SCJ 2012

Institutional investors sought an adjournment of a motion to sanction a restructuring plan under the Companies’ Creditors Arrangement Act, arguing that provisions in the proposed plan concerning settlements and releases for third party defendants could improperly affect their ability to pursue claims in related securities class actions.

The court reviewed the plan and concluded that approval of any specific settlement, including a proposed auditor settlement, was not before the court on the sanction motion and would require further court orders and satisfaction of multiple conditions precedent.

The court held that any potential impact on investors’ claims could be addressed in future proceedings where the specific settlements and releases would be considered.

As the objections were premature and the debtor faced time and funding constraints, the request for an adjournment was denied.

Within Companies’ Creditors Arrangement Act proceedings, a dispute arose regarding the proper form of an order issued following earlier reasons approving certain settlements.

Counsel for certain defendants argued that the issued order should have included a “comeback” clause allowing parties to return to court for directions regarding ongoing case management.

The supervising judge concluded that the order had been signed on the mistaken assumption that counsel had agreed on the form of order.

Given the anticipated ongoing disputes over discovery and production in the underlying action, the court held that continuing judicial supervision was necessary in the CCAA context.

The order was therefore amended to include a comeback clause permitting affected parties to seek directions from the court.

Following the dismissal of a bank’s summary judgment motion in an action alleging breach of trust and negligence, the plaintiffs and a co-defendant sought costs.

The court considered Rule 49 settlement offers but found they did not promote compromise, as they effectively required the moving party to abandon its motion.

Although the bank succeeded on the legal issue that no trust existed, a negligence issue remained requiring trial.

Given the bank’s unsuccessful motion and the limited value of the underlying claim, the court found the motion unnecessary and awarded substantial indemnity costs.

Costs of $15,000 were awarded to the plaintiffs and $15,000 to the co-defendant.

The parties brought competing family law motions concerning custody, access, child support, and related financial issues.

The court held that most issues raised by the parties could not be fairly determined on conflicting affidavit evidence and ordered that the outstanding matters proceed to trial pursuant to Rule 14(7) of the Family Law Rules.

The court found a material change in circumstances affecting the child’s best interests due to the involvement and evidence of the Office of the Children’s Lawyer and expanded the father’s weekday access to include an overnight visit.

Restrictions on corporal punishment were removed and the alcohol condition was modified to prohibit consumption during parenting time.

Income was not imputed to either party for support purposes and most support issues were deferred to trial.

The mother brought a motion for interim sole custody, supervised access for the father, and an order for a parenting assessment.

The father cross-moved for unsupervised access and shared custody.

The court found a history of domestic violence and high conflict, with the father demonstrating an inability to control his anger and verbal abuse in front of the children.

The court granted the mother interim sole custody, ordered a parenting assessment by Dr. Butkowsky, and granted the father unsupervised access on weekdays but continued supervised access on Saturdays for one month while he enrolls in an anger management course.

The affidavit of the father's sister was struck for containing hearsay.

A high‑conflict family law trial addressing custody, access, and child support following separation.

The applicant sought sole custody while the respondent sought custody with equal access.

The court found evidence of controlling and abusive conduct by the respondent and determined that granting him final decision‑making authority would not be in the children’s best interests under s. 24 of the Children’s Law Reform Act.

Sole custody was granted to the applicant with structured and generous access to the respondent, together with a detailed holiday schedule.

The court also found the respondent to be voluntarily under‑employed and ordered ongoing child support, arrears payment, and annual financial disclosure.

The applicant, the stepmother of a man who had been missing for 16 years, applied for a declaration of death under the Declarations of Death Act, 2001.

The declaration was sought to distribute the missing man's share of his late father's intestate estate to his two half-sisters, the respondents.

The court reviewed the statutory requirement that an applicant make reasonable inquiries to locate the missing person.

Finding that the private investigator's search was rudimentary and lacked basic steps such as public notification or following up on property records, the court dismissed the application without prejudice, allowing it to be renewed once further reasonable steps were taken.

The appellant appealed a summary conviction for operating a motor vehicle with a blood alcohol level over 80 mg, arguing the police lacked reasonable and probable grounds to arrest him and demand breath samples, contrary to s. 8 of the Charter.

The arrest followed observations of excessive speeding, a dangerous ramp maneuver, the odour of alcohol, bloodshot eyes, and an admission of recent drinking.

The court held that the trial judge correctly concluded that the officer had objectively reasonable and probable grounds based on the totality of the circumstances.

Even if a Charter breach had occurred, the breath sample evidence would have been admissible under s. 24(2) applying the Grant framework.

The appeal was dismissed.

The applicant, charged with importing cocaine, sought release on bail pending trial.

He lacked a suitable surety and proposed to act as his own surety through the Bail Program, while living with and working for a friend.

The court dismissed the application, finding the applicant failed to demonstrate on a balance of probabilities that his release was justified on the primary grounds, as he lacked meaningful roots in the community and the proposed employment and residence were not reliably confirmed.

The dismissal was without prejudice to returning with the friend to confirm the offers.

Following a seven‑day trial involving enforcement of a vendor‑take‑back mortgage, promissory note, and guarantees relating to the sale of a gasoline station, the successful lender sought costs on a full indemnity basis relying on contractual provisions and alternatively substantial indemnity costs after an offer to settle.

The defendants conceded that costs should be awarded but disputed the scale and quantum.

The court held that although the plaintiff was largely successful, the defendants achieved limited success on an issue that reduced the principal judgment by $80,000.

The court further held that the plaintiff’s offer to settle was an “escalating offer” that did not trigger Rule 49.10 cost consequences.

Partial indemnity costs were awarded and fixed globally in an amount reflecting the mixed success of the parties.

The applicant mother sought an order permitting her to relocate with the parties' child from Halton Region to London, Ontario, to live with her fiancé.

The respondent father opposed the move, arguing it would negatively impact his relationship with the child.

The court found that a material change in circumstances had occurred and that the move was in the child's best interests, as it would provide financial stability, greater educational support, and more quality time with the mother.

The mother was permitted to relocate with the child, subject to a specified access schedule for the father.

The Workplace Safety and Insurance Board (WSIB) brought a motion for summary judgment to dismiss the defendant's counterclaim.

The WSIB had previously obtained summary judgment on its claim for overpayment of benefits.

The defendant's counterclaim alleged that the WSIB mistakenly or unfairly dealt with medical evidence.

The court granted the WSIB's motion, finding that under sections 26 and 118 of the Workplace Safety and Insurance Act, 1997, the WSIB and its appeal tribunals have exclusive jurisdiction over the subject matter of the counterclaim.

The motion was granted without costs due to the WSIB's bifurcated approach to summary judgment.

The defendants moved to stay the plaintiffs' action for wrongful dismissal and oppression under the CBCA, arguing the dispute was subject to a broad arbitration clause in a unanimous shareholders agreement.

The plaintiffs argued the arbitration clause did not cover employment matters and that forcing arbitration would be oppressive.

The court applied the Mantini test, found the arbitration clause was broad enough to cover the dispute, and held that proceeding to arbitration would not be oppressive as all remedies sought could be pursued there.

The motion to stay the action was granted.

The defendants brought motions for summary judgment to dismiss the plaintiffs' action arising from a shotgun buy-sell offer in a partnership dispute.

The plaintiffs claimed the offer was invalid, and alleged breach of contract, breach of fiduciary duty, and oppression.

The court found that the shotgun buy-sell offer was valid and complied with the partnership agreement.

The court also dismissed the claims for breach of fiduciary duty and oppression, finding that the defendants were entitled to exercise their contractual rights.

However, the court directed a trial on three specific breach of contract issues relating to closing arrangements and the calculation of net earnings.

The accused pleaded guilty during a jury trial to careless use of a firearm, being an occupant of a motor vehicle knowing a firearm was present, and carrying a concealed weapon.

The court considered whether the firearm was loaded and found the Crown had not proven beyond a reasonable doubt that the rounds in the magazine were live ammunition.

The offender was a licensed gun owner with no criminal record who carried the handgun for protection while purchasing marijuana and transported it contrary to legal requirements.

Applying the principles in ss. 718–718.2 and considering conditional sentencing jurisprudence, including R. v. Proulx, the court concluded the risk of re‑offending was very low and that a conditional sentence would satisfy denunciation, deterrence, and rehabilitation.

The accused received an 18‑month conditional sentence with strict house arrest conditions, community service, and a 10‑year discretionary weapons prohibition.

The wife brought a motion to find her husband in contempt for failing to comply with several court orders, including orders to pay child and spousal support, return a boat, reinstate medical/dental insurance, and file an updated financial statement.

The court found the husband in contempt for failing to return the boat and for failing to pay $7,626.00 in support arrears.

The court rejected the husband's evidence regarding cash payments and alleged forged receipts, directing the wife to provide the evidence to the police for investigation.

The court ordered the husband to pay the arrears, secure medical/dental coverage, and set a schedule for further disclosure and a settlement conference.

The accused was charged with sexual assault, sexual interference, and invitation to sexual touching involving a child under 16.

The court assessed conflicting testimony between the accused and the complainant, a child who testified via audio link, and examined alleged inconsistencies raised by the defence.

The judge rejected the accused’s testimony as unreliable and found the complainant’s evidence credible and compelling despite a minor inconsistency.

The court held that the complainant’s testimony established the essential elements of the offences beyond a reasonable doubt.

Convictions were entered on all three counts.

Following the dismissal of an appeal from a Registrar’s decision granting the bankrupt a conditional discharge, the court determined the issue of costs.

The bankrupt sought substantial indemnity costs, arguing that the creditor had advanced unproven allegations of fraud in affidavit material.

The court declined to award substantial indemnity costs, finding the allegations related to issues directed to be determined by the Registrar and not resolved in the appeal.

Applying Rule 57.01 and the principle that costs follow the event, the court awarded partial indemnity costs but reduced the amount to reflect work relating to issues outside the appeal.

Costs were fixed at $6,000 inclusive of HST, subject to deduction of a prior $1,500 costs award in favour of the creditor.

The defendant auditor brought motions to compel answers to written discovery questions, to compel production of the plaintiff's expert files, and to increase the quantum of security for costs.

The court dismissed the motion to compel discovery answers, finding the requests for summaries of evidence and lists of documents to be relied upon at trial were overly broad and disproportionate.

The court ordered reciprocal production of prior expert report drafts but otherwise upheld litigation privilege over the experts' files.

The court granted the motion to increase security for costs, adding $577,995 to the previous order due to an extended trial estimate and the plaintiff's new litigation financing arrangement.

The plaintiffs brought a motion to set aside a registrar's order dismissing their action for delay.

The action, which involved a long-standing neighbour dispute, was dismissed after the plaintiffs failed to set it down for trial within the prescribed time limits.

The court applied the Reid factors and found that the plaintiffs had adequately explained most of the delay, the failure to set the action down was due to inadvertence, the motion was brought promptly, and the defendant suffered no significant prejudice.

The court set aside the dismissal order and granted a short extension to set the action down for trial.