Scott C. Hutchison

The Attorney General of Canada sought a sending order under s. 15 of the Mutual Legal Assistance in Criminal Matters Act to provide U.S. authorities with mirror-image copies of thirty-two seized computer servers as part of an international criminal investigation into alleged copyright infringement, conspiracy, money laundering, and racketeering.

The responding party argued the request was overly broad given the enormous volume of data on the servers and the limited evidence linking them to the alleged offences, and sought either refusal of the order or an independent forensic examination report.

The court held that although there were reasonable grounds supporting the initial warrant, privacy interests in the informational contents of computers required careful limits on the scope of disclosure.

Relying on appellate authority emphasizing that computer searches must not provide unfettered access to all stored data, the court concluded that further judicial supervision was required.

The application for a sending order was adjourned and the servers were ordered to be brought before the court so that the scope of material to be sent could be refined.

The appellants appealed a trial judgment dismissing their claims of fraud and breach of fiduciary duty against the respondents.

The trial judge had found no evidence of misappropriation of funds and concluded that the respondents' involvement was financially neutral to the appellants.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings of fact were amply supported by the evidence and entitled to deference.

A cross-appeal regarding costs was also dismissed.

The court considered whether a former estate trustee who had previously been imprisoned for civil contempt had purged that contempt by accounting for missing estate assets.

Forensic accounting reports revealed extensive unexplained withdrawals, questionable transactions, and missing securities from an estate once valued at approximately $30 million.

The responding party failed to provide a full explanation for the disappearance of assets and demonstrated little effort to comply with prior court orders requiring disclosure.

Although the court concluded the contempt had not been purged, it determined that further imprisonment would not serve the public interest and that additional accounting would be futile.

The order requiring the passing of accounts was withdrawn and the contempt issue brought to an end.

The appellants/applicants sought to appeal and judicially review an interlocutory decision of the Ontario Securities Commission regarding the composition of a panel for a sanctions hearing.

The Divisional Court dismissed the appeal for lack of jurisdiction under s. 9(1) of the Securities Act, which only permits appeals from final decisions.

The application for judicial review was quashed as premature, as the procedural fairness and jurisdictional issues could be raised after the final decision.

The moving party sought disclosure of a full document from which excerpts had been included in an affidavit used to obtain a search warrant.

The responding party argued disclosure was irrelevant, that no Charter breach had an air of reality, and that disclosure risked harm.

The court held that where a party relies on portions of a document to obtain a warrant, the opposing party is entitled to inspect the entire document under the best evidence rule and ordinary civil procedure principles.

A party cannot selectively disclose favourable excerpts while withholding the remainder.

The court ordered production of the full document.

The appellant physician was found guilty of professional misconduct involving sexual abuse of young boys.

He appealed the Discipline Committee's decision, arguing that the summons power under s. 76(1) of the Health Professions Procedural Code violated his s. 8 Charter rights against unreasonable search and seizure, and that the College's delay in prosecuting the case amounted to an abuse of process.

The Court of Appeal dismissed the appeal, holding that the summons power is constitutional in the regulatory context as it is properly constrained by relevance and privilege.

The Court also found that the delay was not inordinate given the concurrent criminal proceedings, and the appellant did not suffer significant prejudice.

Following the dismissal of an environmental class action on appeal, the successful defendant sought costs for the period from certification to the trial decision, payable from the Class Proceedings Fund administered by the Law Foundation of Ontario.

The court held that the defendant was prima facie entitled to costs on a partial indemnity basis under the general rule that costs follow the event.

However, under s.31(1) of the Class Proceedings Act, the court considered that the proceeding raised novel legal issues concerning environmental mass torts and class proceedings and involved significant public interest, including access to justice and environmental concerns.

Balancing these factors with the defendant’s entitlement to compensation for substantial litigation expenses, the court reduced the costs award.

The defendant was awarded 50% of the otherwise assessed costs, payable from the Fund.

In a class proceeding costs dispute following the dismissal of environmental contamination claims, the defendant brought a motion to strike portions of affidavits filed by a third-party fund administrator opposing payment of costs from the Class Proceedings Fund.

The challenged affidavits contained opinion evidence from non‑expert witnesses asserting that the litigation raised issues of public interest.

The court applied the principles governing admissibility of lay opinion evidence from R. v. Graat, distinguishing between admissible opinion grounded in factual observations and inadmissible speculation or legal opinion.

While the court permitted most of the opinion evidence as permissible lay opinion supporting observations about the public interest and access to justice, it struck limited portions that lacked factual foundation or amounted to speculation.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission revoking its liquor licence.

The Board found the appellant permitted unlawful gambling and the sale, distribution, or consumption of controlled drugs on its premises.

The Divisional Court dismissed the appeal, finding no error of law.

The Court held that the Board reasonably concluded the appellant had constructive knowledge of the drug activity and that the penalty of revocation was reasonable.

The Registrar of the Alcohol and Gaming Commission of Ontario appealed a Board decision refusing to revoke the respondent's liquor licence.

The Registrar sought revocation because the respondent's sole officer and director was actively involved in the Hell's Angels.

The Registrar argued the Board applied the wrong legal standard under s. 6(2)(d) of the Liquor Licence Act.

The Divisional Court dismissed the appeal, finding the Board applied the correct 'reasonable grounds for belief' standard and properly assessed all pertinent factors regarding the operation of the licensed establishment.

During pre‑trial proceedings, the accused advanced a Charter challenge alleging a breach of s. 8 arising from an alleged unreasonable search and seizure.

The court addressed issues relating to production of third‑party banking records held by a financial institution.

To facilitate the ongoing motion, the court clarified the scope of a subpoena duces tecum issued to a bank employee and specified categories of internal bank materials to be produced, including anti‑money laundering manuals, online instructions to branches, and training materials relevant to the relevant time period.

The endorsement was issued to ensure production of the documentation necessary for the continuation of the pre‑trial Charter application.

The appellant, a police officer, appealed the dismissal of his application for certiorari to quash his committal to stand trial on charges of breach of trust, obstruction of justice, and conspiracy to obstruct justice.

The appellant argued that the evidence from the preliminary inquiry only showed he attempted to assist a friend navigate the criminal justice system.

The Court of Appeal dismissed the appeal, agreeing with the reviewing judge that the totality of the evidence, including intercepted communications and the appellant's use of his position to access court officials, was sufficient to justify the committal to stand trial.

The appellants appealed a decision refusing to quash their committal for trial.

They argued the preliminary inquiry justice lost jurisdiction by refusing to allow them to call witnesses who had provided information relevant to judicial pre-authorizations, which they intended to use to establish Charter breaches.

The preliminary inquiry justice and the appeal judge treated the proposed witnesses as sub-affiants who could only be cross-examined with leave.

The Court of Appeal dismissed the appeal, holding that the witnesses were properly characterized as sub-affiants and that the refusal to allow their cross-examination at the preliminary inquiry did not impair the appellants' right to make full answer and defence.

The appellant appealed the dismissal of his libel action against the CBC and Warren Kinsella.

The trial judge had dismissed the action as statute-barred because the appellant failed to provide notice within six weeks after the alleged libel came to his attention, as required by s. 5(1) of the Libel and Slander Act.

The Court of Appeal upheld the trial judge's finding that the appellant could reasonably have known of the libel earlier and failed to act diligently to ascertain the facts after learning the gist of the broadcast.

The appeal was dismissed with costs of $25,000.

The appellant physician appealed the revocation of his medical license and a costs order of $95,812 imposed by the Discipline Committee of the College of Physicians and Surgeons for sexual misconduct involving three young boys.

The appellant, joined by intervenors, also challenged the constitutionality of the College investigator's summons power under s. 76(1) of the Health Professions Procedural Code, arguing it violated s. 8 of the Charter.

The Divisional Court dismissed the appeal, finding that the summons power was constitutional in the regulatory context, the Committee had jurisdiction to hear the Charter challenge, and the delay in proceedings did not amount to an abuse of process.

The Court upheld the Committee's factual findings, penalty, and costs order as reasonable.

Following the dismissal of the appeal and cross-appeal, the respondent sought partial indemnity costs of $26,457.59.

The Law Foundation of Ontario, responsible for the appellants' costs, argued for a reduction to $12,000 due to novelty, public interest, and access to justice concerns.

The Court of Appeal fixed the respondent's costs at $18,000, inclusive of disbursements and GST, reflecting the nature of the appeal and the dismissal of the cross-appeal.

The appellants, who received long-term disability benefits, brought a proposed class action challenging the insurer's deduction of CPP Child Benefits from their payments.

The trial judge dismissed the action, finding the deductions were permitted by the policies and not contrary to the Canada Pension Plan, and awarded the insurer $215,000 in costs.

On appeal, the Court of Appeal upheld the dismissal and the costs award, confirming that while the factors in s. 31(1) of the Class Proceedings Act must be given significance, they do not automatically insulate an unsuccessful class plaintiff from an adverse costs award.

The appellant was convicted of perjury for swearing under oath that he was licensed to practice law in the State of New York.

At trial, the Crown relied on a business record from the New York State Unified Court System showing no record of the appellant.

On appeal, the appellant argued that the evidence only established he was not registered to practice in state courts, not federal courts in New York.

The Court of Appeal agreed that the charge as framed in the indictment was not established by the evidence and declined the Crown's request to amend the indictment.

The appeal was allowed and an acquittal entered.

The defendants, eight major financial institutions, successfully defended an appeal of a decision denying certification of a class action regarding mortgage contracts.

The defendants sought their costs of the appeal.

The plaintiffs argued that no costs should be awarded, asserting the proceeding was a test case and involved a matter of public interest under section 31(1) of the Class Proceedings Act.

The Divisional Court rejected the plaintiffs' arguments, finding the case was not a test case, did not raise a novel point of law, and was not a matter of public interest, but rather involved individual commercial mortgage contracts.

The court awarded the defendants modified partial indemnity costs fixed at $20,000 per defendant.

The appellant appealed his sentence of 35 months (plus 61 months pre-trial custody credit) for aggravated assault and use of a firearm.

He had used a handgun to threaten a 12-year-old boy who provided information to police, firing the gun and severely injuring the boy via ricochet.

The appellant argued the trial judge erred by taking judicial notice of the prevalence of witness intimidation and by failing to properly consider his youth.

The Court of Appeal dismissed the appeal, finding the facts of the offence spoke for themselves regarding intimidation, and the trial judge properly weighed the appellant's youth against his extensive record and the gravity of the offence.