SCJ 2020

The accused applied for a review of her detention order on charges including robbery with a firearm and kidnapping, arguing a material change in circumstances based on a new release plan with two sureties and a delay in medical treatment.

The court admitted the new sureties as fresh evidence but found the accused failed to meet her reverse onus on both the secondary and tertiary grounds.

The court held that the proposed release plan could not adequately address the risk of reoffending given the accused's extensive criminal record and history of breaching bail conditions.

The application for bail review was dismissed.

The defendants requested a review of the plaintiffs' statement of claim under Rule 2.1 of the Rules of Civil Procedure.

The plaintiffs' action sought damages against various entities involved in a prior child protection proceeding that resulted in their children becoming Crown wards.

The court found that the action was an impermissible attempt to relitigate issues already decided in the child protection proceeding.

The court dismissed the action in its entirety as an abuse of process.

The applicant, charged with sexual assault, brought a pre-trial motion for directions under s. 278.1 of the Criminal Code to determine whether text messages and images sent by the complainant to the applicant constituted 'records'.

The preliminary issue was whether the complainant had standing on this motion.

The court held that denying the complainant a voice at the records determination stage would be inconsistent with the legislative purpose of balancing the accused's rights with the complainant's privacy interests.

The court exercised its discretion to grant the complainant standing on the motion for directions.

The defendants, engineering consultants, brought a motion for summary judgment to dismiss a crossclaim by the co-defendant developer.

The crossclaim was a subrogated claim advanced by the developer's insurer.

The moving parties argued they were additional insureds under the developer's wrap-up liability policy and thus protected by a waiver of subrogation clause.

The developer argued the waiver should not apply because the moving parties' professional services were excluded from coverage under the policy.

The court held that the moving parties were additional insureds and the clear language of the policy's waiver of subrogation clause applied, regardless of the professional services exclusion.

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

The plaintiffs moved to exempt a $145,000 personal injury settlement from garnishment by a non-party judgment creditor.

The creditor argued the plaintiffs lacked clean hands due to past conduct in evading judgment.

The court found the plaintiffs' conduct did not amount to a lack of clean hands and held that damages for pain and suffering, along with associated pre-judgment interest and legal costs, are exempt from garnishment.

The motion was granted, and the full settlement amount was exempted.

The moving parties sought an adjournment of four related applications and two summary judgment motions due to the late filing of a responding record containing an expert report.

The responding party did not oppose the adjournment but argued the expert report should not have been a surprise.

The court granted the adjournment, extended the deadline to set three of the related cases down for trial, and reserved the costs of the appearance to the hearing on the merits.

The plaintiff moved to strike portions of the defence and counterclaim alleging details of the parties' sexual relationship and the plaintiff's sexual proclivities.

The court held those allegations were not scandalous, frivolous, or vexatious under Rule 25.11 and were at least arguably relevant to the characterization of the relationship, the defence to the fraud and contract claims, and the counterclaim for intentional infliction of mental suffering.

Applying the Rule 21 plain and obvious test, the court found it was not plain and obvious that the impugned pleadings could not support the defence or counterclaim, including a developing harassment claim.

The motion was dismissed, subject to a direction that the defendant amend the counterclaim to expressly plead negligence.

The plaintiff, who was injured after falling from scaffolding while doing drywall work at the defendants' home, sought to amend his statement of claim after the expiry of the limitation period.

The original claim was framed in occupiers' liability, alleging acts of omission.

The proposed amendments alleged acts of commission, specifically that the defendant distracted the plaintiff or bumped the scaffolding.

The court dismissed the motion, finding that the amendments raised a new cause of action that was statute-barred, as the plaintiff knew or ought to have known of the facts giving rise to the new claim on the date of the incident.

The plaintiff brought a motion for an interlocutory injunction to access the defendants' adjacent property to complete brickwork on a new residential home before winter.

The parties were involved in a broader dispute over property lines and construction damage.

Applying the RJR-MacDonald test, the court found a serious issue to be tried, irreparable harm if the structure was left exposed to winter weather, and that the balance of convenience favoured the plaintiff.

The motion was granted, permitting temporary access subject to proof of insurance.

The Crown brought an application during a first-degree murder trial to admit several ante mortem statements made by the deceased under the principled exception to the hearsay rule.

The statements primarily concerned the accused's anger towards the deceased and the accused allegedly stealing the deceased's apartment keys.

The court applied the framework from Bradshaw and Khelawon to assess substantive reliability, using corroborative evidence where appropriate.

The court admitted the statements made to the deceased's sister, a close friend, the building superintendent, and the property manager, finding them reliable.

However, statements made to the deceased's boyfriend and another friend were excluded due to reliability concerns and unclear declarant identity.

The offender pleaded guilty to manslaughter for his role in the execution-style shooting of a 16-year-old victim.

The court determined the appropriate sentence range was 8 to 12 years, fixing the sentence at 8 years due to the offender's limited participation and young age.

The court then reduced the sentence to 7 years to account for the collateral consequences of harsh pre-sentence custody conditions, including lockdowns and the COVID-19 pandemic, before applying a 1.5:1 credit for time served.

The final sentence to be served was 2 years and 325 days.

The plaintiff brought a motion to strike the jury notice in a motor vehicle accident action, arguing that civil jury trials would be unavailable for the foreseeable future due to the COVID-19 pandemic and that a jury would not represent a cross-section of the community.

The court dismissed the motion, adopting a 'wait and see' approach to allow the newly implemented Central East Region protocol for civil trials to evolve.

The court found no evidence that jury composition had deteriorated and held that striking the jury based on anticipated delay was premature.

The plaintiff suffered a traumatic brain injury after being hit by a golf ball hit by the defendant.

The plaintiff brought a motion to increase the damages claimed and to strike the jury notice due to anticipated trial delays caused by the COVID-19 pandemic.

The court granted the amendment to damages on consent.

However, the court dismissed the motion to strike the jury notice, adopting a 'wait and see' approach to determine if the region's new civil trial protocol could accommodate urgent civil jury trials, without prejudice to the plaintiff's right to renew the motion later.

Following a tornado that destroyed or damaged their homes, the insureds and their insurer, Desjardins, disagreed on the value of the losses.

Desjardins brought applications and a motion to stay the insureds' bad faith action pending the completion of the statutory appraisal process.

The court held that an insured's lawyer may act as their appraiser, as appraisers are advocates and need not be impartial, unlike the umpire.

The court also held that insureds may wait to submit a proof of loss based on actual repair costs rather than estimates, provided they act diligently.

The motion to stay the bad faith action was dismissed, as the insurer would suffer no prejudice from parallel proceedings.

The defendant brought a motion to consolidate a civil action with a family court application.

The civil action involved a dispute over whether a $250,000 transfer of funds from the plaintiff to the defendant was a loan or a gift, while the family court application involved the enforcement of a separation agreement and equalization of net family property.

The court applied the factors for consolidation under Rule 6.01 and found that while there were common questions of fact, the balance of convenience favored allowing the civil action to proceed to a summary trial independently.

The motion to consolidate was dismissed.

The plaintiff brought a motion to amend his statement of claim to reduce damages to $35,000, dismiss a third-party claim, and transfer the action to the Small Claims Court.

The defendants opposed the transfer, arguing prejudice due to COVID-19 delays and costs already incurred in defending the Superior Court action.

The court granted the unopposed amendments and dismissal of the third-party claim.

The court also granted the transfer to Small Claims Court, finding no definitive prejudice from delay, but ordered the plaintiff to pay $500 to each defendant for costs thrown away on steps unnecessary in Small Claims Court.

The plaintiff brought a motion for summary judgment seeking damages for breach of an employment contract, claiming entitlement to a 1.5% equity stake in the defendant limited partnership.

The parties disputed the nature of the agreement, the entity in which the equity was held, and the value of the shares, relying on conflicting pre-employment emails and formal documents.

The court dismissed the motion, finding that the conflicting evidence and lack of valuation data created genuine issues of credibility and fact that required a trial.

The Estate Trustee During Litigation (ETDL) brought a motion to sell the estate's sole significant asset, a residential property, prior to trial.

The respondent, who resided in the property and claimed ownership under a disputed codicil, opposed the sale.

The court granted the motion, finding that the respondent had failed to comply with previous court orders regarding carrying costs and disclosure, had maximized the property's line of credit, and that the ETDL required estate funds to protect the asset and advance the litigation.

The estate trustee brought a motion to approve the passing of accounts for an estate.

The responding parties challenged the legal fees claimed by the trustee's counsel for estate administration, the trustee's claim for compensation, and sought their own legal fees.

The court found the estate was not complex and reduced the trustee's legal fees significantly, denying the claim for legal assistant time and reducing the lawyer's time.

The court also denied the trustee's claim for compensation, finding the work was performed by the law firm.

The responding parties' legal fees were approved to be paid from the estate, and they were awarded costs of the motion payable by the trustee.

The appellant appealed his summary convictions for two counts of sexual assault against a mother and daughter during acupuncture treatments.

The appeal was based on alleged errors in credibility findings, uneven scrutiny of evidence, failure to declare a mistrial due to a post-verdict civil claim, and impermissible stereotypical reasoning.

The Superior Court of Justice found that while the trial judge's credibility findings and dismissal of the mistrial application were reasonable, the trial judge erred in law by relying on impermissible stereotypical reasoning regarding the likelihood of a civil claim based on masturbation.

This error reversed the burden of proof.

The appeal was granted, the convictions were set aside, and a new trial was ordered.