SCJ 2012

The applicant brought a motion to strike the respondent's Answer and Claim and to find him in contempt for his ongoing failure to comply with multiple court orders regarding financial disclosure and costs.

The respondent argued he had purged his contempt to the extent possible, citing health issues, lack of funds, and reliance on third parties.

The court found the respondent had not met his obligations and had provided inadequate excuses.

However, noting some recent progress and the respondent's claim that his health issues had resolved, the court adjourned the motion to strike and the contempt motion, giving the respondent one final opportunity to comply with a strict timetable for disclosure and payment of costs.

The Crown appealed a summary conviction acquittal on a charge of operating a motor vehicle with blood alcohol exceeding the legal limit.

The respondent argued the appeal was not properly constituted because the notice of appeal had not been served within the required time.

The court considered whether it had jurisdiction to hear the appeal where service of the notice of appeal occurred after the prescribed period and the Crown sought retroactive validation of the service.

Applying authorities governing extension of time and service requirements, the court held that service out of time could not be ratified nunc pro tunc and that proper service is a prerequisite to appellate jurisdiction.

As the Crown had not obtained an order extending time prior to service and failed to justify the delay under the applicable factors, the court lacked jurisdiction to hear the appeal.

The applicant brought two motions in a family law property dispute.

The first motion sought to consolidate the family proceeding with an existing civil application for partition and sale of jointly owned property, and to dispense with the respondent's signature for the sale of the property.

The court granted the consolidation, finding common questions of law and fact and the need to avoid a multiplicity of proceedings.

However, the court declined to dispense with the respondent's signature at this stage, adjourning that issue for further evidence from both parties.

Following motion proceedings in an appeal-related matter, the moving parties sought partial indemnity costs in the amount of $2,894.78 by written submissions.

The court noted that each procedural step in litigation attracts costs and that the propriety of such costs could be addressed on appeal without requiring the Court of Appeal to fix them directly.

Although the court observed that the requested amount appeared higher than expected and that the issue had become unnecessarily contentious, it acknowledged that time had been expended by counsel.

The court ultimately exercised its discretion to fix costs payable to the moving parties at a reduced amount.

The applicant brought a motion seeking interim child and spousal support and interim disbursements for a business valuation critique in a family law proceeding.

The primary issue was the respondent’s income for temporary support purposes, where the parties proposed significantly different income figures based on competing interpretations of corporate financial information.

The court accepted the respondent’s valuator’s income determination report prepared in conformity with Canadian Institute of Chartered Business Valuators standards and fixed the respondent’s income at $124,567 on an interim basis.

The court held that temporary support motions should avoid forensic accounting analysis where only one expert report is available.

Interim child support, mid-range spousal support, and partial interim disbursements to fund a critique report were ordered.

The plaintiff subcontractor brought a construction lien action against the defendant general contractor and owner for unpaid invoices and extras relating to structural steel work.

The defendant general contractor counterclaimed for delay, deficiencies, and back charges, arguing the plaintiff failed to adhere to the project schedule and change order procedures.

The court found that the parties never agreed to a formal written contract or the change order procedure, but proceeded on an agreed price and scope of work.

The court held the plaintiff completed its work within a reasonable time and was not responsible for the project delays, which were attributable to the general contractor.

The plaintiff's claim for the contract balance and proven extras was allowed, and the defendant's counterclaim was dismissed.

The defendant brought a summary judgment motion seeking dismissal of a personal injury action as statute‑barred under the two‑year limitation period in the Limitations Act, 2002.

The defendant argued the claim was discovered on the date of the motor vehicle accident.

The court considered the interaction between the discoverability rule and the threshold requirements under s. 267.5(5) of the Insurance Act, which require proof of permanent serious impairment or disfigurement before liability arises.

Relying on expert evidence indicating that permanence of the injuries could not reasonably be assessed shortly after the accident, the court held that discoverability of the claim depended on when the permanence of the injuries could be determined.

Given the limited evidentiary record and absence of defence expert evidence, the court found that the plaintiff had a reasonable chance of proving discoverability at trial.

The summary judgment motion was therefore dismissed.

Following a motion for summary judgment where the defendant achieved divided success, the court determined the issue of costs.

The moving party succeeded in obtaining partial summary judgment regarding alleged vehicle defects but failed to dismiss the vicarious liability claim.

Given the divided success, the court exercised its discretion to award no costs to either party.

In a pre-trial motion during a murder prosecution, the Crown sought to introduce intercepted private communications obtained under a Part VI authorization.

The defence argued the intercepts were prejudicial, lacked probative value, and included privileged solicitor-client communications.

The court held that most of the intercepted calls were admissible as relevant to issues including motive, animus, identity of the perpetrator, and consciousness of guilt.

The court found solicitor-client privilege had been waived where the accused voluntarily disclosed legal advice to third parties.

Some intercepts relating to propensity to violence were deferred pending whether the accused placed his character in issue or raised a third-party suspect defence.

The plaintiff bank brought a motion for summary judgment against the defendant guarantor for $145,000 based on a 2002 personal guarantee of a corporate loan.

The defendant argued that a subsequent 2005 guarantee for $150,000, which had been satisfied by the sale of a mortgaged property, was meant to replace the 2002 guarantee.

The court rejected this argument, noting the clear language in the guarantee stating it was in addition to and not in substitution for any other guarantee.

Finding no genuine issue for trial, the court granted summary judgment in favour of the bank.

During a s. 8 Charter voir dire in a firearms prosecution, the Crown sought to qualify a forensic document chemist as an expert in ink dating using the solvent loss ratio method to analyze a police officer’s note allegedly documenting information from a confidential informant.

The defence opposed the admission of the proposed expert evidence.

Applying the framework for novel scientific evidence, the court considered whether the technique had been tested, peer reviewed, subject to standards or known error rates, and generally accepted.

The court found the methodology lacked peer review, established standards, demonstrated testing, and general acceptance in the relevant forensic community.

The proposed evidence was therefore inadmissible and, in any event, had little probative value because the analysis could not determine the age of the ink.

In an ongoing oppression application, the applicants moved under s. 249(4) of the OBCA for an order requiring the respondent corporation to pay their interim legal fees.

The respondent moved for documentary production.

The court dismissed the applicants' motion, finding they failed to provide sufficient independent evidence of their financial difficulty or the quantum of costs sought.

The court refused to hear the respondent's motion because he had failed to comply with a previous court order regarding the funding of independent counsel.

The court also ordered the parties to prepare a trial preparation plan.

Following a prior costs endorsement, self-represented respondents sought leave to file a reply and requested reconsideration of the court’s costs determination.

The underlying application sought a declaration regarding the validity of several leases and had been dismissed, resulting in success for the respondents.

The self-represented respondents argued they should receive compensation for time spent preparing and attending the proceeding.

Applying Rule 57.04(4) of the Rules of Civil Procedure and the principles in Fong v. Chan, the court held that costs for self-represented litigants are only appropriate where the work performed is equivalent to that ordinarily done by counsel.

The court found the respondents’ activities did not meet that threshold and declined to alter the previous costs award.

Following a marriage of approximately 13.5 years, the respondent spouse sought spousal support after the parties resolved custody, access, child support, and equalization.

The respondent argued entitlement on compensatory and non‑compensatory bases, claiming he sacrificed career advancement and assumed caregiving responsibilities while the applicant advanced her career and earned significantly more income.

The court applied s. 15.2(4) and (6) of the Divorce Act and considered leading authorities on spousal support entitlement.

The court found no evidence that the respondent suffered economic disadvantage due to the marriage or its breakdown and concluded he remained economically self‑sufficient.

The respondent’s claim for spousal support was therefore dismissed.

The accused was charged with trafficking in Diazepam contrary to s. 5(1) of the Controlled Drugs and Substances Act.

The Crown relied on the testimony of a single witness who alleged that the accused gave her pills and instructed her to crush and consume them.

The court found significant concerns with the witness’s credibility and reliability, including admitted intoxication, vague memory, and implausible aspects of the narrative.

In the absence of corroborating evidence such as additional witnesses or a certificate of analysis, the court held that the Crown failed to prove the essential elements of trafficking beyond a reasonable doubt.

The accused was acquitted.

The former trustees of a family trust applied to pass their accounts.

The beneficiaries objected to several expenses, including fees paid to a former trustee acting as an agent, a second share valuation report, and certain legal fees.

The court held that despite an exculpatory clause in the trust document, the trustees breached their substratum duties by retaining the conflicted former trustee as an agent and commissioning an unnecessary valuation report.

The court disallowed the agent's fees, the valuation report costs, and a portion of the legal fees, ordering the trustees to repay the disallowed amounts to the trust.

The plaintiff brought a motion seeking removal of a law firm acting for an insurer as statutory third party in a tort action arising from a motor vehicle accident.

The insurer also provided accident benefits coverage to the plaintiff and retained the same firm to act in both the accident benefits claim and the defence of the tort action.

The firm used documents and information obtained from the plaintiff in the accident benefits claim to defend the tort action against the insured driver.

The court held that this dual representation created a clear conflict of interest, particularly where no effective information barrier existed between the two matters.

The firm’s conduct contravened principles governing conflicts of interest and the protection of confidential information between insurer and insured relationships.

The firm was removed as solicitors of record for the insurer in the tort action.

Following a family law motion, the court was asked to determine entitlement to costs.

After reviewing the claims, the order granted, the parties’ submissions, and the respondent’s offer to settle, the court found that success on the motion was divided between the parties.

Applying the general principles governing costs in family proceedings, the court concluded that neither party achieved sufficient success to justify a costs award.

Each party was therefore ordered to bear their own costs.

Following a family law motion concerning child support, the court determined costs.

The moving party sought retroactive child support and income imputation against the responding party.

The court found mixed factual success but held that the moving party was ultimately substantially successful in securing ongoing child support without reduction for disability benefits paid for the child.

Applying the success principle and noting neither party acted unreasonably and the issues were not complex, the court awarded partial costs to the moving party.

The accused applied for judicial interim release pending an extradition hearing to the United States on charges of conspiracy to traffic marijuana.

The Crown opposed release, citing the reverse onus under section 515(6)(d) of the Criminal Code and the accused's history of failing to comply with court orders.

The court found that the accused's proposed release plan, which relied heavily on electronic monitoring, was insufficient to mitigate the significant flight risk and the risk of continuing criminal activity.

The application for judicial interim release was dismissed and the accused was ordered detained.