Thomas A. Bielby

On an application for a directed verdict in a manslaughter jury trial arising from a fatal shooting during an attempted robbery, the court held the Crown's circumstantial case did not provide a reasonable and logical evidentiary basis to infer that the accused was the getaway driver.

Cell phone evidence and vehicle-rental evidence were insufficient to bridge the inferential gap in light of direct eyewitness evidence that only two men occupied the getaway car.

The court further held the Crown could not, at that stage, materially alter its theory of liability from aiding as the driver to a broader participation theory.

The application was granted, a not guilty verdict entered, and the jury discharged.

The plaintiff obtained an ex parte order for the interim recovery of personal property (geosynthetic clay liner and related materials) after the defendant failed to pay a $30,006 invoice that included a retention of title clause.

The defendant moved to set aside the order, arguing the property was defective, had already been installed, and that the seized property belonged to a third party.

The court dismissed the defendant's motion, finding the plaintiff met the 'substantial grounds' test for interim recovery of chattels, but amended the order to allow the defendant to recover the property by paying the invoice amount into court as security.

The plaintiff moved for summary judgment after goods worth $263,520.00 were stolen while in the defendant carrier’s possession during transport from Toronto to Calgary.

The central dispute was whether the value of the consignment had been declared on the face of the contract of carriage so as to avoid the regulatory limitation of liability.

Applying the summary judgment framework, the court held there was no genuine issue requiring a trial and concluded that the contract of carriage was not limited to the bill of lading, but also included oral representations and the invoice referenced on the signed bill of lading.

Because the invoice showing the full value formed part of the contract of carriage and was referenced on its face, the plaintiff was entitled to judgment for the full value, less any amount already paid, with interest.

In a criminal prosecution for importation, conspiracy, and possession of heroin for the purpose of trafficking, the accused brought a mid-trial application for a mistrial based on late disclosure and non-disclosure of documentary evidence and a civilian witness statement.

The court held that the Crown failed its duty to provide full and timely disclosure, particularly where hundreds of pages of documents intended to connect the accused to a searched apartment were produced only immediately before tendering, and where the civilian witness statement was obtained and disclosed only on the day of testimony.

The court rejected the submission that defence counsel had made a tactical decision to remain passive and found a real danger of prejudice to the accused's right to make full answer and defence.

Given the stage of the trial and the evidence already received, an adjournment was not a viable remedy.

A mistrial was declared.

In this family law costs endorsement following a motion to strike, the applicant sought full indemnity costs on the basis of the respondent's alleged bad faith.

The court found repeated wilful breaches of court orders, including consent orders, and held that the respondent acted in bad faith within the meaning of Rule 24(8) of the Family Law Rules.

Although full recovery costs were mandatory, the amount claimed was found excessive.

The court fixed costs at reduced full recovery amounts for fees and disbursements, plus HST.

Following a 22-year marriage, the applicant sought spousal support as the sole issue at trial.

The court found that the applicant had been financially dependent during the marriage and continued to suffer economic disadvantage arising from it.

Although the timing of the respondent's bankruptcy and work cessation raised suspicion, the court accepted the medical evidence that he was currently unable to work and based his income on actual earnings, employment insurance, and long-term disability benefits.

The court imputed annual income of $30,000 to the applicant, applied the Spousal Support Advisory Guidelines, rescinded the prior interim order, and made a final support order with stepped amounts for 2013, 2014, and ongoing from 2015.

This was a costs endorsement following the dismissal of a motion to stay the action on forum conveniens grounds.

The successful plaintiff sought substantial indemnity costs, but the court held that only partial indemnity was appropriate.

The court also considered an earlier discovery-related motion for which costs had been deferred, but declined to order specific costs for that motion and instead factored it into the overall costs award.

The defendants were ordered to pay the plaintiff $7,167.59 in costs.

The Crown appealed an acquittal on a charge of breaching a prohibition order by attending a municipal sports facility while children were present elsewhere in the building.

The appeal court held the trial judge erred in all three grounds for acquittal: the incorrect date in the information was surplusage and should have been addressed through submissions and possible amendment; the declaration that the words “community center” were inoperative under s. 161 required a properly noticed constitutional challenge; and the facility met the ordinary meaning of a community center within the statutory purpose of protecting children.

The court declined to enter a conviction because potential defences of due diligence, lawful excuse, and officially induced error had not been determined.

The appeal was allowed and a new trial ordered.

Summary conviction appeal from convictions for impaired driving and refusing to provide a breath sample arising from erratic operation of a tractor trailer followed by a civilian witness into a truck stop.

The appellant argued the trial judge improperly inferred identity and care and control from circumstantial evidence, relying on alternative explanations such as a passenger or attendant.

The appeal court held that alternative theories not grounded in evidence were speculative, and that the totality of the evidence supported the finding that the appellant was the driver.

The court also held that the police had reasonable and probable grounds for the breath demand even apart from proof beyond a reasonable doubt of identity.

The Crown appealed a sentence imposed after the respondent pleaded guilty to offences under ss. 153(a) and 153(c) of the Customs Act for falsely declaring imported goods and wilfully attempting to evade duties and taxes exceeding $20,000.

The sentencing judge had granted a conditional discharge with probation and community service.

The appeal court found the sentencing judge erred by concluding the respondent had not deliberately attempted to evade duties despite the guilty plea to a wilful offence.

While the judge properly considered civil penalties and immigration consequences, the deliberate nature of the offence made a conditional discharge contrary to the public interest.

The appeal court set aside the discharge and imposed fines while maintaining probation and community service.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg under the Criminal Code.

The appeal argued that the trial judge erred in determining that the breath samples were taken within two hours of the appellant last operating the vehicle, thereby improperly applying the statutory presumption under s. 258.

The appellate court reviewed the trial judge’s credibility findings concerning a civilian witness and police officer regarding the timing of events.

It held that the trial judge was entitled to accept portions of the witness’s evidence while rejecting others and that the factual findings were supported by the evidence.

No palpable or overriding error was found in the determination that the breath tests were taken within the required two‑hour window.

During a criminal trial for drug importation, the accused challenged a second strip search conducted by RCMP officers after a prior search by border officials had already occurred.

The search was conducted in a cell with the door open and video surveillance operating, without supervisory authorization and without confirming whether a prior strip search had already taken place.

The court held that the second strip search was conducted as a matter of routine and lacked reasonable grounds, breaching the accused’s s. 8 Charter right against unreasonable search.

Applying the framework from Grant, the court concluded that the seriousness of the institutional breach outweighed the other factors.

The accused’s recorded police statement, obtained shortly after the search, was excluded under s. 24(2).

Following an unsuccessful motion by certain defendants to set aside a noting in default, the court addressed costs.

The plaintiff sought costs on a substantial indemnity basis totaling $6,796.95 inclusive of fees and HST.

The court declined to award costs at that level and instead fixed costs on a partial indemnity scale.

Costs of $4,570.00 plus HST were ordered payable by specific defendants to the plaintiff.

Following a four‑day family law trial in which the respondent obtained periodic and lump sum support, the successful party sought costs on a substantial indemnity basis.

The court held that, although the respondent was entitled to costs as the successful party, the circumstances did not justify substantial indemnity.

No settlement offers had been filed and the applicant’s conduct did not warrant the higher scale.

The court therefore awarded costs on a partial indemnity basis and accepted the respondent’s bill of costs as reflecting the time spent on the matter.

Following a ten-day self-represented family law trial, the court addressed the issue of costs.

After reviewing the parties’ submissions, the judge concluded that success in the litigation was divided.

Applying the general principle that costs follow the event but recognizing that neither party achieved clear success, the court declined to award costs to either side.

The court therefore ordered that there be no order as to costs.

Residential subdivision developers commenced an action alleging that a municipality overcharged development charges between 2004 and 2008 and sought damages.

The municipality brought a Rule 21 motion seeking determination of a preliminary question of law concerning the legality of development charges imposed under the Development Charges Act, 1997, a municipal by-law, and subdivision agreements.

The court held the motion was not brought promptly within the meaning of Rule 21.02, as it was filed years after the pleadings and after the trial record had been set down.

In any event, the court found the legality of the municipality’s “top up” charge based on indexed development charges was not plain and obvious and required determination at trial after full evidence and argument.

The plaintiff was injured in a skiing accident and subsequently underwent spinal surgery performed by the defendant.

During the surgery, an instrument slipped, causing further nerve damage.

The defendant informed the plaintiff of the surgical accident the following day.

The plaintiff commenced an action against the ski resort but did not sue the defendant until nearly five years later, after receiving an expert report from the ski resort's counsel suggesting the defendant breached the standard of care.

The defendant moved for summary judgment on the basis that the action was statute-barred.

The court granted the motion, finding that the plaintiff failed to exercise due diligence in investigating the surgical accident, and the claim was discoverable well before the receipt of the expert report.

Following a high‑conflict separation, the court conducted a trial addressing child support, spousal support, equalization of net family property, access, and divorce.

The evidence revealed prolonged litigation, non‑payment of support by the father, and significant parental conflict affecting the children.

The court found both parents contributed to the breakdown of the parent‑child relationship, including the father’s anger issues and the mother’s involvement of the children in litigation and resistance to facilitating access.

The father’s income was imputed at $65,000 for support purposes, resulting in guideline child support and limited-term spousal support.

The mother was ordered to pay an equalization payment, and custody remained with her, while access was left to occur only if initiated by the children.

Following a successful disability insurance action, the plaintiff sought costs on a substantial indemnity basis, arguing the defendants’ conduct before and after litigation justified enhanced costs.

Alternatively, the plaintiff sought partial indemnity costs up to the date of a settlement offer and substantial indemnity thereafter under Rule 49.

The defendants argued costs before the offer should be reduced due to the plaintiff abandoning a related wrongful dismissal claim.

The court held that partial indemnity costs remained the default before the settlement offer but reduced those fees by 25% to account for the abandoned claim.

Substantial indemnity costs were awarded from the date of the offer forward, resulting in a total costs award exceeding $114,000.

Following a five‑day family law trial in which both parties were self‑represented, the court addressed costs and implementation of a previously ordered parenting coordinator.

Each party had made settlement offers that were either not met or too outdated to be considered.

The court found significant litigation misconduct and unreasonable behaviour by both parties, including excessive disclosure demands and failure to comply with access orders on one side and bullying communications and resistance to a parenting coordinator on the other.

Concluding that neither party was sufficiently more successful and that their conduct contributed equally to the litigation, the court declined to award costs.

The claims for costs by both parties were dismissed.