SCJ 2012

The plaintiff, a judgment creditor of the estate of John Sr., brought two actions alleging that the transfer of a farm property and certain trademarks by the estate to family members and their companies were fraudulent conveyances intended to defeat its claims.

The plaintiff relied on the Fraudulent Conveyances Act and the Assignments and Preferences Act, pointing to several 'badges of fraud'.

The court dismissed the actions, finding no fraudulent intent.

The court accepted that the farm property transfer and a related mortgage were legitimate transactions to secure and repay loans made by the son's companies for farm improvements, and that the family genuinely believed the Reliable lawsuit lacked merit at the time of the transfers.

The defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike portions of an amended statement of claim against a corporate officer personally.

The plaintiff sought damages related to her termination of employment and pleaded tort claims for intentional or negligent infliction of nervous shock and punitive damages against the officer.

The court held it was plain and obvious that the tort claims had no reasonable prospect of success because allowing them would circumvent contractual exclusion and entire agreement clauses contained in the employment agreement.

Applying principles from Supreme Court of Canada jurisprudence concerning limitation of liability clauses and privity, the court found the exclusion clause extended to the officer acting within the scope of employment.

The claims against the officer were struck in their entirety without leave to amend.

A self‑represented spouse sought spousal support and a proprietary interest in a home following the breakdown of a marriage.

The property was legally owned by the respondent brother‑in‑law, though the spouse and her husband had contributed labour and funds while living there under the belief that the husband would eventually acquire it.

The court rejected claims that the husband owned the property or that the brother held title in trust, but found the owner had been unjustly enriched by the applicant’s contributions.

Applying the principles from Kerr v. Baranow, the court awarded a monetary remedy reflecting half of the mortgage principal reduction and a share of the property’s value increase.

Limited retroactive spousal support was also ordered against the husband.

In advance of a new trial ordered by the Court of Appeal on issues of unjust enrichment and constructive trust relating to corporate shares, the applicant sought updated financial disclosure and interim disbursements and legal expenses under Rule 24(12) of the Family Law Rules.

The court permitted expanded financial disclosure to allow the applicant to investigate a claim to post‑separation increases in share value.

However, the request that the respondent fund updated valuation reports and legal expenses was denied.

The court held that the evidence did not demonstrate a need to level the playing field, that the respondent lacked superior financial resources, and that the applicant failed to show the updated valuation was necessary or that the claim for post‑separation increase in value was meritorious.

Following a multi‑action civil trial arising from failed investment schemes, the plaintiffs sought costs on a substantial indemnity basis after obtaining findings of fraud and fraudulent conveyance against the principal defendant.

The defendants had consented to judgment for the principal investment amounts but contested interest and liability for fraud.

The court had found that the principal defendant committed fraud and that he and his spouse fraudulently conveyed their home to defeat creditors.

Considering the sanctionable conduct of the defendants and the principles governing elevated costs, the court awarded substantial indemnity costs to the plaintiffs.

The court ordered costs of $92,267.75 and apportioned partial responsibility to one defendant for the fraudulent conveyance portion of the litigation.

The offenders were convicted of multiple counts of mortgage fraud involving 11 properties and 27 mortgages over a 7-year period.

They used stolen identities, forged documents, and false powers of attorney to obtain mortgage financing, resulting in over $1 million in losses to financial institutions and the CMHC.

The court rejected a conditional sentence, emphasizing denunciation and general deterrence for large-scale frauds.

Each offender was sentenced to 4 years in a penitentiary.

The court also ordered fines in lieu of forfeiture totaling $495,535.04 and a joint and several restitution order in the same amount payable to the CMHC.

The plaintiff suffered catastrophic injuries in a head-on motor vehicle collision on an icy municipal road.

The plaintiff sued the municipalities responsible for winter road maintenance.

The court found that the municipal snow plough operator created the icy conditions by applying a sand/salt mixture that caused a re-freeze, and then failed to return within a reasonable time to treat the resulting ice.

The court held that the Minimum Maintenance Standards did not shield the municipalities because the standards do not cover situations where the municipality creates the hazard.

The municipalities were found fully liable for the agreed damages of $1,912,176.96, with no contributory negligence on the part of the plaintiff.

Sentencing following convictions for sexually assaulting and interfering with a child over several years, and for possession of child pornography.

The court treated denunciation and deterrence as the primary sentencing objectives under the Criminal Code, emphasized the offender's abuse of trust, repeated vaginal penetration, grooming conduct, threats, and the profound psychological harm to the child and family, and rejected the offender's otherwise pro-social background as an exceptional circumstance.

Applying the appellate framework for adult sexual predators of children and the totality principle, the court imposed 5 years for the sexual offences plus 1 consecutive year for possession of child pornography, for a global sentence of 6 years' imprisonment.

Following a family law trial addressing financial issues, the successful party sought costs after the court invited written submissions concerning the effect of settlement offers.

The court considered the impact of an informal offer to settle that did not strictly comply with Rule 18 of the Family Law Rules but remained open and was significantly exceeded by the judgment obtained at trial.

In determining costs under Rule 24, the court emphasized the complexity and importance of the issues, the reasonableness of the successful party’s conduct, and the opposing party’s failure to provide proper financial disclosure and inappropriate behaviour at trial.

The court held that the unsuccessful party’s conduct prolonged the proceedings and justified an enhanced level of costs.

Costs were awarded on a partial indemnity basis pre‑trial and enhanced costs for the trial itself.

The Crown brought an application to admit similar fact evidence in a jury trial involving multiple sexual offence charges against a foster father relating to three complainants who had lived in the accused’s foster home.

The defence argued that the evidence of one complainant was so unreliable as to be incapable of belief and therefore should not be considered as similar fact evidence.

The court reviewed the governing principles from the Supreme Court of Canada regarding the admissibility of similar fact evidence and assessed the probative value of the evidence in relation to its prejudicial effect.

Given the pattern of conduct alleged within the foster home context and the similarities in the surrounding circumstances, the court concluded that the evidence was reasonably capable of belief and possessed significant probative value.

The probative value outweighed the potential prejudice and the evidence was admitted with appropriate jury instructions.

The defendants brought a motion for summary judgment seeking dismissal of a negligence and breach of fiduciary duty claim arising from unclaimed bank draft proceeds that had been transferred to the Bank of Canada pursuant to the Bank Act after remaining unclaimed for ten years.

The plaintiff had recovered the proceeds from the Bank of Canada but claimed damages for lost investment opportunities and expenses incurred in proving entitlement to the funds.

The court held that s. 438(2) of the Bank Act releases a bank from all liability “in respect of” an instrument once the unclaimed proceeds are transferred to the Bank of Canada.

The plaintiff’s claims for costs incurred in recovering the funds and alleged lost interest arose from the bank draft itself and therefore fell within the statutory release.

Summary judgment was granted dismissing the action.

The appellant appealed a conviction for failing or refusing to comply with a roadside breath demand under s. 254(5) of the Criminal Code.

The accused argued the trial judge erred by providing insufficient reasons, misapprehending evidence, and reversing the burden of proof regarding his explanation that illness and cold conditions prevented him from providing a sample.

The appeal court held the trial judge’s reasons were adequate and demonstrated proper credibility analysis.

The court further found no material misapprehension of evidence and concluded the trial judge properly applied the burden of proof when assessing both the elements of the offence and the defence of reasonable excuse.

The conviction was upheld.

Family law trial arising after the parties' separation and the subsequent diagnosis of one child with a rare and serious brain tumour.

The court found joint custody unworkable because the parties could not communicate or cooperate, and awarded sole custody to the respondent with structured consultation obligations and conditional expansion of the applicant's access after he met with specified health professionals.

The court also determined past and ongoing special expenses under s. 7 of the Child Support Guidelines, allowing substantial medical, travel, parking, hotel, equipment, medication, mobility, and dental claims, deducting benefit funds and other acknowledged offsets, and ordering reimbursement of $8,377.54 plus $350 monthly going forward.

A divorce was granted.

An appeal from an Ontario Court of Justice decision granting summary judgment in a child protection proceeding and making two children Crown wards.

The appellants argued that the motions judge erred in law by failing to follow the statutory pathway under the Child and Family Services Act and by not properly considering a parental plan involving support from a grandparent.

The appeal judge reviewed the record and admitted fresh evidence concerning the parent’s continued substance abuse and instability.

The court found that the motions judge applied the correct legal test, considered less disruptive alternatives, and properly evaluated the proposed family support plan.

The appeal was dismissed and the Crown wardship disposition upheld.

The applicant sought a declaration that retention bonuses payable under an amended employment agreement constituted pensionable earnings under a multi-employer pension plan for purposes of calculating pension benefits.

The court considered the plan definition of “pensionable earnings,” which included wages, salary, and other amounts forming a regular and integral part of a member’s remuneration.

The applicant argued the bonuses were regular compensation tied to continued employment, while the plan administrator argued they were ad hoc payments replacing a severance-trigger provision.

The court held that although the payments occurred on fixed dates, they were not a regular and integral component of remuneration within the meaning of the plan.

The application was dismissed and the bonuses were found not to be pensionable earnings.

In a certified securities class action arising from a take‑over bid, the defendant law firm moved for summary judgment dismissing negligence and statutory misrepresentation claims.

The plaintiff alleged that a partner of the firm, who acted as counsel to the bidder and sat on its board, participated in preparing a take‑over circular containing misrepresentations contrary to s. 131 of the Securities Act.

The court held that there were genuine issues requiring a trial regarding whether the law firm owed a duty of care to shareholders who received and relied on the circular.

The court further held that the question of whether a law partnership could be vicariously liable under the Partnerships Act for a partner’s statutory liability as a corporate director should also proceed to trial.

Summary judgment was refused because the issues were novel and required a full factual record.

The plaintiffs moved to set aside an order that required the plaintiff to undergo two defence neuropsychological examinations.

The original order was made on the assumption that the defendants were adverse in interest.

It was subsequently discovered that the defendants had entered into a secret settlement agreement ending all adversity between them six months prior to the order.

The court found that the failure to disclose the agreement altered the landscape of the litigation.

The court varied the original order to permit only a single neuropsychological examination, finding that allowing two examinations by experts in the same field for non-adverse defendants was improper.

The court declined to exclude both reports entirely, finding that such a consequence would be disproportionate, but awarded the plaintiffs full indemnity costs.

The respondent father brought a motion seeking a finding of contempt against the applicant mother for denying court‑ordered access and failing to provide telephone access at the exact times specified in a prior order.

The mother argued that she followed a written directive from a child protection agency instructing her to suspend contact during an investigation and that deviations from telephone access occurred due to the child’s baseball schedule while alternate times were offered.

The court applied the civil contempt test requiring proof beyond a reasonable doubt of deliberate and wilful breach of a clear order.

The court dismissed the contempt allegations related to denial of access during the investigation and telephone access scheduling, finding the conduct was not deliberate.

However, the court found the mother technically in contempt for gradually restoring access after the investigation concluded rather than immediately complying with the order, but held she had purged the contempt by subsequently complying for several months.

The accused brought a s. 8 Charter application challenging the manner in which police executed a search warrant at his residence using a dynamic entry.

The accused argued that the failure to comply with the knock notice rule and the alleged ransacking of the home rendered the search unreasonable and required exclusion of cocaine discovered during the search.

The court reviewed the governing principles from recent jurisprudence concerning dynamic entries and exigent circumstances.

It held that police had reasonable grounds to conduct a dynamic entry based on risks of destruction of cocaine and the possible presence of firearms connected to the drug investigation.

The court further found insufficient evidence that the search itself was conducted in an unreasonably destructive or disorderly manner.

The application was dismissed.

Engineering consultants brought a motion under Rule 21.01(3)(d) of the Rules of Civil Procedure to dismiss a third party claim for contribution and indemnity arising from alleged design deficiencies in a warehouse concrete slab.

The moving parties argued that the contractor’s covenant in the main construction contract to obtain wrap‑up liability insurance barred any claim against them and that they could rely on a principled exception to the doctrine of privity to benefit from that covenant.

The court held it was not plain and obvious that the alleged losses would have been covered by the contemplated insurance or that the contract intended to extend such benefits to the engineers.

The pleadings disclosed a potential claim for contribution and indemnity relating to defective design and workmanship.

The motion to dismiss the third party claim as frivolous, vexatious, or an abuse of process was therefore dismissed.