SCJ 2012

A father sought access to his child while the mother held custody under an existing consent order.

The court assessed the request under s. 24 of the Children's Law Reform Act, focusing on the child’s best interests and the applicant’s ability to act as a parent, including consideration of past violence.

Evidence showed the applicant had an extensive criminal record involving violence, ongoing substance abuse issues, instability in housing and employment, and no contact with the child since birth.

The court also found credible evidence that the respondent remained fearful and that access could be used to continue intimidation.

The court concluded that access would not be in the child’s best interests and extended an existing restraining order to include the child.

The parties separated after a lengthy marriage.

The husband worked in an unregistered firewood business with his father and lived rent-free in a home titled to his parents.

The court found the husband's income was $100,000, accounting for unreported cash and personal benefits.

The court also found the husband had a 50% partnership interest in the business and a $100,000 beneficial interest in the home via constructive trust, both of which were included in his net family property.

The wife was awarded an equalization payment of $285,862.24, ongoing spousal support, and child support for their daughter's post-secondary education.

The applicant law society brought a motion to discharge a trusteeship previously ordered over the respondent lawyer’s practice under the Law Society Act.

The trusteeship had been established to secure client files, trust funds, and other records following the cessation of the respondent’s practice.

The respondent opposed the discharge, repeating arguments that the original trusteeship order lacked jurisdiction and that the destruction of inactive client files was unauthorized.

The court held that these issues had already been determined in prior proceedings and could only be challenged on appeal.

Finding that the trusteeship administration was complete and that no further services of a trustee were required, the court discharged the trusteeship and awarded costs and compensation to the applicant.

Following dismissal of a motion for summary judgment, the defendant sought costs of approximately $18,500 and argued the plaintiff acted unreasonably in bringing the motion.

The court considered Rules 20.06 and 57.01 of the Rules of Civil Procedure and the conduct of the parties regarding whether examinations for discovery should occur before the motion.

The plaintiff had proposed delaying the motion to conduct discoveries, consistent with guidance from appellate authority on summary judgment procedure, but the defendant opposed that approach.

The court held it was unreasonable for the defendant to resist discovery and then seek costs on the basis that the motion was improperly pursued.

Costs of the motion were therefore reserved to the trial judge.

The father brought a motion to vary a joint custody order that had been in place for over four years.

The court found a material change in circumstances due to the mother's erratic behaviour, chronic access issues, and the clear views and preferences of the 17-year-old and 11-year-old children to reside with their father.

The court granted the father sole custody and ordered the mother to pay child support arrears of $3,000 and ongoing child support of $511 per month.

Following a family law trial involving custody and a proposed relocation of a child, the court addressed the issue of costs.

Although both parties achieved partial success regarding custody, the respondent was unsuccessful in her request to relocate the child to Kingston.

Applying Rule 24 of the Family Law Rules and s. 131(1) of the Courts of Justice Act, the court determined that the applicant achieved greater success on the central issue and was entitled to costs.

The court also emphasized that costs must be awarded for specific stages of proceedings, referencing appellate authority.

Partial indemnity costs of $10,000 inclusive of HST and disbursements were awarded to the applicant.

The defendants brought a motion under r. 21.01(1)(a) of the Rules of Civil Procedure seeking to dismiss the action on the basis that it was statute-barred under the Limitations Act, 2002.

The plaintiff alleged breach of trust under the Construction Lien Act relating to unpaid amounts for labour, materials, and equipment provided on a construction project.

Although the plaintiff had commenced an earlier action for breach of contract concerning the same project, the court held that it was not plain and obvious from the pleadings that the limitation period had expired.

The court found that unresolved factual issues—such as the status of holdback funds and the timing of payments—could affect the limitation analysis.

Accordingly, the motion to strike the claim as statute-barred was dismissed.

An investor sued a discretionary portfolio manager and its representatives for breach of fiduciary duty, negligence, and breach of contract after the manager failed to promptly diversify an inherited, highly concentrated equity portfolio heavily weighted in Nortel, BCE, and TD shares.

The court found the manager knew diversification was the client's objective but failed to implement it or clearly communicate any staged diversification strategy or associated risks.

The court held that maintaining the concentrated portfolio for several months without proper disclosure or client agreement breached the manager’s duties of care and contractual obligations.

However, individual defendants without trading authority were not liable.

Damages were assessed based on a diversified portfolio consistent with the client’s Investment Policy Statement.

During a civil trial arising from the purchase of a hearing clinic business, the plaintiff sought leave mid‑trial to adduce additional evidence from its first witness concerning alleged improper professional practices and billing irregularities by the defendants.

The defendants ultimately consented to the admission of the evidence on the condition that the trial be briefly adjourned and that they receive substantial indemnity costs.

The court granted the adjournment, finding the plaintiff’s late introduction of extensive new documentary evidence and allegations unjustified and disruptive to the defence.

Although the plaintiff succeeded in obtaining leave to present the additional evidence, the court held that the lateness of the motion constituted litigation misconduct warranting costs on a substantial indemnity basis.

A case management judge considered whether he had jurisdiction to award costs for a refusals motion previously heard by another judge who later recused himself before determining costs.

The court held that, having been appointed case management judge to address all outstanding issues, it had jurisdiction to fix costs for the earlier motion.

The affected participant sought partial indemnity costs after successfully defending refusals made by its representatives during examinations.

The court rejected arguments that costs should be denied due to alleged impecuniosity, duplication of counsel, or alleged misrepresentation.

Costs were awarded on a partial indemnity basis with a reduction from the amount claimed.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action for a trading loss caused by a botched share transfer, arguing it was statute-barred.

The plaintiff argued the claim was not discovered until 2010 when new information was disclosed.

The court found the plaintiff knew enough material facts by April 2007 to commence a legal proceeding.

Even accounting for a nine-month tolling period during an Ombudsman investigation, the action commenced in November 2011 was well beyond the two-year limitation period.

The motion for summary judgment was granted and the action dismissed.

In a reference to determine the distribution of proceeds from a mortgage sale, the first mortgagee sought to claim increased fees and expenses arising from amending agreements entered into with the mortgagor after the second mortgagee registered its charge.

The court held that the second mortgagee was not bound by the amending agreements, as it had no notice of them at the time of registration.

The first mortgagee was only entitled to claim fees specifically set out in the registered mortgage and standard charge terms.

The increased fees were disallowed and legal fees were reduced.

A creditor applied for a bankruptcy order against the debtor under the Bankruptcy and Insolvency Act, alleging acts of bankruptcy including ceasing to meet liabilities generally as they became due and exhibiting a statement of assets and liabilities showing insolvency.

The court held that the applicant established a prima facie case that the debtor had ceased to meet liabilities generally, based on an unsatisfied judgment debt and unpaid tax arrears to the Canada Revenue Agency within the relevant six‑month period.

The debtor failed to provide independent evidence demonstrating the ability to meet liabilities or establishing a binding arrangement with the tax authority that would negate the inference of general non‑payment.

The court rejected the argument that the bankruptcy application was brought for an improper purpose.

The debtor was adjudged bankrupt and a trustee appointed.

The court determined costs arising from a motion relating to the sale of jointly owned property after one party filed a consumer proposal under the Bankruptcy and Insolvency Act.

The moving party had sought relief including lifting the statutory stay and authorizing the listing and sale of the property.

After a prior order lifted the stay and allowed the property to be listed for sale, the motion was ultimately dismissed as moot once the mortgagee took possession.

The court held that the motion became duplicative following the earlier order and should not have continued.

In the circumstances, the court declined to award costs to either party.

The applicant, Sino-Forest Corporation, sought an order sanctioning a plan of compromise and reorganization under the CCAA.

The plan was supported by the vast majority of creditors, including noteholders, auditors, and underwriters, but opposed by certain funds.

The court found that the statutory requirements were met, the creditors were properly classified, and the plan, including its third-party releases, was fair and reasonable.

The motion was granted and the plan was sanctioned.

The defendants appealed a master's order compelling answers and document production arising from an examination for discovery in a commercial dispute involving alleged misuse of confidential information and solicitation of a former employer’s client.

The defendants argued the production order was based on unsubstantiated pleadings, speculation regarding misuse of confidential information, and the discredited doctrine of inevitable disclosure.

The court held that relevance for discovery is determined by the pleadings and that the allegations in the statement of claim sufficiently grounded the requested discovery.

The master properly exercised discretion in balancing proportionality and determining that the information sought was relevant.

The appeal was dismissed.

Following a motion concerning whether a statement of claim should be amended to replace John Doe defendants with identified individuals, the court addressed the issue of costs.

The moving party sought partial indemnity costs of over $64,000 after achieving partial success in adding several individuals as defendants.

The responding parties argued that costs should be reduced because success was divided and because significant work occurred before the individuals formally opposed the motion.

The court rejected arguments that costs should be apportioned based on the number of individuals added and accepted that earlier work was intertwined with the amendment issue.

However, the court reduced the requested amount to account for delay and awarded partial indemnity costs.

During a criminal proceeding involving charges of possession of heroin for the purpose of trafficking and conspiracy, the accused requested interpretation in the Ibo language.

A voir dire was conducted to determine whether two proposed interpreters were competent to interpret for the accused during the upcoming jury trial.

The court considered the constitutional right to interpretation under s. 14 of the Canadian Charter of Rights and Freedoms and reviewed guidance from appellate authority concerning interpreter competency.

After examining the interpreters’ accreditation status, training, testing results, and courtroom experience, the court found that neither candidate met the required standard of competency for a Superior Court criminal trial.

The court held that the presumption of incompetence for non‑accredited interpreters had not been rebutted and directed that other qualified interpreters be sought.

The plaintiff estate moved to vary a prior order refusing leave to amend its statement of claim to add a breach of contract cause of action against a bank in relation to alleged misappropriation of funds from a structured settlement account.

The motion relied on purported “new evidence” arising from discovery indicating that no written banking agreement could be located.

The court held that the alleged evidence was not new and had been known to the plaintiff before the earlier motion was decided.

The proposed amendment continued to advance a new cause of action after the expiry of the limitation period and failed to meet the threshold for varying the prior order.

The motion was dismissed.

Two appeals were brought from the decision of a Claims Officer in insolvency proceedings under the Companies’ Creditors Arrangement Act concerning disputed landlord claims arising from leases originally entered in 1979.

One appellant challenged the Claims Officer’s jurisdiction to permit an amendment to a proof of claim and argued that the landlord failed to provide clear and timely notice of an intention to seek prospective damages following lease repudiation.

The other appellant argued that its claim was wrongly disallowed on the basis that notice of its intention to claim damages was untimely and prejudicial to the assignor tenant.

The court held that the Claims Officer had jurisdiction under the claims order to permit amendments and determine procedural matters and that the notice given by one landlord was sufficient.

The court also held that the second landlord’s delayed notice, after entering into a new lease in mitigation, prejudiced the assignor and justified disallowance of its claim.

Both appeals were dismissed.