John R. McCarthy

The defendant vehicle owner moved for summary judgment to determine whether her automobile insurer or the plaintiff's insurer was responsible for payment of a settlement arising from a motor vehicle accident.

The vehicle had been purchased by the moving party for her son, who was unlicensed, and left entirely in his possession and control.

The court found that the moving party gave express consent to possession and implied consent to operate the vehicle on the highway, as it was objectively and subjectively foreseeable that her son would drive it despite any prohibition.

Any driving prohibition was ineffective and unenforced.

The moving party was found vicariously liable under s. 192 of the Highway Traffic Act, and her insurer was ordered to pay the settlement.

An estate trustee brought an application for court opinion, advice, and direction regarding the sale of estate real property subject to successive purchase options in a testator's will.

The respondent had purported to exercise his first right of purchase by email within 30 days of receiving notice, without submitting a formal offer or proof of financing.

The court held that the respondent validly exercised his option through informal notice, as the will imposed no formal requirements.

The court further held that fair market value was to be determined as of the date the respondent gave notice of his intention to purchase, not as of the date of the life tenant's death, and accepted the estate trustee's appraisal valuing the property at $1.8 million following a municipal by-law exemption permitting separate conveyance of the two lots.

The respondent was afforded 30 days to submit a written offer at the appraised value or be deemed to have waived his rights.

Costs endorsement following the dismissal of an emergency application.

The applicant in the underlying proceeding had sought to enjoin the respondent city from exercising rights under an easement agreement, which had been confirmed by both the Superior Court and the Court of Appeal.

The court found the application constituted a collateral attack, an abuse of process, and was brought on unreasonably short notice with voluminous materials.

The city sought substantial indemnity costs of $25,150.41, which the court awarded in full, finding the amount proportionate given the unreasonable and ill-advised nature of the proceeding.

The defendant was convicted of child luring on December 30, 2024, and subsequently applied for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging a violation of the right to be tried within a reasonable time.

The total delay from the laying of the information on March 16, 2022, to the conclusion of trial on October 24, 2024, was 31 months and 8 days, exceeding the presumptive 30-month ceiling established in R. v. Jordan.

However, the court attributed 187 days of delay to the defence, reducing the net delay to approximately 25 months, which falls below the presumptive ceiling.

The court found that the defence failed to raise the section 11(b) issue in a timely manner, only doing so on the final day of trial, and demonstrated an indifferent attitude toward expediting the proceedings.

The application was dismissed.

The defendant was convicted after a judge-alone trial of sexual luring contrary to s. 172.1(1)(b) of the Criminal Code.

The defendant communicated in graphic and sexually explicit terms with a fictional 14-year-old girl named Danae over a four-day period in October 2016, arranged to meet with her for sexual activity, and was caught in a sting operation conducted by a citizens' organization called Creepbusters.

At the time of the offence, the defendant was an elementary school teacher and girls volleyball coach.

The Crown sought a penitentiary sentence of 3.5 to 4 years.

The defendant sought a conditional sentence or intermittent sentence.

The court imposed a 3-year penitentiary sentence along with ancillary orders including DNA sampling, a 10-year firearms prohibition, 20-year SOIRA registration, and a 10-year s. 161 order restricting employment with minors and internet use.

The plaintiffs moved for summary judgment against the defendant insurance company seeking payment of a remnant judgment balance of $353,520.92 under a Mortgage Brokers Errors and Omissions Liability Policy.

The plaintiffs had obtained a default judgment against a mortgage broker and related parties for misappropriating trust funds.

The court determined that while the policy contained a fraud endorsement, it was limited to coverage for failure to advance or secure mortgage funds.

Since the liability arose from failure to repay trust funds held in trust rather than from failure to advance mortgage funds, the fraud endorsement did not apply.

The general policy exclusions for intentional, dishonest, and fraudulent acts therefore removed all coverage, and the action was dismissed.

The accused, B.B., was charged with multiple sexual offences against his biological daughter, including sexual assault, invitation to sexual touching, sexual interference, confinement, and administering a noxious thing.

The complainant, a child, gave two videotaped statements and testified at trial, but her evidence was inconsistent and lacked present memory of many details.

The court found significant frailties and inconsistencies in the complainant’s evidence, as well as a lack of corroboration.

The accused’s testimony was found to be measured and reasonable.

The court concluded that the Crown had not proven the charges beyond a reasonable doubt and acquitted the accused on all counts.

The plaintiff, Kathleen MacNeill, sought damages for injuries allegedly sustained after ingesting a deliming agent in coffee served at a McDonald’s drive-thru.

The court found that while the incident was unsettling, the evidence did not establish that the plaintiff suffered any serious or permanent injury causally related to the incident.

The court rejected the plaintiff’s claims for general, income, and future care damages, awarding only $5,000 for temporary pain and inconvenience.

The decision turned on findings of credibility, causation, and the weight of expert and lay evidence.

The court considered a motion by the plaintiff to strike portions of the defendant’s statement of defence and counterclaim in a property dispute.

The court found that much of the defendant’s pleading was irrelevant, scandalous, or pleaded evidence rather than material facts, and that it amounted to an abuse of process.

The court struck numerous paragraphs and ordered the defendant to serve and file a fresh, compliant pleading, with the process to be supervised by the court.

The plaintiff, D.H. Anderson Investments Inc., sought an interim and permanent injunction to remove the defendant, Wilma Castanares, from its property and to strike portions of her statement of defence and counterclaim.

The court granted the injunction, finding that the plaintiff had a strong prima facie case for ownership, that irreparable harm would result if relief was not granted, and that the balance of convenience favoured the plaintiff.

The court found no evidence of a gift or constructive trust in favour of the defendant and held that her occupation of the property was insufficient to establish any legal or beneficial interest.

The plaintiff, Avi Berger, moved to stay a Landlord and Tenant Board (LTB) application pending the outcome of his Superior Court action, in which he claims a beneficial ownership interest in the property at issue.

The defendant Sammie Millis, the current owner, opposed the motion.

The court dismissed the motion, finding that the LTB has sole jurisdiction over tenancy and eviction matters, and that the Superior Court action regarding beneficial ownership can proceed independently.

The court found no special circumstances to warrant a stay and held that granting one would be unjust to the landlord.

This decision addresses a 35-year marital history between Lana Morris and Joseph Morris, culminating in their separation and subsequent family law litigation.

The court resolves complex property, equalization, and tort claims, including the valuation and division of pensions, vehicles, and business assets, as well as claims for damages arising from domestic violence.

The court finds that the parties were not living separate and apart during the disputed years, includes the value of the NH pension in the equalization calculation, and awards general and aggravated damages for tortious conduct.

The court also grants a permanent restraining order and provides detailed directions on costs.

The court addresses costs and pre-judgment interest following the successful actions of Gary and Jennifer McKenzie against Fabco Holdings Inc., Jaymor Specialty Housing General Partner Inc., Your Community Realty Inc., and Gerald Anthony (also known as Gerald Van Erp).

The McKenzies were awarded substantial indemnity costs and pre-judgment interest in both the "Fabco claim" and the "Title claim," with the court apportioning costs between the defendants based on their conduct and the complexity of the litigation.

The decision discusses the principles guiding costs awards, including proportionality, indemnity, and the impact of vexatious conduct.

The court granted summary judgment in favour of HSBC Bank of Canada and HSBC Securities Canada Inc., dismissing Kenneth James's claims for conversion, intentional interference with economic relations, defamation, and punitive damages.

The court found that HSBC acted within its contractual and legal rights in freezing and managing the plaintiff’s accounts following criminal charges and a restraining order, and that all funds (except those in Hong Kong, over which HSBC Canada had no control) were returned to the plaintiff after his acquittal.

The court held there was no genuine issue requiring a trial.

The court dismissed GIPOA’s claim for proprietary estoppel against the City of Orillia regarding the use of docks on a city-owned water lot.

The court found that the City had not made an unambiguous promise or assurance to GIPOA, that GIPOA’s reliance was not reasonable, and that the public interest and municipal legislative authority outweighed any equitable claim.

The City’s enforcement of its policies and by-laws was found to be reasonable, and the City was entitled to change its policies and by-laws as circumstances required.

The appellant, Raimonds Mark Stivrins, appealed his conviction for operating a motor vehicle with a blood alcohol concentration at or above the legal limit.

The appeal challenged the trial judge’s findings regarding care and control, the admissibility and weight of certain evidence, and the trial judge’s assessment of credibility.

The Superior Court of Justice found no palpable or overriding error in the trial judge’s factual findings and dismissed the appeal.

The accused, J.B., was charged with sexual luring under s. 172.1(1)(b) of the Criminal Code.

The Crown alleged that J.B. communicated with a person he believed to be under 16 years old (a fictitious 14-year-old created by "Creep Hunters") for the purpose of facilitating sexual interference.

The court found the evidence of the "chatter" (B.M.) and the "Creep Hunters" volunteer (W.V.) highly credible and reliable.

Circumstantial evidence, including data from the accused's phone and his presence at the planned meetup location, overwhelmingly established his identity and intent.

The court rejected the defence's arguments regarding altered screenshots and the honest belief in the victim's age.

J.B. was found guilty.

The defendant Intact Insurance brought a motion for leave to amend its Third-Party Claim against Ashley Zenguele and Justyne Burger-Samuels.

The defendant WTH Car Rental ULC opposed the motion, arguing potential prejudice.

The court applied Rule 26.01 of the Rules of Civil Procedure, finding that WTH Car Rental ULC lacked standing to oppose the amendment as it was not a party to the Third-Party Claim.

The proposed amendments did not introduce a new cause of action and arose from the same factual matrix.

The court found no non-compensable prejudice to WTH Car Rental ULC, noting that any potential exposure to judgment was an outcome of the amended claim, not the amendment itself.

Leave to amend was granted, with a condition that WTH Car Rental ULC be notified of any default judgment proceedings.