Stephen J. Wojciechowski

The decision concerns a defence motion for a directed verdict of acquittal on a charge of second degree murder.

The accused, Daniel Keefe, argued that the evidence could not support a finding of second degree murder and that only manslaughter should be left to the jury.

The court reviewed the evidence, including witness testimony, the 911 call, and expert pathology evidence, and applied the legal test for a directed verdict.

The court concluded that there was sufficient evidence on which a properly instructed jury could convict of second degree murder, and dismissed the motion.

This direction addresses the admissibility and use of a third video clip in a criminal trial involving Daniel Keefe.

The court considers the relevance and potential prejudice of the video, which depicts an attack by Aiden Cunningham on a third party, and provides guidance on how the jury should be instructed if the attacker is not identified in evidence.

The decision addresses whether the statement made by Daniel Keefe to police was voluntary and whether his section 10(b) Charter rights were breached.

The court found that, although Keefe was advised of his rights and consulted counsel, the circumstances of his detention—including his youth, inexperience, anxiety, lack of medication, and not being told about the recording or use of his statement—meant the Crown did not prove voluntariness beyond a reasonable doubt.

The statement was excluded.

The decision addresses a motion by Pamela Adderley for standing in an application brought by Bridgepoint Financial Services Limited Partnership I against Rudolf Steinberg.

The application concerns entitlement to settlement funds arising from accident benefits and the priority of claims to those funds.

The court considers whether Adderley should be joined as a party under Rule 5.03 of the Rules of Civil Procedure or permitted to participate under section 67 of the Personal Property Security Act.

The court concludes that while Adderley is not a necessary party for joinder, her interests are engaged under the PPSA and she is permitted to participate in the application, subject to limits on her evidence and submissions.

The court considered an application by the estate trustee of Laurette Marie Patriquin for directions regarding the administration of a bequest to a charitable institution that no longer existed at the time of the testator’s death.

The court applied the cy-près doctrine and directed that the bequest intended for The Shriners Hospital for Children in Minneapolis, Minnesota, be paid instead to Shriners Children’s Twin Cities, as its successor.

The court also addressed costs, awarding $3,000 to Shriners Children’s Twin Cities and $10,000 to the applicant, both payable from the estate, after considering proportionality and the necessity of the application.

The plaintiff, Breaking Ground Drilling and Blasting Inc., sued Hanslip Demolition for unpaid invoices.

Hanslip Demolition counterclaimed for $6 million due to alleged deficient work and issued a Third Party Claim against Lloyd's of London Limited (Lloyds) and Intact Insurance Company, seeking indemnification as an additional insured under Breaking Ground's policy.

Lloyds brought a motion to strike the Third Party Claim for disclosing no reasonable cause of action.

The court dismissed the Third Party Claim against Lloyds, finding that Hanslip Demolition's claims (for defence costs and indemnity for the main action, and for its counterclaim losses) were not covered by the commercial general liability policy, which only covered bodily injury, personal injury, property damage, or advertising liability caused by an occurrence.

The court also found that Hanslip Demolition could not trigger the policy for property damage to the quarry (not its property) and that the conditions for a direct action against the insurer under s. 132 of the Insurance Act were not met as no judgment had been obtained against Breaking Ground.

The plaintiffs, Tyler Hogan and TGH Holdings Ltd., brought a motion for default judgment against Brent Massaro and BJSM Holdings Ltd., seeking declarations of oppression and breach of fiduciary duties, and an order for the defendants to purchase the plaintiffs' interests in Thunder Bay Broom and Chemical Ltd. The defendants had been noted in default due to their deliberate failure to participate in litigation, including discovery.

The court found that the defendants' conduct was oppressive and breached fiduciary duties, warranting personal liability for Massaro.

The court ordered a buyout of the plaintiffs' shares for $13,350,000, based on an expert valuation that accounted for known misconduct, but declined to include speculative damages for unknown misconduct.

Costs were awarded to the plaintiffs.

This decision addresses the costs arising from a successful motion brought by the defendant, Bombardier Transportation Canada Inc., against the plaintiff, Nicole Barrette.

Bombardier sought approximately $16,780.50 in partial and substantial indemnity costs under Rule 49.10, having been entirely successful in the underlying motion.

Barrette argued the claim was excessive and disproportionate, suggesting $1,500, citing the simplified procedure limits under Rule 76 and the limited impact of some motion issues on the overall litigation.

The court, exercising its discretion under Rule 57.01(1), considered the offer to settle, proportionality, and local counsel rates, ultimately awarding Bombardier $5,000 in costs, inclusive of fees, disbursements, and HST.

The defendant, Len's Cove Marina Ltd., brought a motion to set aside a default judgment obtained by the plaintiff, Thomas McIlwain, concerning a defective boat.

The court dismissed the motion, finding the Marina's explanations for its significant delay in responding to the claim and the default judgment implausible.

The court also determined that the Marina did not present an arguable defence on the merits, particularly regarding its reliance on a manufacturer's warranty not directly applicable to the claim against the Marina for selling an unmerchantable product.

The court concluded that setting aside the judgment would not serve the overall integrity of the administration of justice, given the unreasonableness of the Marina's conduct.

The applicant brought a motion for a certificate of pending litigation and a preservation order regarding a cottage property formerly owned by his deceased mother.

The applicant claimed the property was held in a secret trust for him by the respondent, his mother's surviving spouse.

The court found that the applicant established a triable issue regarding the existence of a secret trust and that the balance of convenience favoured granting the certificate of pending litigation.

The request for a preservation order was dismissed as unnecessary.

The respondent, Chelsea DeGagne, brought a motion to change a final order regarding child support, seeking an increase retroactive to January 1, 2021, and orders for financial disclosure and life insurance verification.

The applicant, Cale Swearengen, failed to file responding materials or appear at the hearing.

The court found a significant material change in circumstances based on Chelsea's evidence of Cale's increased income from two sources, including a contracting business that had expanded significantly.

The court imputed income to Cale based on Chelsea's calculations, finding them reasonable given Cale's non-disclosure.

The motion was granted, child support was increased retroactively, and Cale was ordered to provide financial disclosure and maintain a life insurance policy.

Costs of $3,500 were awarded to Chelsea.

The defendant, Bombardier Transportation Canada Inc., brought a motion to compel the plaintiff, Nicole Barrette, to answer certain discovery questions and undergo an independent medical examination (IME) by a psychiatrist.

The plaintiff was terminated from her employment and is seeking damages for wrongful dismissal, alleged refusal to accommodate disability, and discriminatory conduct under the Human Rights Code.

The court granted the motion in part, compelling answers to most outstanding discovery questions and ordering the plaintiff to attend the IME, finding her mental condition was in question.

The court also addressed the scope of expert opinion and rescheduled the trial.

The respondent, Peter Joseph Welch, sought costs after successfully obtaining a temporary order reinstating his alternating week parenting schedule for the parties' two children.

The applicant, Erinn Lindsay Catherine Gravelle, opposed the costs request.

The court awarded the respondent $4,500 in costs, inclusive of fees, disbursements, and HST.

The decision considered the respondent's success on the underlying motion, his reasonable offers to settle, and the applicant's failure to make an offer and her unreasonable stance regarding the respondent's mental health treatment.

However, the court reduced the respondent's requested costs, finding some of the fees incurred to justify his unilateral contravention of a prior court order regarding schooling were unnecessary and disproportionate.

This decision addresses an evidentiary dispute during a trial regarding the admissibility of post-assessment medical reports through a defendant fact witness, Dr. McPherson.

The defendants sought to introduce reports created after Dr. McPherson's last assessment of the plaintiff, Jeremy Veran, to demonstrate improvement in symptoms.

The plaintiffs objected, arguing Dr. McPherson had not seen these documents and was not an expert witness.

The court ruled that documents not seen or received by Dr. McPherson, and not directly relevant to his care of the plaintiff, could not be introduced through him as a fact witness, even if they were part of the joint book of documents.

The Respondent Father sought to reinstate a previous week-on/week-off parenting schedule for the two children, which had been suspended due to his unilateral decision to homeschool one child and subsequent mental health issues.

The Applicant Mother opposed the full reinstatement but was open to variation, proposing a different temporary schedule and a modified summer schedule.

The court found the Father's mental health was stable and he acknowledged his error in unilaterally changing the child's schooling.

The court reinstated the original week-on/week-off schedule on a temporary basis, vacating the prior suspension order, but adopted the Mother's proposed two-week summer parenting schedule.

The court emphasized that any future changes to schooling must be by agreement or court order, not unilateral action.

The defendants brought a motion to address two issues: the admissibility of opinions in two plaintiff expert reports (Miyanji and Levin) and the admissibility of evidence from five lay witnesses.

The court ruled that portions of the Miyanji and Levin reports that did not respond to specific "Defence Expert Reports" or introduced new standard of care issues were inadmissible due to late service and lack of reasonable explanation.

The motion to exclude the lay witnesses was dismissed as premature, with the court stating that the admissibility of their evidence, particularly any opinion evidence, should be assessed at the time it is tendered at trial.

The plaintiffs brought a motion seeking several orders before trial, including dismissal of claims against certain defendants, leave to amend their statement of claim, preliminary determination of jury questions, and exclusion of expert evidence.

The court granted the dismissal of claims against the "Released Defendants" without costs, as it was previously agreed upon.

Leave was granted to file a Fresh as Amended Statement of Claim, as the proposed amendments were extensive and did not remove admissions.

The court also determined the format for jury questions, largely adopting the plaintiffs' approach for damages and requiring explanations for answers, emphasizing standard of care and "but for" causation.

The issue of expert evidence was adjourned to a later date.

The plaintiffs brought a motion to preclude the defendants from introducing evidence from fifteen expert reports served late in a medical malpractice action.

The court considered the admissibility under Rule 53.08, assessing whether there was a reasonable explanation for the late service and if granting leave would cause irreparable prejudice or undue delay.

The court allowed some reports as supplementary or responding reports, finding a general reasonable explanation for delay due to discovery issues and prior party understanding.

However, it excluded a vocational report that introduced new scenarios without prior notice and a neuropsychological report, reiterating a previous ruling that no neuropsychological impairment issue was pleaded or supported by evidence, and its introduction would cause significant prejudice and necessitate trial adjournment.

The applicant sought to be appointed as the estate trustee for the deceased intestate under section 29 of the Estates Act, bypassing the standard Rule 74 process.

The applicant argued urgency, alleging that unknown occupants were residing in the deceased's property and possibly engaging in illegal activities.

The court dismissed the application, finding that the evidence of urgency was based on hearsay and double hearsay, and did not establish the 'special circumstances' required under subsection 29(3) of the Estates Act.

The applicant was directed to apply for appointment through the standard Rule 74 process.