SCJ 2012

Following a successful summary judgment motion dismissing the claims against a defendant vehicle owner, the court addressed the issue of costs.

The successful defendant sought partial indemnity costs for both the motion and the defence of the action and requested a Sanderson order requiring the co‑defendant insurer to pay those costs.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles governing Sanderson orders, the court found it reasonable that the defendants had been joined and that the insurer had actively attempted to shift liability onto the successful defendant.

The court held that fairness justified ordering the insurer to pay the successful defendant’s costs.

The court fixed partial indemnity costs at $24,292.47 for the summary judgment motion and $75,000 for the remainder of the action.

The municipal property assessment authority sought leave to appeal a decision of the Assessment Review Board that reclassified a property from the industrial tax category to the commercial category.

The Board had relied in part on a Wikipedia definition of “manufacturing” and introduced criteria relating to the scale of operations and whether manufacturing constituted the predominant activity of the business.

The court held that the addition of these criteria raised a serious question regarding the correctness of the Board’s interpretation of Ontario Regulation 282/98 defining industrial property.

The court also found that the issue had broader importance for the property assessment process in Ontario.

Leave to appeal to the Divisional Court was granted.

The defendant moved to strike the plaintiffs' amended statement of claim under Rule 21.01(1)(b), arguing that sections 22 and 23 of the Broader Public Sector Accountability Act barred the action.

The plaintiffs, independent school bus operators, alleged the defendant breached common law duties and acted unlawfully in its procurement process for student transportation services.

The court dismissed the motion, finding it was not plain and obvious that the Act immunized the defendant from unlawful acts or limited the plaintiffs' remedies solely to damages.

The court held that the novel legal issues raised required a complete evidentiary record.

Following disposition of an application concerning condominium governance and alleged oppression, the court determined costs.

Although the applicant obtained a remedial order requiring the condominium corporation to comply with governance requirements under the Condominium Act, 1998, the central oppression claim concerning outdoor storage in common elements was unsuccessful.

The court found the respondents were largely successful and entitled to partial indemnity costs.

However, their costs were reduced to reflect the remedial governance order obtained at the instance of the applicant.

Costs were fixed at $12,288.48 inclusive of fees, disbursements, and HST.

During a jury trial concerning entitlement to life insurance proceeds, the court issued a mid‑trial ruling on when a life insurance contract takes effect under s. 180(1) of the Insurance Act.

The dispute concerned whether the policy came into force on its stated effective date or only upon delivery, payment of the first premium, and the absence of any change in insurability.

The court held that ambiguous language in the application’s signature form did not displace the statutory requirements.

The contractual references to an “effective date” related only to the calculation of policy benefits and time periods, not the date the policy came into force.

Accordingly, s. 180(1) governed and the policy would only take effect if there had been no change in insurability between application and delivery.

The applicant father sought to vary a prior joint custody order to obtain sole custody and child support.

The court considered whether there had been a material change in circumstances under the Children’s Law Reform Act and whether the proposed variation was in the best interests of the children.

Evidence addressed school attendance, hygiene concerns, medical care, and parental communication failures while the children resided primarily with the respondent mother.

The court found a material change in circumstances and concluded that the children’s educational, medical, and developmental needs were being better met while residing with the father.

Sole custody was granted to the father with liberal access to the mother, and income was imputed to the mother for child support purposes.

A third party brought a motion to change venue from Toronto to Chatham in litigation arising from damage to telecommunications infrastructure.

The court considered the factors under Rule 13.1.02(2) of the Rules of Civil Procedure, including convenience of witnesses, location of the damage, and community interest.

Although some witnesses and the incident location were in Chatham, many damages witnesses and counsel were located in Toronto and the plaintiff had chosen Toronto as the forum.

The moving party failed to establish that the proposed venue was significantly better than the plaintiff’s chosen forum.

The motion to change venue was dismissed with costs.

A residual beneficiary brought a motion seeking a ruling that the drafting solicitor’s contemporaneous notes regarding the testator’s instructions were inadmissible in an application to interpret a will.

The dispute concerned whether the residue should be divided into three shares, with one share divided among four children, or into six equal shares among six individuals.

The court held that the language of the will suggested an equal division among six beneficiaries but also found that, if the clause were considered ambiguous as argued by the moving party, extrinsic evidence could be admitted to clarify the testator’s intention.

Applying appellate authority recognizing a trend toward admitting surrounding circumstances in will interpretation, the court ruled that the solicitor’s notes were admissible as extrinsic evidence.

Costs were ordered in the cause.

The defendant brought a motion to strike the plaintiff's Statement of Claim, which sought to impose a resulting or constructive trust over a camp property.

The court found that the plaintiff, having been incorporated in 2011, could not maintain causes of action based on historical events that occurred prior to its incorporation.

The court struck the Statement of Claim and dismissed the action without leave to amend, but without prejudice to the commencement of a fresh proceeding under the Charities Accounting Act or the court's inherent jurisdiction over charities.

The defendants brought motions to dismiss a medical negligence action for delay after the matter had remained unresolved for more than twelve years and had been struck from the trial list without restoration.

The court found that the delay was both inordinate and largely inexcusable, identifying several extended periods where the plaintiffs failed to advance the litigation with diligence.

However, the defendants did not establish actual prejudice and the plaintiffs successfully rebutted the presumption of prejudice by demonstrating that contemporaneous medical records and discovery transcripts remained available to refresh witnesses’ recollections.

Because the evidence did not establish a substantial risk that a fair trial was no longer possible, the court declined to impose the severe remedy of dismissal for delay.

The motions were dismissed but the court warned that further delay could justify a renewed motion.

The defendants brought a motion to remove the plaintiff's litigation guardian and her solicitors of record due to conflicts of interest.

The litigation guardian, who is the plaintiff's daughter, was also defending a third-party claim brought by the defendants, creating a conflict between her personal interests and her duties to the plaintiff.

The solicitors of record represented the daughter in both her capacity as litigation guardian and personally as a third party.

The court found that both the litigation guardian and the law firm were in an irreparable conflict of interest and ordered their removal.

Two truck drivers were charged with importing cocaine and possession of cocaine for the purpose of trafficking after border officers discovered 45 kilograms of cocaine hidden in boxes of peppers in a commercial shipment.

The Crown relied on circumstantial evidence, including driver logs and an unexplained stop during the trip, to argue that the accused concealed the drugs after loading the cargo in California.

The defence pointed to irregularities in the loading process captured on video, the absence of forensic evidence linking the accused to the boxes, and the possibility that the drugs were inserted before the truck was loaded.

The court held that the Crown failed to prove knowledge and control beyond a reasonable doubt.

Both accused were acquitted.

In a highly contentious post‑divorce family dispute involving two teenage children, the court addressed ongoing conflict between the parents regarding custody, access, and child support.

The evidence showed prolonged litigation and persistent conflict that had negatively affected the children.

The court allowed the son’s primary residence to remain with the father but declined to alter custody arrangements.

Significant costs were awarded to the mother due to the father's conduct and repeated litigation.

The court further ordered that no additional proceedings could be commenced by either party without leave of the court.

The Crown applied under s.16(1) of the Controlled Drugs and Substances Act for forfeiture of a motorcycle club clubhouse alleged to be offence-related property following convictions of several members for drug trafficking offences.

The court held that the clubhouse facilitated drug trafficking activities, including meetings, negotiations, and at least one drug transaction, and therefore qualified as offence-related property committed in relation to the offences.

The respondent corporation failed to establish that it was an innocent owner under s.19(3), as the property was effectively controlled by members of the organization involved in the offences.

The court also rejected relief under s.19.1(3), finding forfeiture was not disproportionate given the seriousness of the offences, the role of the property, and its fortified nature.

The plaintiff employer brought a civil action against a former employee alleging conversion, fraud, and breach of fiduciary duty arising from systematic theft of store funds through manipulation of cash register void transactions.

The defendant had previously pleaded guilty to a criminal theft charge and paid partial restitution.

The court accepted the employer’s statistical analysis of business records showing excessive void transactions and found, on a balance of probabilities, that the defendant misappropriated $70,699.93.

The court further held the defendant occupied a position of trust as a night manager and therefore acted in a fiduciary capacity.

Judgment was granted for damages and a declaration that the debt arose from fraud while acting in a fiduciary capacity under the Bankruptcy and Insolvency Act and would survive bankruptcy; punitive damages were refused.

The respondent brought a motion seeking an order requiring the applicant and an added party (the applicant’s mother) to pay into court the net proceeds from the sale of a property alleged to be a former matrimonial home.

The moving party claimed a trust interest and alleged cash contributions toward renovations, asserting unjust enrichment and seeking preservation of funds pending determination of property claims.

The court reviewed the evidentiary record, including financial disclosure and the moving party’s inconsistent affidavits regarding the alleged cash contributions.

The court found the evidence insufficient to establish a prima facie case for unjust enrichment or to justify a mandatory interlocutory injunction requiring payment of funds into court.

While a triable issue remained as to whether the property may have been a matrimonial home, the motion was dismissed, subject to continuing an order restraining depletion of the applicant’s property under s. 12(a) of the Family Law Act.

The moving defendants sought a stay of an Ontario action arising from injuries allegedly sustained during a horseback riding excursion in Jamaica.

The plaintiffs did not attend the motion or file responding materials.

Applying the jurisdictional framework from Club Resorts Ltd. v. Van Breda, the court held that the foreign hotel and excursion operators lacked the necessary presumptive connecting factors to Ontario.

Although one defendant carried on business in Ontario, the presumption of jurisdiction was rebutted because the defendant had no involvement in the excursion where the injury occurred.

Alternatively, the court held that Jamaica was clearly the more appropriate forum under the doctrine of forum non conveniens.

Following the Court of Appeal’s reversal of a certification order in a proposed class action alleging misclassification of supervisors and unpaid overtime under the Canada Labour Code, the motion judge was directed to fix the defendant’s costs of the certification motion.

The defendant sought over $1 million in partial indemnity costs, arguing that it had achieved complete success and that the litigation involved substantial complexity and financial exposure.

The representative plaintiff and the Law Foundation argued that costs should be nominal or substantially reduced because the proceeding raised novel legal issues and public interest considerations under s. 31 of the Class Proceedings Act, 1992.

Applying issue estoppel arising from the Court of Appeal’s reasons and considering the purposes of class action costs, the court fixed costs at $475,000 all inclusive.

The plaintiff tax consulting firm sued a corporate client, its president, and its investors for unpaid fees relating to successful SR&ED tax credit applications.

The plaintiff alleged that the investors gave oral assurances to the president that they would pay the plaintiff's fees, which the president relayed to the plaintiff.

The court dismissed the claims for breach of contract and misrepresentation against the investors, finding the president's evidence regarding the oral assurances to be not credible.

The court also dismissed the unjust enrichment claim, finding no benefit was received by the investors and that the corporate veil provided a juristic reason for any benefit retained.

Default judgment was granted against the corporate client.

The plaintiff brought a motion for leave under Rule 31.05.1 of the Rules of Civil Procedure to continue the examination for discovery of the defendant, his former lawyer, beyond the seven-hour limit.

The underlying action involved allegations of solicitor negligence regarding an improvident settlement of an accident benefits claim.

The court considered the complexity of the issues, the amount in dispute, and the interests of justice, concluding that an additional 2.5 hours of examination was warranted.

The motion was granted, and the defendant was ordered to pay partial indemnity costs.