SCJ 2012

The defendant brought a motion to stay an Ontario action arising from a motor vehicle accident that occurred in Alberta, arguing the Ontario court lacked jurisdiction.

The plaintiffs attempted to establish a presumptive connecting factor based on the fact that the defendant’s insurer was an Ontario corporation and might ultimately be liable under the Insurance Act.

Applying the framework recently articulated in Club Resorts Ltd. v. Van Breda, the court held that none of the recognized presumptive connecting factors were present.

The court rejected the proposed new factor relating to the insurer’s domicile, finding it inconsistent with the principles of certainty, order, and predictability in private international law.

The Ontario court therefore lacked jurisdiction and the action was stayed.

The Aboriginal offender pleaded guilty to sexual assault and robbery after breaking into a 62-year-old victim's home.

The sentencing judge addressed systemic issues regarding the availability of Gladue reports in Windsor, Ontario, noting the offender had to be transferred to Sarnia to obtain one.

Applying Gladue principles and considering the offender's severe background of trauma and systemic disadvantage, alongside the extreme gravity of the home invasion and sexual violence, the court imposed a sentence of 9 years in the penitentiary.

The Crown's request to delay parole eligibility under s. 743.6(1) was denied.

Following a family law mobility trial where the applicant father was successful in having the children reside primarily with him, he sought costs of $77,664.53 based on an offer to settle.

The respondent mother, who had limited financial means, argued for no costs or a nominal amount.

The court declined to apply the strict costs consequences of the offer to settle, noting the difficult nature of mobility cases and the reasonableness of both parties' positions.

Considering the respondent's modest means and the costs she would incur to exercise access, the court fixed costs at $15,000 payable to the applicant.

A non-share corporation operating a mosque and community centre experienced an internal governance dispute among its members, leading to litigation.

After reviewing affidavit evidence and a monitor’s report, the court highlighted corporate governance errors committed by both sides under Canadian corporate law.

The court encouraged the parties to resolve the dispute without judicial determination.

The parties entered into Minutes of Settlement providing for an interim executive committee and future elections.

The court approved the settlement, the monitor’s report and activities, and the monitor’s fees.

The plaintiffs in a proposed class action regarding alleged child abuse at a residential school brought a motion in writing to discontinue the action against two individual defendants, Betty Farnsworth and Mary Haig.

The remaining defendants consented to the discontinuance.

The court granted the motion, finding that the discontinuance would simplify the proceedings and would not prejudice the proposed class members, as no discrete claims were advanced against the two individuals.

The court also dispensed with the requirement to give notice of the discontinuance to the proposed class members.

The parties, who separated in 1991 after a traditional marriage, both brought motions to change a 1993 spousal support order.

The moving party sought to terminate his $500 monthly spousal support obligation, citing his retirement, health issues, and the responding party's improved financial position.

The responding party brought a cross-motion seeking an increase in support due to inflation and ongoing economic disadvantage.

The court dismissed both motions, finding that neither party had met the threshold burden of establishing a material change in circumstances that would justify varying the existing order.

Following a prior finding of contempt of court in a family law proceeding, the court conducted a sanctions hearing to determine the appropriate penalty.

The respondent had failed to comply with prior court orders, including disclosure obligations and payment of previously ordered costs.

The court imposed a short custodial sentence for contempt and ordered payment of outstanding and new costs.

The court further directed that the respondent’s pleadings would be automatically struck if costs were not paid within the specified time and ordered completion of remaining disclosure.

In an application concerning hydro-electric property tax exemptions under section 3(1), paragraph 18 of the Assessment Act, the court determined that most disputed station components qualified as machinery and equipment used for producing electricity for sale to the general public.

The court rejected a narrow interpretation requiring direct transformation use and held all power produced at the stations met the sale-to-general-public requirement.

The court also held the applicant could not rely on paragraph 17 as an alternative exemption route.

Due conflicting expert evidence, the scope of exempt foundations required further expert process and a trial on that issue.

Following a seven‑day trial concerning a Hague Convention application for the return of a child to a foreign jurisdiction, the court determined the issue of costs.

The applicant father had sought the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction, while the respondent mother successfully relied on the Article 13(b) exception to resist return.

The successful party sought full recovery costs of over $83,000, arguing complete success and reliance on discretionary factors under Rule 24(11) of the Family Law Rules.

The court rejected the argument that costs could only be awarded under Article 26 of the Hague Convention and held that the ordinary operation of Rule 24 applied.

While some reductions were warranted, the court found the bill of costs generally reasonable and awarded the successful party $64,000 in all‑inclusive costs.

The plaintiff brought a motion for summary judgment against the defendants for compensatory and punitive damages arising from an investment scheme.

The plaintiff alleged breach of contract for failure to refund his investment, as well as fraud and conspiracy to defraud.

The court granted partial summary judgment against the corporate defendant for $90,000, finding a binding agreement to refund the 2007 investment.

However, the court dismissed the motion for summary judgment on the fraud and conspiracy claims, concluding that a full appreciation of the conflicting evidence and credibility issues required a trial.

The applicant sought to quash a committal for trial on an allegation of attempting to obstruct justice arising from advice given to a prospective witness before a preliminary inquiry.

Applying the review standard on a motion to quash committal, the court held the Crown evidence lacked sufficient contextual completeness to support a reasonably available inference of specific intent to obstruct justice.

The court distinguished authorities where surrounding words and circumstances supplied interpretive reliability, and found the impugned fragmentary utterance equally consistent with lawful advice to use a proper name rather than a nickname.

Because the record did not provide evidence from which a properly instructed jury could reasonably convict, the committal order could not stand.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration over the legal limit.

He argued that the trial judge erred in concluding that breath samples were taken “as soon as practicable”, in admitting a certificate of a qualified breath technician without providing adequate reasons, and in declining to exclude breathalyzer evidence after finding a breach of s. 8 of the Charter.

The appeal court held that the trial judge properly assessed the total time between arrest and testing and reasonably concluded the police acted within a prompt and reasonable timeframe.

The court also found no reversible error in admitting the certificate and determined that the trial judge appropriately applied the s. 24(2) Charter analysis in admitting the breath test evidence despite the breach.

The conviction was upheld.

Employees sought certification of a class action alleging that a bank misclassified analysts, investment advisors, and associate investment advisors as ineligible for overtime pay contrary to the Canada Labour Code and the Employment Standards Act, 2000.

The proposed class relied on job titles and levels to establish commonality, arguing that eligibility for overtime could be determined collectively or through statistical sampling.

The court held that determining whether an employee exercised managerial or supervisory functions required a fact‑specific assessment of the actual duties performed by each employee.

Evidence showed wide variation in responsibilities even among employees sharing identical job titles, defeating the proposed common issues and rendering statistical sampling inappropriate for determining liability.

As the central issues of overtime eligibility and breach required individualized inquiries, a class proceeding was not a preferable procedure and the certification motion was dismissed.

At a contested status hearing for two related actions, the defendants sought an order dismissing the plaintiffs' actions for delay.

The actions, commenced in 2003 and 2004, involved complex corporate restructuring and real estate disputes.

The defendants argued prejudice due to the delay and the deaths of a plaintiff and a key witness.

The court found that the plaintiffs had not intended to abandon the actions and provided a reasonable explanation for the delay, which included numerous interlocutory proceedings.

The court concluded that dismissing the actions would be a draconian step and instead ordered the actions to continue subject to a strict timetable and a guillotine order.

The plaintiff subcontractor registered a claim for lien for concrete foundation work.

The defendants argued the lien was registered out of time.

The plaintiff claimed it attended the site on February 19, 2009, to cut ties and chip concrete, which would bring the April 6, 2009 registration within the 45-day limit.

The court found the February work was to rectify minor deficiencies and amounted to an attempt to bootstrap the claim for lien.

The court held the lien expired because the time for preservation began running when the substantive work was completed in November 2008.

The appellant appealed a master's order requiring payment of outstanding costs as a condition of avoiding the striking of defences.

The appellant argued that a settlement payment by a co-defendant satisfied joint and several costs awards previously ordered against multiple defendants.

The court held the appeal was properly characterized as relating to costs and therefore required leave under the Courts of Justice Act.

Leave was refused, and the court agreed with the master's reasoning that settlement funds paid before a later costs award could not satisfy that subsequent order.

The appeal was dismissed.

The accused was arrested for an armed carjacking after police intercepted the stolen vehicle.

During the arrest, an officer grounded the accused, causing a minor cut to his chin, to secure a replica handgun tucked in his waistband.

The accused subsequently gave a videotaped statement to police.

On a confessional voir dire, the defence argued the statement was involuntary due to oppressive police conduct, specifically the use of force during the arrest.

The court found the officer's use of force was reasonable and necessary given the dynamic and high-risk situation of an armed suspect.

The court concluded the accused's will was not overborne, and the statement was voluntary and admissible.

The defendant municipality brought a motion for summary judgment seeking dismissal of a procurement dispute arising from a waste haulage contract tender.

The plaintiff carrier alleged its bid was wrongly rejected as non‑compliant despite literal compliance with the tender terms and sought damages for lost profits.

The court held the motion record was inadequate and contained unresolved evidentiary conflicts regarding the interpretation of tender documents, the purpose of amendments to the request for quotation, and the municipality’s handling of clarification opportunities.

The court found that the summary judgment process would not provide a fair and just determination of the dispute.

A full trial was required in the interests of justice.

A bankrupt applied for discharge from bankruptcy where the majority of his unsecured debt consisted of personal income tax debt exceeding $200,000 and representing more than 75% of his liabilities.

The Crown opposed discharge, arguing that the bankrupt’s right to reside rent‑free in a home held in a discretionary trust should be treated as income when calculating surplus income under the Bankruptcy and Insolvency Act.

The court held that a right of residence is not “revenue” or income for purposes of surplus income under s. 68 because it merely reduces an expense rather than generating income.

However, the court considered the benefit as a relevant factor when exercising discretion under s. 172.1 governing discharge of tax debtors.

A conditional discharge was ordered requiring monthly payments to creditors.

The applicant sought to vary an ex parte restraint order under the Controlled Drugs and Substances Act to allow the sale of a property that had been used as a commercial marijuana grow operation.

The applicant wanted to use the sale proceeds to pay out a first mortgage held by a credit union before remitting the balance to the Attorney General.

The Attorney General opposed the payout, arguing that the mortgagee's innocence had not been established and should be determined at a forfeiture hearing.

The court dismissed the application, finding that it would be premature to allow the payout before a full hearing under s. 20 of the CDSA.