SCJ 2019

The accused, charged with second-degree murder, brought an application seeking a declaration that the provisions of Bill C-75 eliminating peremptory challenges during jury selection apply prospectively only.

The Crown opposed, arguing for retrospective application.

The court reviewed recent coordinate decisions from the Ontario Superior Court of Justice, which consistently held that the elimination of peremptory challenges is a procedural matter and operates retrospectively.

Finding no reason to depart from these decisions, the court dismissed the application.

The defendants brought a Garofoli application seeking to exclude evidence seized from an apartment pursuant to a search warrant, alleging breaches of their s. 8 Charter rights.

The court found that while a police officer's warrantless entry to 'freeze' the apartment violated s. 8, the breach was committed in good faith and did not warrant exclusion of evidence under s. 24(2).

After reviewing the Information to Obtain (ITO) and making necessary excisions, the court concluded that the redacted ITO, amplified by a judicial summary of confidential informant information, provided sufficient reliable evidence for the issuing justice to grant the warrant.

The application was dismissed.

The plaintiff sought costs following the dismissal of the defendant's motion to set aside his noting in default and his cross-motion under s. 137.1 of the Courts of Justice Act.

The court found that the defendant had flouted the Rules of Civil Procedure, attempted to bully his way out, and rejected early offers to set aside the noting in default for a nominal payment.

The defendant's conduct warranted an elevated award of costs.

The court ordered the defendant to pay costs of $18,000, inclusive of disbursements and HST, which was slightly above partial indemnity costs.

The plaintiff sued several police constables and the Ottawa Police Services Board for over $2 million, alleging excessive force during his arrest in 2010 caused severe injuries.

The defendants moved for summary judgment, arguing the plaintiff lacked evidence to prove causation.

The court found that the plaintiff failed to produce any medical records or expert opinions establishing that the defendants caused his injuries, and noted evidence of pre-existing injuries and hospital restraints as alternative causes.

The defendants' motion for summary judgment was granted and the action was dismissed.

The appellant appealed his conviction on two counts of breaching his bail.

The police arrested the appellant after observing him with an individual they believed was not his surety, contrary to his bail conditions.

The trial judge accepted the officers' evidence that the individual was not the surety, despite a description matching one of the sureties.

The Superior Court of Justice allowed the appeal and ordered a new trial, finding that the trial judge failed to address the apparent conflict in the identification evidence and its impact on the reliability of the officers' testimony.

The plaintiff surety brought a motion for summary judgment against the defendant indemnitors for payments made under performance and labour and materials bonds.

The defendants opposed the motion, arguing the plaintiff failed to produce relevant documents requested during cross-examination that were necessary to assess the reasonableness of the payments.

The court found that the plaintiff's blanket refusals to produce the requested documents resulted in an incomplete evidentiary record.

Consequently, the plaintiff failed to discharge its onus of showing there was no genuine issue requiring a trial, and the motion was dismissed.

The parties separated after a 25-year marriage.

The respondent husband, who was disabled and unable to work, sought $500,000 in lump sum spousal support out of the applicant wife's assets, while the applicant sought child support for their adult son and dismissal of the spousal support claim.

The court found the respondent was entitled to non-compensatory spousal support due to his medical condition and financial need.

Applying the Spousal Support Advisory Guidelines and considering the applicant's income-producing assets, the court ordered the applicant to pay a lump sum of $46,000 to achieve a clean break.

The claims for child support and repayment of joint funds were dismissed.

Following a jury verdict awarding the plaintiff $35,000 in general damages and $20,000 in past loss of income for injuries sustained in a rear-end motor vehicle accident, the defendants brought a threshold motion.

The court found that while the plaintiff suffered a permanent impairment from chronic pain, she failed to prove on a balance of probabilities that her ongoing complaints were caused by the accident rather than pre-existing severe degenerative disc disease.

Furthermore, the court found that the impairment was not 'serious' within the meaning of the Insurance Act, as she was able to work and perform most tasks of daily living.

The threshold motion was granted, barring the plaintiff's claim for non-pecuniary damages.

The accused stood trial for dangerous driving causing death and bodily harm after his tow truck collided with a car at an intersection, killing the driver and injuring the passenger.

The Crown alleged the accused was speeding and ran a red light.

Based on eyewitness testimony, physical evidence, accident reconstruction, and event data recorder information, the court found the accused was driving between 95-110 km/h in a 40 km/h zone and entered the intersection on a red light.

The court concluded this conduct was a marked departure from the standard of care of a reasonable person and found the accused guilty on both counts.

The moving party sought summary judgment to dismiss a personal injury action arising from a motor vehicle accident at an intersection where the traffic lights were not operating due to a power outage.

The moving party relied on dashboard camera video evidence, which the responding party argued was inadmissible.

The court admitted the video, finding it to be a fair and accurate representation of the events.

Based on the video and the responding party's evidence, the court concluded that the moving party had entered the intersection first and had the right-of-way, and that the responding party failed to yield.

The action was dismissed with costs awarded to the moving party.

The plaintiffs were successful on a motion for partial summary judgment and successfully defended a cross-motion to dissolve an interim injunction regarding a commercial lease dispute.

The plaintiffs sought substantial indemnity costs of over $40,000, relying on an offer to settle and the defendant's conduct.

The court found the plaintiffs' offer to settle was reasonable but noted that both parties expended excessive and unnecessary time on the motions.

The court declined to award substantial indemnity costs and fixed costs on a partial indemnity basis at $25,000.

The Crown applied to have the respondent designated a Dangerous Offender following his convictions for overcoming resistance by choking, uttering a threat to cause bodily harm, forcible confinement, and sexual assault causing bodily harm.

The court found that the predicate offences were serious personal injury offences and that the respondent constituted a threat to the public due to a pattern of repetitive, persistent, and aggressive behaviour, as well as a failure to control his sexual impulses.

Concluding that a determinate sentence followed by a long-term supervision order would not adequately protect the public, the court designated the respondent a Dangerous Offender and imposed an indeterminate sentence.

The plaintiff brought a motion to certify a class action and approve a $2.25 million settlement regarding the defendants' systemic collection of credit scores during the automobile insurance claims adjusting process, which the Privacy Commissioner found breached PIPEDA.

The court certified the action for settlement purposes, finding the settlement fair, reasonable, and in the best interests of the class.

The court also approved a 60-day opt-out period, a cy-près distribution to the Public Interest Advocacy Centre, the notice plan, a $15,000 honorarium for the representative plaintiff, and class counsel fees of $500,000 plus disbursements.

The Crown brought an application for certiorari and prohibition to quash a decision of the Ontario Court of Justice, which held that recent amendments to the Criminal Code limiting the availability of preliminary inquiries did not apply retrospectively.

The Superior Court found that it had jurisdiction to grant prerogative relief because the lower court's statutory interpretation resulted in a jurisdictional error.

The Court held that the preliminary inquiry is a statutory procedure that does not confer substantive rights.

Therefore, the amendments were purely procedural and applied retrospectively.

The application was allowed, the lower court's order was quashed, and prohibition was granted.

Following a family law trial, both parties sought costs.

The applicant father sought full indemnity costs of $103,581.45 based on an offer to settle, while the respondent mother sought no order as to costs due to mixed success.

The court found that the father was substantially successful on custody and child support, but the mother was substantially successful on access, relocation, spousal support, and equalization.

Given the divided success, the unreasonable conduct of both parties, and the father's lack of financial disclosure, the court declined to award costs to either party.

The defendants in a proposed class action regarding allegedly defective power steering in MINI Cooper vehicles brought a preliminary motion to strike portions of an affidavit filed by the plaintiff for the certification motion.

The impugned evidence consisted of charts compiling consumer complaints from a US regulatory database.

The court granted the motion, finding the evidence to be inadmissible multiple-level hearsay.

The court held that even on the lower 'some basis in fact' standard applicable to certification motions, evidence must meet usual admissibility criteria, and the prejudicial effect of the 400 pages of complaints outweighed any probative value.

The defendant, the Attorney General of Canada, brought a motion for summary judgment to dismiss the plaintiff's action for negligent investigation and malicious prosecution.

The plaintiff, a legal assistant, had been previously acquitted of immigration fraud charges following an undercover RCMP investigation, while her employer was convicted.

The court found that the police had reasonable and probable grounds to arrest and prosecute the plaintiff based on intercepted communications and her involvement in fabricating a refugee claim.

As reasonable and probable grounds existed, both the negligent investigation and malicious prosecution claims failed.

The motion for summary judgment was granted and the action was dismissed.

The defendants were convicted of possession of GBL for the purpose of producing GHB and possession of Ketamine for the purpose of trafficking.

The Crown sought 8.5 years of incarceration, while the defendants sought 4 to 5 years.

The court found the operation to be a mid-level commercial enterprise involving significant quantities of 'date rape' drugs.

Emphasizing denunciation and deterrence, the court sentenced each defendant to a total of 6 years of incarceration, declining to grant Downes credits or reduce the sentence based on potential immigration consequences.

The court issued a supplementary endorsement to correct two points from its previous reasons for judgment granting certification and summary judgment dismissing the action.

On consent of the parties, the court revised the class definition regarding the defined benefit indexation payment increase from the pension plan.

The court also clarified that only the employer, and not the other defendants, owed a fiduciary duty to the plaintiff in the administration of the plan.

The applicant brought a motion for a temporary restraining order against the respondent under section 46 of the Family Law Act following a history of alleged domestic violence.

The respondent had recently been acquitted of criminal assault charges against the applicant and their daughter, though the trial judge found him probably guilty.

Applying the Supreme Court of Canada's decision in Malik, the court admitted the factual findings from the criminal trial and accorded them significant weight.

Finding that the applicant had reasonable grounds to fear for her physical and psychological safety, the court granted the restraining order.