SCJ 2012

An estate trustee applied to remove a corporate co-trustee from administering an estate that held valuable Muskoka cottage property subject to life interests.

The applicant argued the corporate trustee obstructed efforts to obtain a reverse mortgage to fund repairs and maintenance after the estate’s capital maintenance fund was exhausted.

The court applied the established test for removal of trustees, emphasizing that a testator’s choice of trustee should not be lightly interfered with and that removal requires clear necessity and must promote the welfare of beneficiaries.

The proposed borrowing arrangement was vague and risked depleting the trust asset while primarily benefiting the life tenant at the expense of residual beneficiaries.

The court concluded that the applicant failed to demonstrate that removal of the corporate trustee was necessary or that it was the only viable course.

Following a successful motion for declaratory and injunctive relief concerning a mutual driveway right-of-way, the successful party sought costs on a substantial indemnity basis.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and the effect of settlement offers under Rule 49.10.

The evidence showed repeated reasonable settlement attempts by the successful party and an inflexible litigation position by the opposing party, which contributed to the need for the motion.

The court found that the result obtained was at least as favourable as the formal offer to settle and awarded partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

Costs were fixed at $20,336.52 plus HST.

The parties, who were never married, separated and entered into a separation agreement.

The applicant transferred his interest in their jointly owned home to the respondent.

The agreement stated that the payment of any equalization would not be determined until a future date.

The applicant later claimed an interest in the home based on the agreement, constructive trust, and resulting trust.

The court dismissed the property claims, finding the agreement provision was an unenforceable 'agreement to agree' and the trust claims were precluded by the agreement and the facts.

The court also determined retroactive and ongoing child support obligations based on changes in the children's living arrangements, including a shared custody arrangement for one child.

The defendant appealed a master’s order refusing to compel answers to discovery refusals and production of additional financial documents in a fatal motor vehicle accident action involving dependency claims under the Family Law Act.

The appeal challenged the master’s refusal to require the surviving spouse to answer questions about post‑accident income and dividends and to produce corporate and financial documents sought by the defendant’s expert.

The court held that the master applied the correct relevance test and did not commit a palpable and overriding error in determining that questions relating to post‑accident investment income were irrelevant to the dependency claim in the circumstances of a single‑income household.

The court also upheld the master’s discretionary decision to deny several production requests as premature or unnecessary, particularly where the materials had not been pursued during discovery or involved non‑parties.

The appeal was dismissed and the discovery rulings were upheld.

Following an earlier ruling granting the applicant a partial advance of funds significantly lower than requested, the court addressed the issue of costs.

The applicant sought 70 percent of her bill of costs totaling $4,854.77.

The court noted that the applicant achieved only limited success, obtaining one-fifth of the amount originally requested.

Applying that degree of success to the partial indemnity costs, the court fixed costs at $680 payable by the respondent forthwith.

The accused, a tow truck operator, was charged with criminal negligence causing death after parking his flatbed tow truck partially in the fast lane of Highway 403 to assist a stranded motorist.

A driver travelling in the fast lane struck the rear of the tow truck and was killed instantly.

The court assessed whether the accused's actions constituted a marked and substantial departure from the standard of care of a reasonable tow truck operator.

After considering expert testimony on towing industry standards and human factors, the court found that the accused's actions, while risky, fell within accepted industry practices and did not amount to a wanton or reckless disregard for the lives and safety of others.

The accused was found not guilty.

The defendant architect brought a motion for summary judgment to dismiss a negligence action arising from alleged design defects in a residential building.

The plaintiff argued the defect was not discoverable until a precast concrete unit fell from the building in 2008 and that the claim was therefore timely under the discoverability principle.

The court held that the architectural services agreement contained a contractual limitation clause providing that the architect’s liability ceased six years after substantial performance of the work or another specified triggering event, whichever occurred first.

Substantial performance occurred in 1994 and the action commenced in 2009, well beyond the contractually agreed limitation period.

The court found the clause clear, enforceable, and properly brought to the plaintiff’s attention, and granted summary judgment dismissing the action.

Following a summary judgment motion, the court had previously awarded substantial indemnity costs to the defendant.

After the costs endorsement was released, defence counsel disclosed that the defendant’s legal fees had been paid by his employer rather than personally.

The plaintiff argued that this new information warranted reconsideration of the costs award or reduction to partial indemnity.

The court held that the source of payment for the defendant’s legal expenses did not materially alter the reasoning underlying the substantial indemnity award, which was primarily based on the plaintiff’s litigation conduct.

The prior costs award therefore remained unchanged.

The applicant, charged with importing heroin, applied to exclude intercepted telephone communications on the basis that the wiretap authorizations breached his s. 8 Charter rights.

The first authorization targeted an airport employee suspected of drug smuggling, based largely on a confidential informant's tip.

The court found the first authorization valid, applying the Debot factors.

The second authorization named the applicant as a 'known person' after his calls with the primary target were intercepted.

Relying on the recent Court of Appeal decision in Mahal, the court held that the standard for intercepting a known person's communications is whether it 'may assist the investigation', which was met here.

The application to exclude the evidence was dismissed.

The moving party sought leave to appeal an interim family court order requiring the parties’ child to return to Essex County pending a custody determination, and also sought a stay of that order.

The court considered the test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure and the governing principles for interim mobility disputes, including the best interests of the child and the maximum contact principle.

The court held that the applicant failed to establish conflicting authority or good reason to doubt the correctness of the order.

The motion judge’s decision was fact-driven and aimed at preserving meaningful relationships with both parents until a custody assessment could be completed.

Leave to appeal and the request for a stay were dismissed.

An appeal from a master's order compelling a non-party witness to answer questions and produce documents on an examination under Rule 39.03 of the Rules of Civil Procedure.

The examination related to efforts to enforce a judgment against a dissolved corporation by seeking relief against an alleged corporate successor.

The appellant argued the trial judge was functus and that the questions were irrelevant because the court lacked jurisdiction to vary the judgment.

The court held that the requested questions were relevant to a pending motion seeking enforcement and potential relief under ss. 242 and 243 of the Ontario Business Corporations Act concerning property of dissolved corporations and shareholder liability.

The master's decision was entitled to deference and disclosed no error of law.

The accused was charged with sexual assault under s. 271 of the Criminal Code arising from an alleged non‑consensual sexual encounter in the accused’s residence.

The complainant testified that the accused forced intercourse after preventing her from leaving, while the accused maintained the encounter was consensual.

Evidence revealed inconsistencies in the complainant’s prior statements and testimony, particularly regarding the presence of a third party in the small residence during the alleged assault.

Applying the credibility framework in R. v. W.(D.), the court rejected the accused’s evidence but found that the totality of the evidence, including the third‑party witness testimony, left a reasonable doubt.

The accused was acquitted.

The plaintiffs brought a motion to compel the municipal defendant to answer undertakings and produce documents relating to expert evidence arising from environmental contamination litigation.

The court considered Rules 31.06 and 53.03 of the Rules of Civil Procedure governing disclosure of expert findings, opinions, and materials reviewed by experts.

Because the defendant intended to call its environmental expert at trial, the court held that the expert’s memoranda, email communications, and materials reviewed by the expert were producible to permit the opposing party to test the opinion evidence.

Although the defendant had undertaken not to call a valuation expert, a partial disclosure of a letter from that expert was ordered because it had been reviewed and used as instructions for the testifying expert.

The motion was granted with production orders and compliance deadlines.

The applicant wife brought a motion to strike the respondent husband's Answer in a family law proceeding.

The custody and access issues had already been resolved, leaving only financial issues.

The husband had repeatedly failed to provide required financial disclosure, breaching multiple consent orders and the Family Law Rules over a period of more than two years.

The court found the husband's breaches to be deliberate, flagrant, and prejudicial to the wife.

Concluding that this was an exceptional case where the husband's conduct prevented the case from being dealt with justly, the court granted the motion and struck the husband's Answer.

The accused were charged with assault and intimidation of a justice system participant following an altercation in a washroom.

The Crown alleged the assault was retaliation against an informant who was scheduled to testify against a Hells Angels associate.

The court found the primary accused guilty of assault but acquitted him of intimidation, finding reasonable doubt that his specific intent was to impede the informant's duties rather than simply acting out of anger.

The co-accused was acquitted of all charges as the Crown failed to prove he knew of the assault or intended to aid it.

The respondent father, a resident of France, brought a motion to strike the applicant mother's claim for child support in Ontario, arguing that an existing French court order already addressed the issue.

The court applied the Muscutt factors and found a real and substantial connection to Ontario, as the children habitually reside there.

Distinguishing previous case law, the court held that because custody and access were also being legitimately litigated in Ontario, it was appropriate to assume jurisdiction over child support to avoid a multiplicity of proceedings.

The motion to strike was dismissed.

The plaintiff's hotel and business were damaged by fire.

The plaintiff claimed $825,296.32 for destroyed contents under its insurance policy with the defendant insurer.

The insurer denied the claim, arguing the policy did not include contents coverage, and brought a motion for partial summary judgment to dismiss the contents claim.

The court applied the rules of construction for insurance contracts and found the policy clearly and unambiguously did not provide contents coverage, as no specific limit or premium was shown for contents on the declarations page.

The insurer's motion for partial summary judgment was granted.

The accused was charged with sexually assaulting his step-daughter while she was sleeping by the fireplace.

The accused denied the allegations, claiming he was merely stoking the fire and had not touched her.

The court applied the W.(D.) framework to assess credibility, finding the complainant's evidence credible and the accused's explanations untruthful and inconsistent with the testimony of other witnesses.

The accused was found guilty of sexual assault.

The plaintiffs sought enforcement of personal guarantees executed by the defendant in relation to loans advanced to two corporations.

The defendant argued the action was statute-barred, that he did not understand he was personally guaranteeing the debt due to language difficulties, that there was no consideration for the promissory note, and that the lender’s corporate name change rendered the guarantee unenforceable.

The court rejected the non est factum defence, finding the defendant understood the nature of the documents and knowingly signed both as corporate officer and personal guarantor.

The court further held that the action was commenced within the limitation period, that consideration existed through an extension of time for repayment, and that a corporate name change did not affect enforceability of the note or guarantee.

Judgment was granted for the principal amounts owed under both guarantees with interest, subject to a small credit relating to residual corporate funds.

In an uncontested trial, the applicant mother sought sole custody, child support, and an equalization payment.

The respondent father did not appear.

The court granted the applicant sole custody with supervised access for the respondent.

Based on evidence of the respondent's unreported cash earnings, the court imputed his income at $45,000 and ordered child support of $406 per month.

The court also ordered an equalization payment of $475 and costs of $1,000 to the applicant.