Sean F. Dunphy

Following the dismissal of the plaintiffs' claim to rectify a promissory note and the dissolution of an interim injunction, the successful defendants sought costs.

The defendants relied on contractual indemnity provisions in the promissory note and guarantee to claim full indemnity costs.

The court held that the plain language of the contracts entitled the main defendants to full indemnity costs.

The costs claimed were found to be reasonable under Rule 57.01, with a minor deduction for a defendant lawyer's time spent attending trial as a spectator.

A separate defendant was awarded partial indemnity costs.

The Court-Appointed Receiver brought an unopposed motion to approve the sale of certain real estate assets.

The court approved the sale but issued reasons criticizing the Receiver's procedural conduct, specifically the late service of the motion record, late filing with the court, and excessive unilateral sealing of evidence.

The court emphasized the importance of the open court principle and the need to provide stakeholders with sufficient notice and information to make informed decisions.

The court refused to seal outdated appraisals and only temporarily sealed the summary of prior offers and the Agreement of Purchase and Sale.

The plaintiff brought a motion for summary judgment against the defendant, a former executive, for $20 million in damages arising from a fraudulent kickback scheme.

The defendant had previously been convicted of fraud in a criminal trial and sentenced to five years in prison.

The court applied the doctrine of abuse of process to rely on the factual findings of the criminal sentencing judge.

While the court dismissed the claims for civil conspiracy and civil fraud due to insufficient evidence of the defendant's active involvement in the broader scheme, it granted summary judgment for breach of fiduciary duty.

The court found the defendant's passive acquiescence and failure to stop the known fraud breached his fiduciary duties, making him liable for the full $20 million loss.

The moving party, Arden Holdings Inc., acquired the bankrupt's commercial lease pursuant to an assignment order under s. 84.1 of the Bankruptcy and Insolvency Act.

The lease contained a co-tenancy provision granting a rent reduction that was expressly stated to apply only so long as the bankrupt was the tenant.

The landlord argued this provision was personal and non-assignable.

The court held that under s. 84.1, the assignee steps into the shoes of the bankrupt and acquires all rights and obligations.

The court found the rent reduction was not personal by its nature, and the landlord's objection was out of time as it should have been raised prior to the assignment order being granted.

The applicants, engaged in combating government corruption in Malaysia, sought a Norwich Pharmacal order to compel financial institutions to produce confidential information about a Canadian real estate group.

The applicants suspected the group was funded by proceeds of foreign corruption and contemplated a private criminal prosecution for money laundering and receipt of proceeds of crime.

The court dismissed the application, holding that the applicants lacked reasonable grounds to believe an indictable offence had been committed, and that it would be inappropriate to use the court's inherent civil jurisdiction to bypass the careful balance struck by Parliament in the Criminal Code for criminal investigations and private prosecutions.

The defendants brought a motion for leave to amend their Statements of Defence to plead that a patent previously declared invalid by the Federal Court was actually valid, relying on a recent Supreme Court of Canada decision that overturned the 'promise doctrine' used to invalidate it.

The Superior Court of Justice dismissed the motion, holding that the proposed amendments constituted an impermissible collateral attack and were barred by issue estoppel.

The court found no 'special circumstances' to justify re-litigating the patent's validity, noting that under section 62 of the Patent Act, the Federal Court's declaration rendered the patent void ab initio.

The plaintiffs sought to rectify a promissory note, arguing that the fixed due date of December 31, 2015, did not reflect the true intent of the parties and was a mistake.

Alternatively, they argued there was a subsequent agreement to defer payment until a new financing deal was completed.

The Superior Court of Justice dismissed the plaintiffs' claims, finding that the written terms of the note accurately reflected the parties' agreement and that no subsequent agreement to defer enforcement had been reached.

The interim injunction restraining the defendants from enforcing the note was dissolved.

The Crown brought an application to declare the defendant a vexatious litigant under section 140 of the Courts of Justice Act.

The court found that the defendant had launched a prodigious number of meritless proceedings across various tribunals and courts.

The application was granted, and the affected existing proceedings were stayed pending an ex parte application to dismiss them.

The accused, while in custody, counselled a fellow inmate and an undercover police officer to murder his ex-girlfriend to prevent her from testifying against him in an upcoming trial.

The Crown's case relied heavily on the testimony of the fellow inmate, a 'Vetrovec' witness with a lengthy criminal record.

The court found the inmate's testimony credible and substantially corroborated by objective evidence, including a recorded phone call between the accused and the undercover officer.

The accused was found guilty of counselling murder and attempting to obstruct justice.

The accused, charged with counselling murder and obstructing justice, brought a Garofoli application challenging a wiretap authorization.

He argued that the Information to Obtain (ITO) failed to disclose that the police informer had requested and received sentencing consideration.

The accused also alleged breaches of his s. 7 Charter rights due to deliberate police deception and a failure to video or audio record all interactions with the informer.

The court dismissed the applications, finding that the omission in the ITO was inadvertent and that the warrant could still have issued if the omitted information had been included.

The court also held there was no constitutional duty to create video or audio records of all police interactions with the informer.

Following a judge-alone criminal trial, the court convicted the accused of sexual assault and sexual interference arising from historical sexual abuse of his young daughter.

The central issue was credibility and reliability in a case involving delayed disclosure, a prior childhood denial, and competing testimony from the complainant and the accused.

Applying the governing principles respecting child witnesses, delayed disclosure, and the W.(D.) framework, the court found the complainant’s evidence credible, reliable, and compelling, and rejected the accused’s denial.

The court held that the Crown proved beyond a reasonable doubt that the accused placed his penis in the complainant’s mouth for a sexual purpose while she was under sixteen and incapable of consent.

The accused were charged with possession of narcotics for the purpose of trafficking, possession of proceeds of crime, and money laundering following the execution of search warrants at two condominiums.

The Crown relied on circumstantial evidence to prove constructive possession of large quantities of cocaine, marijuana, oxycodone, and psilocybin, as well as significant amounts of cash.

The court found that the circumstantial evidence, including keys, documents, and debt lists, overwhelmingly established that both accused were in possession of the narcotics and that the cash was derived from trafficking.

Both accused were found guilty on all counts.

The Crown sought to introduce a video statement of the complainant made 6.5 years after the alleged sexual offences committed by her father, pursuant to s. 715.1 of the Criminal Code.

The court considered whether the statement was made within a 'reasonable time' given the lengthy delay.

Balancing the complainant's aboriginal status, age at the time of the offence, trauma, and the quality of the recorded memory against the accused's right to a fair trial, the court found the statement admissible.

The court noted that the trial process and cross-examination would provide sufficient safeguards for the accused.

The accused, charged with drug trafficking offences, brought applications to exclude evidence under s. 24(2) of the Charter, alleging violations of their rights under ss. 8, 9, and 10(b).

The police obtained search warrants for a condominium and a vehicle based on information from a confidential informant.

Prior to executing the warrants, police discovered the accused's vehicle at a different condominium, arrested him, and made a warrantless exigent entry into the unit to prevent the destruction of evidence.

The court found the initial warrants were validly issued and that the exigent entry was lawful under s. 11(7) of the Controlled Drugs and Substances Act.

The court also dismissed challenges to a strip search and an alleged delay in facilitating the right to counsel.

The applications were dismissed.

The applicant, charged with kidnapping and forcible confinement, brought an application alleging a violation of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay from arrest to the anticipated end of the trial was approximately 34.25 months, exceeding the 30-month presumptive ceiling established in Jordan.

The court found that the delay was justified by transitional exceptional circumstances, noting the complexity of the case, which involved multiple co-accused, a large police investigation, and voluminous disclosure.

The application was dismissed.

The offender, suffering from untreated schizophrenia, attacked a police officer from behind with a sledge hammer in a police station lobby, attempting 'suicide by cop'.

He was convicted of assault causing bodily harm and weapons offences.

The court weighed the severe psychological impact on the victim and the unprovoked nature of the attack against the offender's mental illness and remorse.

The court sentenced the offender to 18 months in custody, in addition to 45 months of pre-sentence custody credit, followed by three years of probation with strict treatment conditions.

On competing motions for summary judgment arising from the termination of an unpaid student practicum placement, the court dismissed the plaintiff's action in its entirety.

The court held the plaintiff was an unpaid volunteer rather than an employee and therefore could not advance wrongful dismissal or contractual consequential damages claims.

It further found no viable negligence or tort claim, including no actionable duty to conduct a non-negligent investigation before terminating the volunteer arrangement, and no proof of damages.

The defendant was awarded full indemnity costs because the claim lacked merit and was pursued with improper and inflammatory allegations.

The applicants, a mother and her adult daughter, sought dependant relief from the estate of the deceased under the Succession Law Reform Act.

The mother claimed to be the deceased's common-law spouse, and the daughter claimed the deceased demonstrated a settled intention to treat her as a child of his family.

The court dismissed the application, finding insufficient evidence that the mother and the deceased ever cohabited or lived together continuously for three years.

The court also found no settled intention by the deceased to treat the adult daughter as his own child.

The application was dismissed with costs awarded to the respondent estate.

The applicant, who was facing drug trafficking charges, brought an application under s. 490(10) of the Criminal Code for the return of $11,700 and US$20 seized from his parents' home.

The Crown opposed the application, arguing the court lacked jurisdiction because it intended to seek forfeiture of the funds if a conviction was obtained.

The court held that a bare assertion of future intent to seek forfeiture, without any evidence connecting the funds to the alleged offence, does not deprive the court of jurisdiction to order the return of property.

As the applicant provided uncontradicted evidence that the funds were from a lawful business, the application was granted and the funds were ordered returned.

The accused, a first-time offender, was convicted by a jury of reckless discharge of a firearm and occupying a motor vehicle knowing of the presence of a firearm.

The offences occurred after the accused's vehicle was vandalized, leading him to counsel the driver of an SUV to fire shots towards a townhouse complex.

The court imposed the mandatory minimum sentence of four years for the reckless discharge offence, noting the harshness of the penalty given the accused's youth and excellent rehabilitation prospects.

The court also awarded 89 days of pre-sentence credit, including 81 days for time spent under strict house arrest conditions.