W. Danial Newton

The court granted the defendants' motion to discharge a construction lien registered by the plaintiff, Skyway Canada Limited, after the plaintiff failed to attend and participate in cross-examination on the claim for lien as required by section 40 of the Construction Act.

The plaintiff's request for an adjournment was denied, and the court found that the plaintiff's conduct in failing to communicate and participate justified the discharge of the lien.

Costs were awarded to the defendants.

The accused, Khalid Mohamed, was charged with second degree murder in the stabbing death of Steven Burns.

The facts were largely undisputed: Mohamed stabbed Burns, causing his death.

The central issue was whether Mohamed acted in self-defence or whether provocation would reduce the charge to manslaughter.

The court found that Mohamed had been robbed and assaulted by Burns and others, and that Mohamed stabbed Burns during a struggle for control of a knife.

The court concluded that the Crown had not proven beyond a reasonable doubt that Mohamed’s actions were unreasonable in the circumstances, and acquitted him of second degree murder.

The applicant sought judicial review of a decision by the Information and Privacy Commissioner (IPC) dismissing his appeal regarding a freedom of information request.

The applicant had requested records from the school board relating to an independent investigator retained by the Integrity Commissioner to investigate a trustee.

The IPC found that the requested records were not in the custody or control of the school board and that the board had conducted a reasonable search.

The Divisional Court applied the reasonableness standard of review and upheld the IPC's decision, finding no error in the IPC's application of the custody or control test and no denial of procedural fairness in the IPC's refusal to merge the applicant's appeals.

The court considered whether damage to Mr. Hood’s seasonal cabin was caused by an insured peril (windstorm) or by settling, which was excluded under the insurance policy.

After reviewing expert evidence and witness affidavits, the court found that a windstorm was the direct cause of the loss and that the exclusion for settling did not apply.

The court declared the loss covered under the policy.

The appellant appealed the dismissal of her action for damages arising from a trip and fall on a municipal sidewalk.

The trial judge had found the municipality was not liable under s. 44(3)(a) of the Municipal Act, 2001, as it did not know and could not reasonably have been expected to know about the state of repair.

On appeal, the appellant argued the trial judge failed to assess the adequacy of the inspections, failed to weigh business record evidence, and reversed the onus of proof.

The Divisional Court dismissed the appeal, finding no errors in the trial judge's assessment of the inspection adequacy, weighing of evidence, or application of the burden of proof.

The court granted a motion to dispense with service of the statement of claim and motion on the deceased’s estate, finding that the plaintiff had made extensive but unsuccessful efforts to locate a representative for the estate.

The court relied on the Rules of Civil Procedure and relevant case law to permit the proceeding to continue in the absence of a representative, and ordered that any surplus proceeds be paid into court on notice to the beneficiaries.

Costs were fixed at $8,943.47.

The plaintiff, Lac Seul First Nation, sought a Norwich order compelling the Bank of Nova Scotia to provide information identifying individuals and corporations alleged to have defrauded the plaintiff.

The motion was brought on notice to the Bank, which took no position, and without notice to the other defendants.

The court found that the plaintiff had a bona fide claim and that the Bank was the only practicable source of the information.

The order was granted as the interests of justice and necessity were established.

The respondent, Mark Jeffrey Buckley, pleaded guilty to possession of cocaine for the purpose of trafficking after police discovered drugs in an apartment during a home takeover.

As a permanent resident of Canada originally from Jamaica, Buckley faced deportation as a collateral immigration consequence of his conviction.

The Crown sought a two-year prison sentence, while the defence requested a conditional sentence to preserve Buckley's immigration appeal rights and support his rehabilitation.

The court ultimately sentenced Buckley to a conditional sentence of two years less a day, followed by two years of probation, finding that the threat of deportation and strict conditions would sufficiently deter him.

This decision addresses costs following a four-day trial where the applicant, JMS, was awarded a net recovery of $34,249.30 after a set-off for the respondent's, Bell's, successful counterclaim.

Both parties sought costs, but no Rule 49 offers attracted formal cost consequences.

Despite the trial judge's initial statement of divided success, the court found JMS to be the successful party for costs purposes, having succeeded on 85% of its claim compared to Bell's 9% counterclaim success.

Bell's offer was deemed not "sufficiently close" to JMS's recovery to trigger cost consequences.

The court fixed costs payable by Bell to JMS at $37,500 plus HST and disbursements.

The applicant, charged with manslaughter, brought an application to sever his trial from his co-accused, who was charged with second-degree murder arising from the same incident.

The applicant argued that severance would allow for a shorter judge-alone trial and avoid potential delay issues.

The Crown opposed the application, citing the joint enterprise nature of the allegations and the need to avoid duplicating testimony.

The court dismissed the application, finding that the charges were factually and legally connected, and the applicant failed to establish that a joint trial would work an injustice.

The applicant was successful in obtaining an order for the sale of property owned jointly with the respondent.

The applicant sought costs on a full indemnity basis of $34,377.

The court noted the motion was not complex, the respondent did not deliver responding materials, and there was significant duplication of effort in the applicant's dockets.

The court fixed the costs of the motion at $7,500 inclusive of disbursements and HST.

The appellant physician appealed a disciplinary tribunal's decision revoking his licence to practise medicine for professional misconduct and incompetence.

The misconduct findings were based on the appellant spreading COVID-19 misinformation, issuing improper vaccine exemptions, and failing to cooperate with the regulator's investigation.

The appellant argued that the tribunal's decision unjustifiably infringed his freedom of expression.

The Divisional Court dismissed the appeal, upholding the tribunal's Doré proportionality analysis and finding that the revocation of the appellant's licence was a proportionate response to protect the public interest and maintain the integrity of the medical profession.

The accused, Richard Gurhan, was found guilty of possession of cocaine for the purpose of trafficking, possession of Percocet, possession of proceeds of crime exceeding $5000, and possession of a loaded and prohibited or restricted firearm.

This decision outlines the reasons for sentencing.

The court considered the serious nature of the offences, particularly drug trafficking and firearm possession, and the impact on the community, while also weighing the offender's strong prospects for rehabilitation as a youthful, first-time offender with no prior criminal record and a supportive background.

A global sentence of four and a half years imprisonment was imposed, reduced to an effective four years after Downes credit for restrictive bail conditions.

The accused, Khalid Mohamed, facing a second-degree murder charge, brought a Scopelliti application seeking to introduce evidence of the victim's prior violent convictions to support a self-defence claim.

The Crown conceded the relevance of some convictions but opposed the entire record.

The court, applying principles from Scopelliti and Golov, found that certain convictions for assault with a weapon, break and enter, assault, and possession of property obtained by crime were probative and admissible, while others were not.

The application was granted in part.

This decision addresses the costs of an unsuccessful application for partition and sale of jointly owned property.

The applicant's motion was dismissed because it could prejudice the respondent's family law property claims.

The respondent sought costs, which the applicant argued should be deferred.

The court ruled that costs should not be deferred, as the applicant proceeded with the motion despite the respondent's prior suggestion to defer it until trust claims were resolved.

The respondent was awarded costs fixed at $3000.

The plaintiff's action against the Bank of Montreal, initiated after a previous similar claim was dismissed in Small Claims Court, was dismissed by the Superior Court of Justice under Rule 2.1.01 as frivolous, vexatious, and an abuse of process.

The court found the statement of claim incomprehensible, improperly served, and a re-litigation of a dispute over a $25 wire fee and account issues, noting the plaintiff's history of similar vexatious litigation.

The applicant mother was completely successful on an urgent motion for the return of the children after the respondent father wrongfully retained them following a summer visit.

The mother sought substantial indemnity costs of $2,565.

The father argued for no costs or a reduced amount, claiming the mother was not completely successful because police enforcement was not ordered.

The court rejected the father's argument, noting police enforcement was only omitted because the father undertook to comply.

Finding the father's failure to return the children to be inappropriate behaviour, the court awarded the mother substantial indemnity costs of $2,565 plus HST.

This urgent motion addressed a father's unilateral relocation of two of his three children, aged 11 and 13, from Marathon to Levack (over 700 km away) without the mother's consent or a court order, in violation of the amended Divorce Act.

The mother immediately sought an order for the children's return.

The court found the father's actions unlawful, ordered the immediate return of the children to the mother's care in Marathon, and temporarily established the mother's residence as the children's primary residence.

The court also granted the mother costs of the motion.

The accused, Fatah Kulmiye, applied to attend his trial for indictable offences by video conference.

The Crown opposed the application.

The court interpreted sections 715.24 and 715.233 of the Criminal Code, concluding that Crown consent is required for an accused to appear by video conference at a trial for an indictable offence.

The court found that section 715.24 does not provide broad discretion to allow remote attendance without Crown consent for proceedings expressly authorized elsewhere in the Code.

The application was denied, also considering the seriousness of the charges and the lateness of the application.

The accused was tried on historical allegations of sexual interference, invitation to sexual touching, and sexual assault involving his former partner’s child.

Applying the W. (D.) framework, the court held that although peripheral memory gaps by a child witness do not necessarily undermine credibility, significant reliability concerns arose from the complainant’s need to repeatedly refresh memory and from a material detail about a locked door surfacing only in cross-examination.

The court found that prior disclosures to family members could not bolster credibility as prior consistent statements.

Even if the accused’s testimony were not believed, the complainant’s evidence left a reasonable doubt.

Acquittals were entered on all counts.