Johanne N. Morissette

The plaintiffs moved under Rule 59.06(2)(c) to enforce a prior trial judgment's prohibition against the defendants debiting defence costs from participating accounts.

The defendants had allocated 50% of legal costs to these accounts prior to the judgment without seeking leave.

The court found that the prohibition order, which enjoined the defendants from debiting "any costs or expenses incurred... in the defence of these actions," applied retrospectively to all costs, whenever incurred, and was not merely prospective.

The court rejected the defendants' functus officio argument, affirming its jurisdiction under Rule 59.06(2)(c) to carry its orders into operation.

The defendants were ordered to move for leave to charge the previously allocated legal costs.

The appellants, Family and Children’s Services Niagara and Heidi Payne, sought leave to appeal an order dismissing their motion to strike the respondents' claims.

The original motion argued no reasonable cause of action and no duty of care owed by FACS to the parents.

The court dismissed the leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's decision, which appropriately distinguished the facts from precedents where parents were under investigation or children were in care.

The court emphasized the high threshold for granting leave to appeal and the caution required in striking claims.

The appellant appealed a conviction for refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code.

The appellant argued the trial judge misapprehended evidence and misapplied W(D) principles, leading to an unreasonable verdict, particularly regarding the officer's lack of specific notes on the refusal.

The Crown contended the trial judge properly assessed credibility and the verdict was reasonable.

The appellate court found the trial judge's assessment of credibility reasonable, noting that the officer was extensively cross-examined.

The court affirmed that the mens rea for the offence is knowledge or awareness of the prohibited act, and the verdict was reasonable given the appellant's failure to produce a sample after four attempts.

The appeal was dismissed.

The plaintiff, a physician, sued the defendant, also a physician, for physical and sexual assault.

The defendant alleged a prior consensual sexual affair and that the plaintiff's allegations were fabricated due to hospital privilege issues.

The court found the defendant's late disclosure of the alleged affair undermined his credibility.

Based on consistent plaintiff testimony, corroborating witnesses, DNA evidence from a rug matching the defendant's DNA from a mug, and an adverse inference drawn from the defendant's refusal to provide a DNA sample, the court found the sexual assault occurred.

The court awarded $175,000 in non-pecuniary damages and $25,000 in punitive damages, finding the assault was a material contributing factor to the plaintiff's psychological injury.

The applicant sought costs after successfully defending a motion brought by the respondent, who was unsuccessful in obtaining enlarged access and whose conduct caused the litigation.

The respondent, who was self-represented, requested no costs.

The court awarded the applicant $8,000 in costs, inclusive of disbursements and HST, finding that the applicant was entitled to costs under Rule 24 of the Family Law Rules due to the respondent's unreasonable conduct and lack of credibility regarding his financial circumstances and adherence to court orders.

The applicants sought declaratory relief to deny a bonus provision to the respondent, arguing it was criminal, unconscionable, or ultra vires.

The court found a bonus was owing but accepted the applicants' expert opinion on its quantum, significantly reducing the amount claimed by the respondent.

Both parties sought costs.

The court considered contractual full indemnity costs versus partial indemnity, noting the divided success and the absence of settlement offers.

Ultimately, the court ordered no costs, with each party bearing their own, and denied interest on the judgment.

This endorsement addresses the approval of class counsel fees, plaintiffs' costs, defendants' costs, and the Law Foundation of Ontario's levy following a decade-long class action concerning the legality of Par account transactions (PATs) by London Life and Great-West Life.

The court approved class counsel fees of $16.4 million, found the plaintiffs entitled to $4 million in partial indemnity costs from the defendants, and denied the defendants' claim for costs.

It also determined that the Law Foundation of Ontario was entitled to a levy of $1,520,346.50 (repayment of disbursements) plus 10% of the net monetary award ($4,030,000), totaling $5,550,346.50, to be paid from the participating accounts.

The court clarified that a "monetary award" for the purposes of the Class Proceedings Act and the Law Society Act includes funds paid to the benefit of class members through participating accounts, even if not directly distributed to individuals.

The applicants sought a declaratory order that a bonus payment clause in a 2011 loan agreement with the Business Development Bank of Canada (BDC) was unenforceable, arguing it contravened section 347 of the Criminal Code, was unconscionable, or was ultra vires to BDC's statutory objects.

The court dismissed all these arguments, finding the interest rate was not criminal, the transaction was not unconscionable given the applicants' sophistication, and the bonus provision was within BDC's powers.

However, the court ruled on the calculation of "net proceeds" for the bonus, allowing deductions for certified indebtedness, income taxes, and accounting fees, significantly reducing the bonus amount payable to the respondent.

This protracted litigation involved a family dispute over a commercial property, with plaintiffs (minority shareholders and creditors) alleging oppression and conspiracy against defendants (majority shareholders, directors, and related entities).

The plaintiffs claimed the defendants engaged in self-dealing and unlawful acts to deprive them of their beneficial ownership and profits.

The court dismissed both the oppression and conspiracy claims, finding that the plaintiffs failed to establish their reasonable expectations were violated or that an unlawful conspiracy occurred.

The court noted the plaintiffs' own conduct demonstrated a lack of regard for the corporation's welfare and a failure to protect their interests.

A counterclaim by one of the defendants was also dismissed.

The accused applied under ss. 8 and 24(2) of the Charter to exclude blood evidence discovered during the execution of a general warrant authorizing police to search a residence for blood evidence related to an alleged assault.

During the search, investigators located bloodstain and blood spatter evidence in multiple areas of the home, which was later determined to belong to a missing person rather than the alleged assault victim.

The accused argued the police exceeded the scope of the warrant and should have stopped the search and obtained further judicial authorization once the evidence appeared unrelated to the assault investigation.

The court held that the forensic investigator reasonably believed the blood evidence could still relate to the reported assault and was entitled to continue the investigation within the warrant’s scope.

No breach of s. 8 of the Charter was established, and in any event the evidence would not have been excluded under s. 24(2).

A bankruptcy trustee sought directions regarding priority disputes over proceeds of sale from the bankrupt’s property.

The dispute concerned competing claims by a judgment creditor and two mortgage holders.

The court considered the validity of a mortgage granted to an accounting firm for tax services and a later mortgage granted to a lawyer securing unpaid legal fees.

Applying the Bankruptcy and Insolvency Act and the Assignments and Preferences Act, the court held that the earlier mortgage was valid and enforceable but that the later mortgage constituted a preferential transfer granted when the debtor was on the eve of insolvency.

The preferential mortgage was declared void and the proceeds of sale were ordered distributed accordingly.

Following a prior trial and a partial appeal, the court conducted a rehearing to determine the appropriate remedy in a certified class proceeding concerning participating account transactions and an unlawful pre‑paid expense asset used by life insurance companies.

The Court of Appeal had upheld the finding of illegality but directed the trial judge to determine the monetary amounts required to unwind the transactions and restore funds to participating policyholder accounts.

The central disputes concerned the calculation of merger synergy deductions, whether historical amortization charges should be deducted when determining the benefit received by participating accounts, the interpretation of a 6.91% return provision, and the appropriate “effective date” for unwinding the transactions.

The court concluded that amortization expenses since 1997 must be deducted to reflect the “no contribution/no benefit” principle and interpreted the Court of Appeal formula as adding, not subtracting, the 6.91% return to the participating accounts.

The court fixed December 31, 2011 as the effective date and ordered that $284,675,000 be paid to the participating accounts, with cancellation of the pre‑paid expense asset and related amortization charges.

The defendants brought motions to dismiss a civil action commenced by a former teacher alleging workplace harassment, bullying, and constructive dismissal.

The plaintiff had been a member of a bargaining unit governed by a collective agreement between the school board and the teachers’ federation.

The court considered whether it had jurisdiction to hear the dispute or whether the claims fell within the exclusive jurisdiction of labour arbitration under the Labour Relations Act.

Applying the Supreme Court of Canada’s framework from Weber, the court held that the essential character of the dispute arose from the employment relationship governed by the collective agreement.

As the matters should have been addressed through the grievance and arbitration process or before the Ontario Labour Relations Board, the court lacked jurisdiction.

The plaintiff brought a motion seeking declarations that a civil judgment for personal injuries arising from an assault survived the defendant’s bankruptcy under s. 178(1)(a.1) of the Bankruptcy and Insolvency Act and that the statutory stay did not prevent enforcement of the judgment.

The underlying jury verdict found that the defendant deliberately punched the plaintiff once in the head, causing catastrophic injury when the plaintiff fell and struck his head on a curb.

The court considered whether the damages constituted bodily harm “intentionally inflicted” within the meaning of s. 178(1)(a.1).

Relying on jurisprudence interpreting the provision as requiring intent to cause injury rather than merely intent to commit the act, the court held the evidence did not establish that the defendant intended to inflict bodily harm.

The motion to lift the stay and declare the debt non‑dischargeable in bankruptcy was dismissed.

The defendant insurer brought a motion for summary judgment against a third‑party insurer seeking a declaration that the third‑party insurer provided valid coverage to the tortfeasor at the time of a motor vehicle accident.

The moving party argued the third‑party insurer had improperly denied coverage after cancelling the policy prior to the accident.

The court held that the doctrine of privity prevented the moving insurer from asserting contractual rights under the policy because it was not a party to the contract and had not obtained an assignment of rights from the insured.

Further, under s. 258(1) of the Insurance Act, a third party may only proceed directly against an insurer after obtaining judgment against the insured.

As no judgment or assignment existed, the motion for summary judgment was premature and dismissed.

A senior employee with 38 years of service was reassigned from Vice President of Operations to Purchasing Manager following an internal restructuring.

The employee refused the demotion and alleged constructive dismissal.

The court held that the unilateral reassignment involved a significant loss of status, authority, and prestige, amounting to a fundamental breach of the employment contract despite the preservation of salary.

Applying the Bardal factors, the court awarded 24 months’ reasonable notice and found the employee reasonably declined to mitigate by returning to a humiliating subordinate role.

Claims for moral damages were dismissed because the employer’s conduct was not in bad faith.

The plaintiff corporation brought an action seeking unpaid rent for farmland and payment under a written agreement requiring reimbursement for soil preparation work performed for a future crop.

The defendants counterclaimed for conversion of a logging skidder.

The court found the rent claim statute-barred.

After reviewing banking records and witness evidence, the court concluded the defendants had substantially paid their share of the skidder, defeating the conversion counterclaim.

The court further held that the written agreement requiring payment for farm preparation work was valid and not induced by economic duress, and judgment was granted for $18,000 plus pre‑judgment interest.

The moving party sought to change a prior child support order and requested access to a child with significant medical and developmental needs after several years without contact.

The court declined to order access at that time, finding insufficient evidence that renewed contact would be in the child’s best interests given the child’s medical conditions and the parent’s limited understanding of those needs.

The court directed the moving party to consult the child’s pediatrician to obtain medical guidance before any future access request.

The court also addressed child support, imputing income to the moving party due to voluntary unemployment and rejecting a request for credit for alleged overpayments, although current support was suspended due to receipt of social assistance.

The court remained seized regarding the access issue for potential future review.