SCJ 2012

The plaintiff son sought to propound his father's last will, which left the bulk of the estate to him and only $1,000 to each of his five defendant sisters.

The sisters challenged the will on the grounds of lack of due execution, undue influence, and lack of testamentary capacity, pointing to suspicious circumstances including the son's involvement in arranging the will with an unknown lawyer.

The court found that while suspicious circumstances existed, the son successfully proved on a balance of probabilities that the father had testamentary capacity and knew and approved of the will's contents.

The court ordered that a Certificate of Appointment of Estate Trustee with a will may issue.

The appellant appealed a decision of the Consent and Capacity Board under the Health Care Consent Act, 1996.

The appeal had not yet been perfected because the appellant had not filed the required factum after service of the Board record and transcript.

The court determined that, given the factual and legal complexity of the issues, the appointment of amicus curiae was necessary to assist the appellant in preparing a factum and presenting the appeal.

The court directed the Attorney General to select experienced counsel from the Consent and Capacity Panel to act as amicus curiae and established timelines for the filing of factums and scheduling of the appeal hearing.

The plaintiffs brought a motion for approval of a North American-wide class action settlement regarding alleged deficiencies in the defendant's organic shingles warranty program.

The settlement enhanced the warranty, provided an independent appeal process, and had no monetary limit or expiration date.

The court found the settlement was fair, reasonable, and in the best interests of the class members, noting the arm's length negotiations, early resolution, and lack of objections.

Following a complex family law trial involving challenges to a marriage contract, equalization, support arrears, and related financial claims, the successful party sought substantial costs.

The court considered Rule 24 of the Family Law Rules and found that the unsuccessful party acted in bad faith, including failing to provide disclosure, refusing reasonable settlement offers, and engaging in conduct that prolonged the litigation.

The court held that such conduct justified full recovery costs.

After deducting certain conference-related and administrative charges, the court awarded substantial costs and prejudgment interest to the successful party and costs to added respondents from the date of their settlement offer.

Following a family law proceeding in which the parties resolved nearly all substantive issues through Minutes of Settlement, the court addressed the issue of costs.

The judge held that costs for earlier motions could not be determined by the trial judge because Rule 24(10) of the Family Law Rules requires the judge who heard the step to determine costs promptly after that step.

Given that the substantive issues were resolved through settlement and the record did not permit a clear determination of success by either party, the court declined to find either party more successful.

The court concluded the settlement represented a compromise and that determining a winner or loser would amount to speculation.

Each party was therefore ordered to bear their own costs.

A municipality brought a motion seeking directions regarding service of a notice of application for a declaration under the Beds of Navigable Waters Act concerning whether a stream crossing the respondents’ property was navigable at the time of the original Crown grant in 1831.

The respondents asserted that the stream created a natural severance of their land and that the stream bed was unpatented Crown land.

The court held that the only issue in the application was whether the waterway was navigable at the time of the Crown grant, which affected only the parties to the proceeding.

Upstream and downstream landowners would need to litigate the issue independently based on their own Crown grants.

Accordingly, no additional parties were required to be served, and directions were provided regarding the order of proof at trial.

Following a judgment declaring the respondent a vexatious litigant, the applicant sought costs of the application.

The court found that the respondent's history of vexatious litigation warranted a substantial indemnity costs award to sanction his behaviour and indemnify the applicant.

The court fixed the applicant's substantial indemnity costs at $17,943.19.

Following judgment finding the defendant liable for passing off and awarding $10,000 in compensatory damages, the court determined the issue of costs.

The plaintiff sought over $40,000 in partial indemnity costs while the defendant sought costs in its favour due to the plaintiff’s failure to obtain punitive damages.

The court emphasized that costs in simplified procedure actions under Rule 76 must remain significantly lower than those in ordinary procedure and proportionate to the recovery.

Considering the modest damages award, settlement offers, and Rule 57.01 factors, the court found both parties’ proposed costs excessive.

The plaintiff’s costs were fixed at $15,000 inclusive of taxes and disbursements.

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.