SCJ 2012

The plaintiff brought a motion for leave to amend his statement of claim and to continue a stay of enforcement of a summary judgment obtained by the defendants in a related mortgage action.

The proposed amendments included allegations of forged documents by a former employee of the defendants in connection with investment transactions.

The court granted leave to amend, holding that limitation issues could be pleaded by the defendants and that the allegations were not clearly irrelevant or barred by res judicata.

However, applying Rule 20.08 of the Rules of Civil Procedure, the court declined to continue a full stay of the prior judgment, finding only a tenuous connection between the investment claim and the mortgage debt, uncertainty about the merits and damages of the plaintiff’s claim, and potential prejudice to the defendants.

The stay was partially lifted, requiring payment of $400,000 toward the judgment.

Following a five‑day hearing on a motion to change child support, the court determined the appropriate costs award.

The responding party to the motion had unsuccessfully sought a retroactive reduction of child support after selling a dental practice and relocating abroad, and income had been imputed based on prior earnings.

The successful party sought substantial costs including partial and full indemnity rates.

Applying Rule 24 of the Family Law Rules and considering success, offers to settle, the parties’ conduct, and the complexity of the issues, the court found the successful party was entitled to costs but reduced the amount claimed.

The court fixed costs at a fair and reasonable figure rather than the full amount incurred.

The offender was convicted after jury trial of importing 3.532 kilograms of cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act.

The court considered the applicable sentencing range for multi‑kilogram cocaine importation, noting appellate authorities establishing a typical range of six to eight years for couriers importing large quantities for personal gain.

Aggravating factors included the substantial quantity of cocaine, motivation for financial gain, limited remorse, and a prior drug-related conviction abroad.

Mitigating factors included a difficult upbringing and the limited role of the offender as a courier.

Emphasizing denunciation and general deterrence, the court imposed an eight-year sentence with enhanced credit for pre‑trial custody.

The plaintiffs brought a motion to amend their amended Statement of Claim to increase damages and extend the time period over which the defendants allegedly removed and converted sand from the plaintiffs’ property.

The defendant contractor opposed the amendment, arguing that claims relating to sand removal prior to 2007 were statute‑barred under the Limitations Act, 2002.

The court held that whether the claims were discoverable earlier was a factual issue unsuitable for determination on a motion.

Because the limitation issue was disputed and the amendments did not introduce a new tort, the court held that Rule 26.01 required the amendment to be permitted absent non-compensable prejudice.

The motion to amend was therefore granted, with procedural directions for further discoveries and expert reports.

The plaintiffs purchased a property for development but later discovered erosion issues.

They sought legal advice from the moving defendants on whether they could terminate the transaction.

The moving defendants advised them to close the transaction and sue the real estate agents later.

The plaintiffs followed this advice, suffered a loss on resale, and sued multiple parties, including the moving defendants for professional negligence.

The moving defendants brought a motion for summary judgment.

The court dismissed the motion, finding that factual conflicts regarding the advice given and the absence of affidavit evidence from a second lawyer present at the meeting created genuine issues requiring a trial.

Following dismissal of the applicants’ motion concerning the legal validity of a long‑standing agreement registered on title to residential property, the court addressed the issue of costs.

The respondents, who were wholly successful on the motion, sought over $32,000 in costs on a partial indemnity basis.

The court determined that partial indemnity costs should be calculated at 60% of counsel’s hourly rate and accepted the reasonableness of time spent by a senior real estate lawyer assisting with the matter.

However, a $2,000 disbursement for legal research was disallowed for lack of supporting documentation under Rule 57.01(5) and Form 57A of the Rules of Civil Procedure.

The court ultimately fixed costs at $22,809.82 payable forthwith.

Following a jury verdict finding the accused guilty of sexual assault and extortion arising from the same incident, the court considered the application of the Kienapple principle prohibiting multiple convictions for the same delict.

The court analyzed whether there was both a factual nexus and a legal nexus between the offences.

The threats used to induce sexual activity and the sexual acts themselves occurred in the same location, in immediate succession, and formed part of a single course of conduct.

Because the elements of the particularized extortion offence subsumed the elements of sexual assault, the offences shared the same underlying cause.

The court held that the Kienapple rule applied and stayed the sexual assault conviction while entering conviction for extortion.

The accused was charged with multiple firearms offences after police executing a search warrant located a loaded prohibited firearm with ammunition hidden between a mattress and boxspring in his bedroom.

The accused argued the firearm belonged to another individual and sought exclusion of the evidence based on a s. 8 Charter violation.

The court had previously ruled the firearm and ammunition admissible.

After assessing the credibility of the accused and other witnesses, the court rejected the defence explanation and found the accused knowingly possessed the firearm in his bedroom while subject to a lifetime firearms prohibition and a probation order.

The Crown proved the offences beyond a reasonable doubt.

A costs endorsement arising from a motion under Rule 7.08 seeking court approval of a minor’s settlement relating to statutory accident benefits following a catastrophic motor vehicle injury.

The settlement totalled $1,275,000, including a structured annuity and funds used to purchase a residence for the injured minor.

The Office of the Public Guardian and Trustee raised concerns regarding the reasonableness of counsel’s fees and recommended a reduction.

After reviewing supplementary evidence and considering the factors under Rule 57.01 of the Rules of Civil Procedure, the court concluded that fees representing 17.14 percent of the settlement were fair and reasonable given the complexity and duration of the litigation.

Following a family law equalization judgment requiring the applicant spouse to pay the respondent spouse $89,502.95, the court determined the appropriate costs award.

The respondent sought a combination of partial indemnity and full recovery costs based on offers to settle made before trial.

The court held the offers did not comply with Rule 18 of the Family Law Rules and therefore could not trigger full recovery cost consequences, though the applicant’s failure to make any offer and rejection of the respondent’s offers were adverse factors.

After considering proportionality and the factors in Rules 18 and 24, the court fixed partial indemnity costs in favour of the respondent.

The plaintiffs brought a motion under Rule 5.04(2) of the Rules of Civil Procedure to add a railway company as a defendant and to amend their statement of claim following a train–motor vehicle collision.

The proposed defendant opposed the motion, arguing that the claim was statute‑barred under the Limitations Act, 2002 and that the plaintiffs failed to exercise due diligence in identifying it earlier.

The court held that the discoverability principle applied because the plaintiffs reasonably believed the train operator was responsible for the crossing until examinations for discovery revealed that another entity controlled the tracks and signals.

The court found the plaintiffs had acted with reasonable diligence and that the proposed defendant suffered no actual prejudice given its early knowledge of the accident.

The motion to add the party and amend the claim was granted, with leave to the added defendant to plead a limitation defence.

Prospective adoptive parents applied to adopt a minor relative who had entered Canada as a visitor and later remained without valid immigration status.

The court considered whether the child qualified as a resident of Ontario under s. 146(5) of the Child and Family Services Act and whether the proposed adoption constituted an impermissible “accommodation adoption” intended primarily to circumvent immigration laws.

Applying prior case law on residency and bona fide adoptions, the court found that the child had developed a sufficient and genuine connection to Ontario through years of residence, schooling, and integration into the applicants’ household.

The court further determined that the proposed adoption was motivated by the creation of a genuine parent-child relationship rather than immigration advantage.

The adoption was held to be in the child’s best interests and was granted.

Beneficiaries of an estate brought a motion seeking repayment of a solicitor’s retainer paid from estate funds, denial of compensation to the estate trustee, and costs.

The court found the legal services rendered to the estate trustee were reasonable and declined to order repayment of the retainer.

The request to deny trustee compensation was dismissed as premature because the estate trustee had not yet presented accounts for approval.

However, the court held that the trustee’s delay, lack of transparency, and inaccurate disclosure forced the beneficiaries to bring the application and awarded them costs personally against the trustee.

Third parties brought motions for summary judgment seeking dismissal of a third party claim arising from alleged groundwater contamination caused by a leaking pesticide storage tank.

The moving parties argued they had no responsibility for maintenance of the tank or liability for any leak.

The responding defendants argued that liability among the supplier, distributor, and related agents depended on unresolved contractual relationships and factual findings.

The court held that discovery had not yet occurred and that the evidentiary record was incomplete.

Given the need to assess contractual arrangements and credibility, the court found the motion premature and concluded the issues required a full trial.

Following a successful damages claim arising from a mortgage dispute, the plaintiff sought recovery of legal costs on a substantial indemnity basis pursuant to the mortgage contract.

Although the defendants obtained a temporary stay of execution related to the conduct of the plaintiff’s former lawyer, the court found the plaintiff remained substantially successful overall.

The contractual provision supporting substantial indemnity costs was applied.

The court awarded costs slightly below the amount sought.

The plaintiffs brought a motion to amend their statement of claim to change the location of an alleged slip and fall and to add a new corporate defendant as the owner or landlord of the premises.

The court held that the plaintiffs failed to provide evidence of reasonable diligence to discover the identity of the proper defendant within the limitation period under the Limitations Act, 2002.

The court also rejected reliance on the doctrine of special circumstances, noting binding appellate authority that the doctrine cannot extend a limitation period.

The proposed amendment could not be justified as a correction of a misnomer under s. 21(2) because the amendment would alter the underlying material facts and the proposed defendant could not reasonably have known it was the intended defendant.

The motion to amend and add the party was dismissed and the derivative Family Law Act claims were also barred.

In a medical malpractice action involving minor plaintiffs, the moving party sought to set aside an administrative dismissal for delay in order to file a litigation guardian affidavit and involve the Office of the Public Guardian and Trustee.

The court applied the factors governing relief from administrative dismissal and found the delay adequately explained, the motion brought promptly, and no prejudice to the responding party.

However, the court held that a settlement agreement dismissing the action without costs was enforceable against the adult plaintiff personally because clear authority had been given to counsel to settle.

The settlement was not enforceable against the minor plaintiffs because no litigation guardian had properly been appointed and the required affidavit under Rule 7.02 had never been filed.

The action of the adult plaintiff was dismissed without costs and without prejudice to the rights of the minor plaintiffs.

The appellant appealed interlocutory orders of a master staying his action for failure to pay a prior costs award and granting the respondent the right to seek dismissal if the costs remained unpaid.

The master had found the appellant deliberately refused to comply with a $10,000 costs order despite having the means to pay, and imposed a stay with additional costs after extensive motion proceedings.

On appeal, the court applied the deferential standard for reviewing a master’s interlocutory order and considered the sanctions available under Rule 60.12 of the Rules of Civil Procedure.

The court held there was no error in law, no misapprehension of evidence, and no improper exercise of discretion.

The appeal was dismissed and additional costs were awarded against the appellant.

A construction contractor sued a homeowner for unpaid amounts under a residential renovation contract and for authorized extras.

The homeowner counterclaimed for alleged deficiencies, completion costs, and other expenses.

The court reconstructed the terms of the contract based on quotes, oral agreements, and communications because no written contract existed.

It found the homeowner breached the contract by refusing to pay a reasonable portion of the progress payment and by denying the contractor access to complete the work and remedy minor deficiencies.

The court held that the contractor was entitled to the unpaid contract balance and payment for authorized extras, subject to deductions for reasonable completion costs.

Judgment was granted for the contractor and the counterclaim was dismissed.

The appellant brought a summary conviction appeal challenging convictions and fines imposed for two violations of s. 65(1) of the Health of Animals Act arising from transporting and unloading a cow in a condition causing undue suffering.

The appellant argued that the trial judge applied the wrong legal test for “undue suffering,” improperly relied on expert veterinary pathology evidence, and erred in failing to apply the Kienapple principle to stay one of the convictions.

The court held that the trial judge correctly applied the causation requirement clarified in Doyon v. Canada (Attorney General) and made supported findings that both the transportation and unloading independently caused undue suffering.

The court further held that the veterinary pathologist was properly permitted to give opinion evidence within her expertise and that the two offences were distinct and did not arise from the same transaction.

The appeal against both conviction and sentence was dismissed.