Ian R. Smith

The appellant, Eric Collins, appealed an interim order from the Ontario Court of Justice that imputed income to him for child support purposes and ordered him to pay child support and arrears.

The appeal also included a motion to introduce fresh evidence and allegations of judicial bias.

The court dismissed the appeal, finding no clear error in the lower court's imputation of income, no evidence of bias, and that the proposed fresh evidence was irrelevant.

The decision reiterated the high standard for appellate interference with interim orders and the deferential standard of review.

The parties, who share equal parenting time and joint decision-making for their four-year-old daughter, could not agree on which public school she should attend.

The applicant mother sought to enroll the child at a school near her home, while the respondent father sought a school near his home.

The court determined that it was in the child's best interests to attend the school near the applicant's home, as it would allow the applicant greater flexibility to secure employment and facilitate the involvement of the child's extended maternal family in before and after-school care.

The plaintiff in a wrongful dismissal action brought a motion to compel production of documents and answers to questions refused during discovery, arguing the defendant waived solicitor-client privilege.

The alleged waiver occurred when a board member disclosed the 'bottom line' of legal advice to a workplace investigator, whose report was subsequently produced in the litigation.

The court dismissed the motion, finding that the board member lacked authority to waive privilege, the disclosure was merely an offhand comment revealing the bottom line of the advice, and the defendant did not rely on the advice to justify its termination of the plaintiff.

The parties separated in 2021 and entered into a separation agreement providing for equal parenting time and joint decision-making with the applicant father having final authority.

The applicant subsequently abused his decision-making authority, repeatedly withheld the children, and made unfounded allegations of physical abuse against the respondent mother to the police and CAS.

Following a trial, the court ordered that equal parenting time continue on a 2-2-3 schedule, but granted sole decision-making responsibility to the respondent mother due to the applicant's history of unilateral decision-making and creation of adult conflict.

The third parties, Sun Life Financial Inc. and Sun Life Assurance Company of Canada, brought a motion to strike the defendants' third-party claim for contribution and indemnity.

The plaintiff had sued the defendants for wrongful termination, claiming damages for lost group benefits, including disability insurance.

The defendants' third-party claim asserted that if the plaintiff became totally disabled while covered by the third parties' policy, then the third parties would be liable.

The court granted the motion to strike, finding that the third-party claim disclosed no reasonable cause of action because the third parties were not alleged to have committed any tort or breach of contract, and the plaintiff's claim against the defendants was limited to damages flowing from wrongful dismissal, not from any fault of the third parties.

The applicant sought a declaration that a missing individual was deceased under the Declarations of Death Act, 2002, or alternatively, an absentee under the Absentees Act.

The applicant also sought to be appointed as a committee for the individual's property and to be authorized to swear the individual's death for estate trustee applications.

The court found the applicant had standing as an "interested person" under DODA, both directly due to her significant efforts and emotional interest, and indirectly by being appointed as a committee under the Absentees Act.

The court declared the individual an absentee and deceased as of the hearing date, August 28, 2023, based on compelling evidence of her disappearance for over seven years and extensive inquiries.

The applicant was appointed as the committee for the individual's property and authorized to swear to her death for estate purposes.

In a pre-trial motion for a first-degree murder case, the court ruled on the admissibility of the accused's statements to police, ante-mortem statements of the deceased, and character evidence.

The court found the accused's statements were voluntary and not obtained in violation of his Charter rights.

The deceased's statement 'No, it's my brother' was admitted for state of mind but not for its truth.

The court also allowed some evidence of the deceased's prior violent acts to support the accused's self-defence claim, while permitting the Crown to lead balancing evidence of the accused's disposition for violence.

The plaintiff landlord sued the defendant guarantor for unpaid rent and damages after the tenant (Mother's Pizza) defaulted on a commercial lease and filed for bankruptcy.

The defendant argued the tenant's failure was due to the landlord's negligence regarding plumbing and pest issues, and sought set-off for these damages and the value of abandoned assets.

The court found the plaintiff proved most of its damage claims, including rent, real estate commissions, utilities, cleaning, and legal fees.

The defendant's set-off arguments were dismissed, as the lease placed responsibility for maintenance and cleanliness on the tenant, and the tenant's financial issues predated the alleged landlord failures.

The court also found the abandoned assets had little value and, per the lease, were deemed abandoned without compensation.

The plaintiff, a former nursing student, sought leave to amend her statement of claim to add Dr. George Heckman as a defendant, alleging defamation and negligent misrepresentation.

Dr. Heckman opposed the motion, arguing the claims were statute-barred by the Limitations Act, 2002, and that the negligent misrepresentation claim failed to disclose a reasonable cause of action due to the absence of a special relationship and reasonable reliance.

The court found that the plaintiff had discovered the material facts for her claims by September 28, 2020, or November 2020 at the latest, making her March 15, 2023 motion to add Dr. Heckman out of time.

Additionally, the negligent misrepresentation claim failed because no special relationship or reasonable reliance was pleaded.

Leave to amend the statement of claim to add Dr. Heckman as a defendant was denied.

The plaintiff paving contractor sued the defendant general contractor for unpaid invoices and extras on a construction project (the Archmill project).

The plaintiff had also refused to perform work on a second, unrelated project (the Burgessville project) until it was paid for the first.

The court found that the plaintiff was entitled to payment for some, but not all, of the disputed extras on the first project.

However, the court also held that the plaintiff's refusal to work on the second project constituted an anticipatory breach of contract.

The defendant was awarded damages for the extra costs incurred to complete the second project, and the court allowed the defendant to equitably set off those damages against the amount owed to the plaintiff on the first project.

The plaintiff's claim for breach of trust under the Construction Act was dismissed.

The Crown appealed the acquittal of the respondent on an "over 80" charge, while the respondent had been convicted of failing to stop after an accident.

The appeal focused on the trial judge's interpretation of the statutory defence under s. 320.14(5) of the Criminal Code (post-driving alcohol consumption) and the exclusion of Intoxilyzer evidence under s. 24(2) of the Charter.

The court found the trial judge erred in concluding there was an "air of reality" to the s. 320.14(5) defence without expert evidence and in characterizing the Charter breach as "egregious" for evidence exclusion.

The appeal was allowed, and a new trial ordered for the "over 80" charge.

The defendant brought a motion to strike portions of the plaintiff's amended statement of claim alleging defamation.

The defamation claim was based on statements communicated by the defendant to the Ontario Motor Vehicle Industry Council (OMVIC) regarding customer complaints and alleged ethical breaches by the plaintiff.

The defendant argued that these statements were protected by absolute privilege.

The court granted the motion, finding that confidential communications of complaints to a statutory body exercising disciplinary powers, as a step incidental to quasi-judicial proceedings, are protected by absolute privilege, thus disclosing no reasonable cause of action for defamation.

PC Forge, a manufacturer of custom forgings, sued BRC Motorsport Inc. for breach of contract and moved for summary judgment.

The parties had an agreement where PC Forge would pre-order raw materials and inventory forgings to reduce lead times, with BRC committing to pay for all purchase orders.

BRC repudiated the contract, failing to pay for a significant portion of ordered and manufactured goods.

The court found a clear contract existed, BRC breached it, and BRC's attempt to rely on unauthenticated terms and conditions was rejected.

The court also found that PC Forge had made reasonable efforts to mitigate its losses.

Summary judgment was granted in favour of PC Forge for damages totaling $205,907.24 plus pre- and post-judgment interest.

The plaintiff, Songbird Life Sciences Inc., brought a motion for summary judgment against the defendants, Connectus Services Ltd. and Connectus Services Ltd. C.O.B. as Connectus Global, for unpaid invoices related to the supply of COVID-19 testing products.

The defendants admitted the debt but argued that a subsequent payment plan constituted a new contract and that they suffered damages due to the plaintiff's refusal to continue supply, which should be set off.

The court found no new consideration for the payment plan to be a new contract and no evidence of damages for set-off.

Summary judgment was granted in favour of the plaintiff.

The respondent father brought a motion to change a 2016 final order concerning parenting time, decision-making, child support, and section 7 expenses for the parties' son.

The applicant mother opposed aspects of the father's claims and sought section 7 expenses for their older child.

The court found material changes in circumstances.

It granted the father sole decision-making authority and the proposed parenting time schedule for the son.

The court ordered the applicant to pay child support and arrears, and to contribute equally to the son's section 7 expenses and arrears.

The applicant's request for section 7 expenses for the older child was dismissed due to lack of pleading, prior dismissal, no material change, and insufficient evidence.

The applicant mother sought to change the child support provisions of a separation agreement, alleging a material change in the respondent father's income due to undeclared cash, improper business deductions, and other sources.

The separation agreement had fixed the father's "estimated" income at $70,000.

The court found that the applicant failed to discharge her onus to prove a material change in the respondent's income for the years 2016-2021, except for a one-time top-up payment for 2020.

The court dismissed the application to change the separation agreement, emphasizing that the starting point for assessing actual income is line 150 of the tax return, and rejecting most of the applicant's claims regarding imputed income from cash, lifestyle, and business deductions.

During a criminal proceeding, the defendants applied to exclude recordings of intercepted conversations.

The Crown sought to admit sessions 381 and 842.

The court found that portions of session 381 were sufficiently audible and contextualized to be admitted, while prejudicial portions regarding personal drug use were excluded.

The court ruled that session 842 was inadmissible hearsay, as the statements had no evidentiary value unless admitted for the truth of their contents.

In a voir dire during a criminal proceeding, the Crown sought to admit evidence of web-browsing intercepts and MMS messages allegedly captured from the accused's cell phone using novel police interception software.

The court reviewed the requirements for authenticating electronic documents under sections 31.1 to 31.3 of the Canada Evidence Act.

The court found that the police witness lacked the necessary expertise and actual knowledge to confirm that the intercepted data accurately reflected what was accessed or displayed on the accused's device.

As the technology was novel and untested by the police, and no expert evidence or corroborating data was provided, the Crown failed to authenticate the electronic documents.

The evidence was ruled inadmissible.

The defendants brought a motion for leave under the Construction Act to seek security for costs against the plaintiff.

The plaintiff had sued for unpaid invoices and lost profits after the defendants terminated a construction contract due to a loss of financing.

The court found good reason to believe the plaintiff, a formerly dormant shell corporation with no apparent assets, had insufficient assets in Ontario to pay a costs award.

The plaintiff failed to demonstrate sufficient assets or that its claim had a good chance of success.

The court granted leave and ordered the plaintiff to post $201,765.54 as security for costs, staying the action until payment.

The applicant brought a motion to remove counsel representing both the individual respondent and the corporate respondent in an oppression application.

The applicant argued that counsel had a conflict of interest in jointly representing both respondents and that counsel might be called as a witness.

The court found no basis to remove counsel on the grounds of being a potential witness.

However, the court held that a conflict of interest existed because the interests of the individual respondent and the corporate respondent were not aligned in the context of a shareholder dispute.

The motion was allowed in part, and counsel was disqualified from acting for the corporate respondent.