Robert E. Charney

In a civil jury trial for damages from a motor vehicle accident, the court ruled on whether a proposed jury question concerning the plaintiff's lost earning capacity should be submitted.

The court found insufficient evidence to allow the jury to reasonably calculate or quantify this loss without speculation, as there was no adduced evidence of the plaintiff's annual income before or after the accident.

Citing established jurisprudence, the court determined that a question should only go to the jury if there is "reasonable evidence" to support a judicial finding.

Consequently, the question regarding loss of earning capacity was not put to the jury.

The respondent, Claudette Ann-Marie Miller, brought a motion under Rule 49.09 of the Rules of Civil Procedure to enforce an offer to settle made by the applicant, David Anthony Martin, on September 2, 2015, which she claimed to have accepted on March 13, 2017.

The applicant argued that the offer was implicitly withdrawn by earlier rejections, subsequent oral discussions, and changed circumstances involving other court proceedings.

The court, relying on Rule 49 and appellate precedent, held that a Rule 49 offer can only be withdrawn in writing and is not terminated by rejection or counter-offers.

The court found the respondent's acceptance valid and granted judgment in terms of the accepted offer, dismissing the applicant's arguments as speculative.

The accused was tried on charges of sexual assault, sexual interference, and invitation to sexual touching arising from an alleged incident at a childhood pool party.

The defence sought to call a memory expert to challenge the reliability of the complainant’s delayed and partially recovered recollection, but the court excluded that evidence under the Mohan framework because the proposed opinion was unnecessary and intruded on credibility assessment.

Applying the criminal standard and treating peripheral inconsistencies with caution in light of the complainant’s age at the time of the events, the court found the complainant credible and, more importantly, reliable on the core narrative.

The court rejected the suggestion that the memory had been implanted or contaminated by the complainant’s mother and entered convictions on all three counts.

The appellant, Mr. Wong, appealed his conviction for driving over 80, arguing that the trial judge erred in finding he waived his right to counsel and in not requiring a "Prosper warning." The appellant contended that the trial judge misapprehended evidence regarding his understanding of his rights and that a Prosper warning was necessary given his initial statement that he would like to speak with a lawyer.

The Superior Court dismissed the appeal, finding no material misapprehension of evidence.

The court clarified that a Prosper warning is only required when a detainee, after asserting the right to counsel, makes diligent but unsuccessful attempts to contact a lawyer and then indicates a change of mind, which was not the case here as the appellant declined counsel at the police station without making any attempts to contact one.

The Law Society of Upper Canada brought a motion to determine the penalty for Lee Edward Fingold, who was previously found in contempt of court for breaching a 2010 order prohibiting him from practicing law or providing legal services.

The court considered Fingold's history of similar breaches, his medical condition, and sentencing principles for contempt.

Despite the LSUC requesting 9-12 months incarceration, the court imposed a $5,000 fine, finding that incarceration was not appropriate given the circumstances and that a financial penalty would serve as a sufficient deterrent.

The applicant sought a bail review under s. 520 of the Criminal Code to vary his house arrest conditions to allow a work exception.

He argued that his inability to afford his counsel of choice and his desire to work to pay for counsel constituted a material change in circumstances.

The court dismissed the application, finding that the proposed plan lacked adequate surety supervision and that the applicant's financial difficulties regarding his counsel of choice did not amount to a material change affecting the secondary ground concerns that justified the original strict conditions.

The Crown applied for certiorari and mandamus to quash a Justice of the Peace's decision to return a vehicle seized as offence-related property under the Criminal Code and Controlled Drugs and Substances Act (CDSA).

The Justice of the Peace had refused detention, considering irrelevant factors such as the accused's presumption of innocence and potential financial hardship.

The Superior Court found that the Justice of the Peace erred by failing to apply the correct legal test under s. 490(1) of the Criminal Code, which provides limited discretion for detention orders, particularly when property is required for a future forfeiture hearing.

The court granted the application, quashed the return order, and remitted the matter for proper consideration.

The plaintiff sought summary judgment for damages for breach of an employment contract, alleging entitlement to 180 days' notice or pay in lieu upon termination.

The defendant denied this, claiming the contract provided for Canada Labour Code minimums and that the plaintiff's relied-upon "Schedule A" was a forgery.

The court found significant discrepancies in the plaintiff's evidence regarding Schedule A, suggesting it was forged and not part of the original agreement.

However, due to unresolved questions regarding other email exchanges and the potential for inadvertent non-disclosure of electronic evidence, the court declined to grant summary judgment at this stage.

Instead, it issued directions for further document disclosure, cross-examinations, and a subsequent hearing to fully resolve the factual disputes.

The plaintiff contractor was hired to renovate a barn for the defendants under a lump sum contract.

The contractor claimed the defendants agreed to a second contract with an increased price for a third floor, and also claimed for various oral extras.

Two unpaid suppliers registered construction liens against the property.

The court found that the defendants only agreed to the original contract and that no third floor was built.

The court assessed the claimed extras, allowing some and dismissing others.

The court also determined the owners' holdback liability to the lien claimants under the Construction Lien Act.

The plaintiffs obtained an ex parte interim injunction preventing the defendant lenders from calling in a loan or enforcing a general security agreement.

On the return of the motion, the court set aside the injunction, finding the plaintiffs deliberately failed to disclose a material 'additional security' clause that gave the lenders majority equity and control of the corporation.

The court also granted the defendants' cross-motion to dismiss the action brought in the corporation's name, as the individual plaintiff lacked the corporate authority to commence litigation on its behalf without a board resolution.

Kingsway appealed an arbitrator's decision ordering it to indemnify Dominion for statutory accident benefits paid following a four-vehicle chain reaction collision.

The arbitrator found that s. 9(3) of the Fault Determination Rules did not apply because the fourth vehicle was stationary, and applied ordinary tort rules to find Kingsway's insured 100% at fault.

The Superior Court allowed the appeal, holding that s. 9(3) applies to the three vehicles in motion regardless of the stationary fourth vehicle.

Following the Court of Appeal's decision in State Farm, s. 9(3) precludes 'leapfrogging' loss transfer claims between vehicles that do not directly collide.

The applicant, an 81-year-old widow, brought an urgent motion for a Mareva injunction and a Norwich order against the respondent, who had acted as a bookkeeper for the applicant's late husband.

The applicant alleged that the respondent fraudulently transferred $235,567.90 from a joint bank account to her own accounts.

The court granted an interim freezing order over the respondent's bank accounts, finding a strong prima facie case of fraud and a serious risk of dissipation.

The court also granted a Norwich order requiring the bank to disclose the respondent's account information to assist in tracing the funds.

The applicant mother sought costs following the dismissal of the respondent father's motion to change a final consent order regarding access, child support, and spousal support.

The court determined that the costs order was enforceable by the Family Responsibility Office as support payments.

While the applicant was largely successful, her offer to settle did not comply with Rule 18 of the Family Law Rules, and a partial settlement on access was reached.

The court declined to award costs on a full recovery basis and dismissed the respondent's allegations of the applicant's bad faith.

The court awarded the applicant $8,000 in costs, payable at $500 per month.

Following a successful motion for summary judgment in a wrongful dismissal action where the plaintiff was awarded $20,904, the parties made written submissions on costs.

The plaintiff sought substantial indemnity costs of $67,959 or partial indemnity costs of $57,082.

The court rejected the claim for substantial indemnity costs, finding the defendant's conduct did not warrant them.

The court also declined the defendant's request to deny costs under Rules 57.05 or 76.13, noting that proceeding by summary judgment achieved the same efficiencies as the Simplified Procedure.

Considering proportionality and the plaintiff's limited success, the court awarded the plaintiff total costs of $23,000 on a partial indemnity basis.

The moving parties, who were added as defendants to a slip and fall action nearly six years after the incident, sought leave to appeal a decision dismissing their motion for summary judgment.

They argued the claim was statute-barred and the plaintiff failed to exercise due diligence in discovering their identity.

The Divisional Court dismissed the motion for leave to appeal, finding no error in principle in the motions judge's decision to leave the limitation period issue for trial, and noting that granting leave would cause unnecessary delay and piecemeal litigation.

The applicants sought an order under the oppression remedy provisions of the OBCA to force the sale of the respondents' shares in a jointly owned corporation, alleging an irreconcilable relationship breakdown and corporate deadlock.

The applicants also sought a winding up of related corporations.

The court found that the applicant, who was the sole director and officer, continued to operate the business successfully and had manufactured the alleged deadlock to circumvent a contractual moratorium on a shotgun buy-sell provision.

The application was dismissed as the court found no oppressive conduct and no justification for a just and equitable winding up.

The applicant, the former husband of the deceased, brought an application for directions under Rule 75.06 seeking to be appointed estate trustee and to obtain exclusive possession of the deceased's house to prepare it for sale.

The applicant was not a beneficiary under the will but had several outstanding lawsuits against the deceased and her estate.

The court dismissed the application, finding that the applicant lacked standing because a creditor with unliquidated claims does not have a 'financial interest' in the estate within the meaning of Rule 75.06.

The respondent father brought a motion to change a final consent order to expand his access, reduce child support, and terminate spousal support early because the applicant mother had repartnered.

The court found that the spousal support was primarily compensatory in nature and that the mother's cohabitation did not constitute a material change in circumstances.

The court also dismissed the father's request for increased access to reach the 40% threshold for shared custody child support, finding no material change in the needs or circumstances of the children.

The motion to change was dismissed.

The plaintiff, a 14-year employee, was terminated for failing to provide a doctor's note in a timely manner while on sick leave.

She brought a motion for summary judgment for wrongful dismissal.

The court found that while the plaintiff breached a reasonable company policy, summary dismissal was a disproportionate response.

The court determined the appropriate notice period was 10 months, but reduced it to 6 months because the plaintiff failed to mitigate her damages by not seeking alternative employment for 15 months.

The court dismissed the claim for punitive and moral damages, finding the employer did not act maliciously.

The plaintiff was awarded $20,904.

The plaintiff brought a motion for leave to amend his Statement of Claim to add a claim for contribution and indemnity under the Environmental Protection Act, following an Environmental Review Tribunal decision reducing a municipal cleanup order against him.

The defendants opposed the motion, arguing the proposed amendments were statute-barred and untenable.

The court granted leave to amend, finding that the legal issues regarding limitation periods and statutory interpretation were novel and not plainly and obviously untenable, and that the defendants would not suffer non-compensable prejudice.