SCJ 2012

In a certiorari application arising from criminal proceedings, the moving party challenged a trial-level order made under s. 486.3(4) of the Criminal Code and also challenged a disclosure ruling concerning a complainant video statement.

The court held that although a prior order by another judge was not binding in the circumstances, the key procedural defect was the trial judge’s failure to address the request to cross-examine the affiant on the Crown affidavit when the application was renewed.

That denial of cross-examination on affidavit evidence constituted a denial of natural justice reviewable on certiorari.

The challenged s. 486.3(4) order was quashed and remitted to the trial judge for rehearing.

The disclosure branch was dismissed as a matter potentially raising appeal issues rather than certiorari grounds.

The court determined costs following a prior order declaring the responding party a vexatious litigant under section 140 of the Courts of Justice Act.

Applying Rule 57.01(1) and fairness principles, the court accepted most of the moving party's partial indemnity costs request, including motion, trial, and disbursement components.

The court reduced the pleadings and pre-production component from the amount sought, while finding the remaining claimed amounts fair and reasonable in light of the record and work required.

The responding party's objections were found to be without merit and not responsive to the costs issue.

The court fixed total costs at $29,951.49, inclusive of disbursements and applicable HST, payable within 30 days.

The appellant father appealed a child support order made at a case conference in the Ontario Court of Justice that imposed final child support based on imputed income.

The appellate court considered whether the case conference judge had jurisdiction under the Family Law Rules to make a final order where the responding party had notice only of a request for a temporary order.

While the father had failed to comply with disclosure orders and provided inconsistent financial information, the court held that the case conference judge exceeded jurisdiction by making a final order far beyond the relief requested in the conference brief.

The proper order was limited to the temporary child support amount sought in the brief.

The final order was therefore set aside and replaced with a temporary order pending further proceedings.

The Crown sought to admit a videotaped statement made by the accused to police.

The statement had previously been ruled inadmissible in a separate proceeding before a different judge.

The court held that issue estoppel did not apply to voluntariness rulings and permitted the voir dire.

The accused argued the statement was involuntary due to a missing minute of video recording, an unrecorded interaction in the holding cells, and a failure to transport him directly to the remand centre after bail court.

The court found the police explanations reasonable, no evidence of improper conduct, and concluded the statement was voluntary and admissible.

The accused brought a Charter application alleging a breach of s. 8 arising from the execution of a search warrant that authorized the search of a black Acura but resulted in the search of a Honda bearing the same licence plate.

The accused sought leave to cross‑examine the affiant on several issues relating to the confidential informant and the basis for the warrant.

Applying the principles from R. v. Garofoli, the court held that cross‑examination should be permitted only where necessary to enable full answer and defence and where a basis exists to believe it may discredit a precondition for the authorization.

Leave was granted only on the issue of reasonable and probable grounds relating to the discrepancy between the vehicle described in the warrant and the vehicle searched.

Cross‑examination on the informant’s past performance, the identity linkage between the accused and a nickname, and alleged drug trafficking information was refused due to lack of necessity and risk to informant privilege.

A trucking company sued for unpaid transport invoices relating to produce shipments from U.S. airports to Ontario.

The produce wholesaler counterclaimed alleging that a delayed pickup of a pepper shipment caused spoilage and significant loss in value.

The court found the carrier liable for breach of contract because it failed to pick up the perishable shipment within the agreed timeframe, making the resulting spoilage foreseeable.

However, the wholesaler failed to take reasonable steps to mitigate its losses after the delay became apparent.

Liability for the losses was therefore apportioned equally between the parties, resulting in a net judgment in favour of the wholesaler after set‑off against the unpaid invoices.

The plaintiff contractor sued the defendant homeowner for unpaid extras on a kitchen renovation project.

The defendant counter-claimed for damages, alleging defective and incomplete work.

The court found that the defendant prematurely and without good cause terminated the contract.

The court accepted the plaintiff's evidence that the extras were authorized and necessary due to structural defects discovered during the renovation.

The plaintiff was awarded $5,090 for the extras, and the defendant's counter-claim was dismissed.

Purchasers of a residential property brought a Small Claims Court action alleging misrepresentation after discovering water seepage and moisture problems in the basement shortly after closing.

The vendors had provided oral assurances and a Property Condition Disclosure Statement indicating that no such issues existed.

The court held that the vendors were liable for negligent misrepresentation because a prior basement seepage issue had not been disclosed and the assurances reasonably induced the purchasers to complete the transaction despite concerns raised in a home inspection report.

Applying the principle that damages should fund corrective measures rather than betterment, the court limited recovery to the cost of repairing the weeping tile system and associated grading.

Judgment was awarded for the cost of these corrective measures.

Following a trial where the self-represented plaintiff was awarded $3,000, the court assessed the plaintiff's claim for costs.

The court allowed disbursements for filing fees and postal charges, and awarded a reduced amount for travel costs due to a lack of context provided by the plaintiff.

The court denied the plaintiff's claim for lawyer's fees, noting it was not raised at trial and was not strictly a disbursement.

Costs were fixed at $219.05.

The plaintiffs sought damages arising from alleged negligent installation of a residential furnace that repeatedly malfunctioned over several years.

The plaintiffs claimed reimbursement for costs incurred replacing electrical components between 2003 and 2010.

The court held the plaintiffs failed to prove, on a balance of probabilities, that the defendants’ installation caused the continuing furnace failures, noting the absence of expert evidence linking the installation to the malfunction.

The court also found the claim was likely barred under the Limitations Act, 2002 because the plaintiffs knew or ought to have known of the alleged issue years earlier.

The action was dismissed.

The plaintiff alleged constructive dismissal after refusing his employer’s request to issue a pay cheque without statutory source deductions.

The court found that the request violated statutory tax deduction obligations and that the plaintiff’s refusal led to constructive dismissal.

The employer was also found to have unlawfully withheld final wages and vacation pay, justifying punitive damages.

Claims of workplace religious harassment were dismissed due to insufficient evidence that the comments constituted vexatious or unwelcome conduct under the Human Rights Code.

A defendant’s claim for repayment of a $10,000 loan was allowed, with the court finding it to be an interest‑free loan repayable by instalments.

The accused was charged with two counts of sexual assault against a cognitively delayed adult complainant.

The incidents allegedly occurred in the bathroom and kitchen of a relative's apartment.

The accused denied the allegations, claiming the complainant initiated contact and he only pinched her bottom.

Applying the W.(D.) framework, the court rejected the accused's evidence as not credible and found the testimony of the complainant and an eyewitness reliable despite minor inconsistencies.

The accused was found guilty on both counts.

The defendant brought a motion for leave to withdraw an admission contained in its statement of defence acknowledging that a taxi driver involved in a collision was its employee.

The court applied the three‑part test governing withdrawal of admissions in pleadings: whether the amendment raises a triable issue, whether the admission was inadvertent, and whether the withdrawal would cause non‑compensable prejudice.

The court accepted affidavit evidence explaining that the admission resulted from inadvertence and that discovery evidence suggested the driver was actually the owner and operator of the vehicle.

The court also found no real prejudice to the plaintiff, rejecting arguments that potential loss of access to higher insurance limits constituted prejudice.

Leave to withdraw the admission was granted and costs were reserved.

Applicants in two related constitutional applications sought procedural relief to separate challenges to two different federal statutes enacted within the same budget legislation: the Expenditure Restraint Act and the Public Sector Equitable Compensation Act.

They requested severance of the combined challenges or, alternatively, leave to amend the applications to pursue only the wage restraint challenge while preserving the right to challenge the pay equity legislation later.

The court held that although the Rules of Civil Procedure contain no explicit severance mechanism for applications, the requested relief could be granted through amendment principles under Rule 26.01 where no non-compensable prejudice arises.

The court granted leave to amend the notices of application to retain only the Expenditure Restraint Act challenge and permitted the applicants to commence a future application concerning the Public Sector Equitable Compensation Act.

No costs were awarded, and the parties were encouraged to seek case management.

The defendant, Frank Jonkman and Sons Limited, brought a motion to withdraw deemed admissions resulting from its failure to respond to a Request to Admit served nearly two years prior.

At the time of service, the defendant was unrepresented and insolvent.

The defendant subsequently obtained insurance coverage and new counsel, who discovered the unresponded Request to Admit shortly before trial.

The court applied the three-part test under Rule 51.05 and granted leave to withdraw the admissions, finding that the change raised a triable issue, there was a reasonable explanation for the change in position, and the plaintiff would not suffer non-compensable prejudice.

The defendant was also granted leave to amend its pleadings.

Following earlier reasons in which the respondents were awarded costs on a partial indemnity basis, the court determined the quantum of costs payable by the applicant.

Separate bills of costs were submitted by counsel for two respondents, each including disbursements and HST.

Although one respondent’s counsel worked with junior lawyers and produced a slightly higher bill, the court found the respondents had shared responsibility for responding to the application approximately equally.

Using one bill as a baseline, the court awarded identical costs to both respondents.

The plaintiff brought a motion seeking to have the defendants found in contempt of court for failing to comply with several court orders related to examinations in aid of execution and other litigation obligations.

The defendants argued that their failures were attributable to the conduct and advice of their former solicitor and a disbarred lawyer assisting him.

The court held that while parties are generally responsible for their own conduct in litigation, the circumstances raised sufficient doubt regarding the defendants’ culpable intent.

Given the high onus required to establish contempt of court, the court declined to make a contempt finding.

The court further ordered that there would be no costs of the contempt motion.

The applicants brought a motion for civil contempt under Rule 60.11 of the Rules of Civil Procedure against a corporate respondent for repeated non-compliance with prior court orders requiring production of materials and accounting under the Condominium Act, 1998.

Applying the three-part contempt test from Bell ExpressVu Ltd. Partnership v. Torroni, the court found the orders were clear and unequivocal, the respondent’s failure to comply was deliberate and wilful, and contempt was proven beyond a reasonable doubt.

The court rejected the respondent’s request for an adjournment and held that the record demonstrated persistent disregard of court orders.

The respondent corporation was found in contempt, and the directing mind of the corporation was ordered to attend a further contempt hearing to determine enforcement if the contempt was not purged.

Costs were awarded to the applicants on a substantial indemnity basis.

The applicants sought enforcement of a prior court order requiring production of condominium corporation financial records and pursued contempt proceedings against a corporate director for non‑compliance.

The director delivered additional banking and financial documents and advised that audited financial statements were being prepared by external auditors.

The court found that the respondent had not yet fully purged the contempt order because the disclosure provided did not include all required financial records.

However, the court accepted that steps toward compliance were underway and relieved the director from further personal attendance requirements.

The contempt motion was adjourned to allow completion of the audit and disclosure of supporting documentation, and costs were awarded to the applicants for the appearance.

In contempt proceedings arising from a failure to comply with a prior court order requiring production of financial and accounting records, the court addressed a request for an adjournment of a sentencing hearing for contempt.

The corporate director of the respondent had failed to appear at a previous hearing, resulting in the issuance of a bench warrant.

After appearing with newly retained counsel, the director sought additional time to assemble the required financial documentation and to address missing records.

Although the court expressed concern about repeated adjournments and minimal compliance with prior orders, it concluded that granting a short adjournment would better facilitate production of the required documents and potential purging of the contempt.

The bench warrant was rescinded, the matter adjourned on a peremptory basis, and substantial indemnity costs were awarded to the applicants.