relying on recent jurisprudence involving multiple tortfeasors.

The defendant argued for the conventional 'but for' standard.

The court held that the factual matrix was not so confusing as to preclude the conventional 'but for' test, and ordered the jury questions to be phrased using the 'but for' standard.

The offender was convicted of assault causing bodily harm, attempted murder, and forcible confinement against his intimate partner.

The court applied the Kienapple principle to stay convictions for uttering threats and assault, but declined to stay the forcible confinement conviction.

Emphasizing denunciation and deterrence for domestic violence, the court sentenced the offender to a global term of 6 years imprisonment, less credit for pre-sentence custody.

The appellant appealed his eight-month sentence for impaired driving, arguing his guilty plea was uninformed, he received ineffective assistance of counsel, and the judge erred by sentencing him in absentia.

The Superior Court dismissed these grounds, finding the plea was voluntary, counsel had explained the immigration consequences, and the judge reasonably exercised his discretion to sentence the appellant after he absconded.

However, the appeal was allowed in part because the sentencing judge failed to consider the collateral immigration consequences of the sentence.

The sentence was reduced to six months less a day to account for these consequences.

Following an appeal of an arbitration award where success was divided, the appellants sought costs of $24,322.76.

The respondents argued that each party should bear their own costs or, alternatively, costs should be fixed at $3,500.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and section 131 of the Courts of Justice Act.

Finding that the appellants were successful in having the arbitrator's reasons deemed inadequate on one issue, while the respondents were successful in having the matter remitted to the original arbitrator, the court concluded that success was divided and made no order as to costs.

The applicant husband commenced a family law case solely to obtain a divorce, but subsequently failed to participate or provide financial disclosure.

The respondent wife proceeded to an uncontested trial seeking corollary relief including equalization, post-separation expenses, and spousal support.

The court imputed an annual income of $90,000 to the husband based on past earnings and ordered him to pay equalization and post-separation expenses.

Due to a real risk of non-payment, the court awarded lump sum spousal support of $201,330.

To enforce the judgment, the court granted a vesting order transferring the husband's interest in the matrimonial home to the wife.

The defendant employer brought a motion to set aside a noting in default and to strike several paragraphs from the plaintiff's wrongful dismissal Statement of Claim.

The impugned paragraphs alleged that the employer had provided more favourable severance and pension arrangements to other terminated employees.

The court granted the motion, setting aside the noting in default and striking the paragraphs under Rule 25.11.

The court held that the treatment of other terminated employees is irrelevant to the assessment of the plaintiff's individual damages and would unnecessarily delay and complicate the trial.

The court heard four procedural motions, including motions for trial together, transfer of a Small Claims Court action, and leave to amend pleadings.

The parties reached an agreement on most issues prior to the hearing.

The court ordered that this action and a related action be tried together with common discoveries, and granted the plaintiff leave to amend the statement of claim.

The motion to transfer the Small Claims Court action was adjourned to be heard by a judge, as a Master lacks jurisdiction under section 107 of the Courts of Justice Act.

The decision on a separate motion for trial together by another set of defendants was reserved.

The moving party defendants brought a motion to set aside a noting in default and a default judgment obtained by the plaintiff in an action concerning the purchase of a vacant building lot.

The defendants had attempted to file a notice of intent to defend and a statement of defence within the required timelines, but errors by a law clerk and the plaintiff's swift action to note them in default prevented the filings.

The court applied the tests for setting aside a noting in default and a default judgment, finding that the defendants had a plausible excuse, moved promptly, and presented an arguable defence on the merits.

The motion was granted, and the noting in default, default judgment, and writ of seizure were set aside.

The mother of a severely disabled adult plaintiff brought a motion to be appointed as his litigation guardian and to be permitted to represent him without legal counsel in an action against a residential care facility.

The defendants brought a cross-motion to dismiss the action as a nullity because it was commenced by a non-lawyer, or alternatively to appoint the Public Guardian and Trustee.

The court held that commencing the action without a lawyer was an irregularity, not a nullity, and refused to dismiss the claims.

However, the court found the mother could not act as litigation guardian because she failed to retain counsel as required by the Rules of Civil Procedure, failed to file the requisite affidavit, and lacked the necessary indifference to the outcome of the litigation.

The Office of the Children's Lawyer was appointed as litigation guardian.

Following a failed asset purchase agreement, the plaintiff by counterclaim (TNS) sought damages for the defendant by counterclaim's (MAS) failure to return chattels and the late return of other chattels.

The court determined that damages should be based on the fair market value of the unreturned chattels as of the date they ought to have been returned, and the diminished fair market value for the late-returned chattels.

Relying on an appraisal report, the court awarded TNS $13,167 in damages, inclusive of pre-judgment interest, to be paid out of the original purchase deposit held in trust.