SCJ 2012

In a family law proceeding following separation after a long marriage, the remaining issue concerned the appropriate imputation of income to both parties for purposes of determining spousal support.

The applicant alleged that the respondent had intentionally reduced his income after separation, while the respondent argued that the applicant was underemployed and capable of earning more than her reported income from retail work.

The court accepted evidence of broader economic factors affecting the respondent’s earnings and declined to find intentional income reduction.

However, the court found the applicant’s reported income unrealistically low and imputed a higher earning capacity to her.

Applying the Spousal Support Advisory Guidelines midpoint, the court ordered spousal support of $2,000 per month effective November 1, 2010 with arrears payable and a four‑year review period.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding the legal limit, arguing that the trial judge erred in dismissing a s. 11(b) Charter application alleging unreasonable delay.

The appellant also argued that the trial judge’s “unorthodox” approach to hearing the application created a reasonable apprehension of bias because the judge outlined his preliminary views after reviewing the written materials before hearing full submissions.

The appeal court held that the trial judge’s conduct reflected preparation rather than predisposition and that counsel had a full opportunity to make submissions.

The court further found no error in the trial judge’s attribution of delay or assessment of prejudice.

The conviction was upheld and the appeal dismissed.

In an employment constructive dismissal action, the defendant employer brought a motion seeking the return of internal emails and a declaration that they were protected by solicitor-client privilege.

The emails had been copied by the plaintiff’s spouse after they appeared on the employer’s computer while he was assisting with a technical task.

The plaintiff argued that privilege had been waived through recklessness, disclosure to a consultant, and fairness considerations.

The court held the emails were privileged communications relating to legal advice and that the consultant acted as an agent of the client, preserving privilege.

The court also found the documents were deliberately taken without authority and ordered their return and deletion, ruling they could not be used in the litigation.

Following a complex insurance dispute involving alleged arson and the destruction of artwork, the court determined the appropriate costs payable by the insurer to the plaintiff after two trials.

The court reviewed legal fees from multiple law firms and reduced several claimed amounts where work was unrelated to the litigation or where hourly rates were excessive for counsel’s level of experience.

Expert witness fees for an appraisal report valuing destroyed artwork were also scrutinized, with the court reducing the claimed preparation time and attributing only two‑thirds of the report’s cost to the litigation because part of the work related to the insurance proof of loss requirement.

The court rejected a claim for contractual interest of 2% per month on the expert’s fees but awarded prejudgment interest at the average annual statutory rate.

The defendant’s partial success on a punitive damages claim did not justify a reduction in the plaintiff’s costs.

Following a lengthy family trial, the court determined costs on written submissions and found the responding party's disclosure failures and litigation conduct materially increased complexity and trial time.

The court declined to revisit prior costs awards and rejected the responding party's claim for personal compensation for business time.

Substantial indemnity costs were awarded to the moving party, but full indemnity was not granted because the conduct did not meet an egregious bad-faith threshold.

The court fixed pre-trial, trial, and post-trial fees and disbursements totalling $74,537.43 and characterized the costs as related to child support enforcement and collection.

Sentencing decision following convictions for sexual interference and invitation to sexual touching involving a child under the offender’s care.

The offender compelled the child to perform oral sex and threatened her with death if she refused, constituting a serious breach of trust by a person acting in a parental role.

The court considered aggravating factors including the offender’s position of trust, threats used to compel the sexual act, and the psychological impact on the complainant, while recognizing the offender’s lack of prior criminal record as a mitigating factor.

The court also addressed whether time spent on bail with a curfew should reduce the custodial sentence and concluded that such conditions warranted minimal credit.

Applying the principles of denunciation and deterrence and reviewing comparable appellate authorities, the court imposed a four‑year custodial sentence with credit for pre‑trial custody and several ancillary orders.

The defendants brought a motion to strike out portions of the plaintiff's statement of claim alleging negligent investigation, malicious prosecution, and Charter breaches, arguing they were barred by issue estoppel following a police disciplinary hearing.

The court found that while the elements of issue estoppel were met, it would be unjust to apply the doctrine because the disciplinary hearing used a higher 'clear and convincing evidence' standard of proof compared to the civil balance of probabilities standard.

The motion to strike was dismissed, but the action was transferred to Stratford on consent.

The defendant brought a motion to set aside service of a statement of claim and stay an Ontario action alleging a historical sexual assault that occurred decades earlier in Ontario.

The plaintiff resided in the Middle East and had not lived in Canada for approximately 30 years, while the defendant had resided in Manitoba since the early 1970s and had serious health issues.

Applying the real and substantial connection test and forum non conveniens principles, the court held that the connection between the claim and Ontario was insignificant and that the presence of plaintiff’s counsel in Ontario did not establish jurisdiction.

The court further determined that Manitoba was the more appropriate forum, given the defendant’s residence and health circumstances.

Service was set aside and the proceeding was stayed.

Following the dismissal of the plaintiff's action, the successful defendants sought costs on a substantial indemnity basis.

The court found that the plaintiff's conduct was not reprehensible and awarded costs on a partial indemnity basis.

The court reviewed the defendants' bills of costs, making reductions for excessive trial preparation time and for the defendants' failure to properly produce relevant documents before trial, which had necessitated a two-day adjournment.

Total costs of $784,276.99 were awarded to the defendants.

The defendant moved for additional security for costs in complex commercial litigation involving a proposed wind energy project.

The corporate plaintiffs admitted they had no material assets in Ontario and argued that they were impecunious and unable to raise funds.

The court held that impecuniosity requires full financial disclosure showing that the corporation, its shareholders, creditors, and other potential beneficiaries cannot raise funds to post security.

The evidence showed significant undisclosed financial resources and potential funding sources among shareholders and related parties, and the plaintiffs failed to meet their evidentiary burden.

Exercising its discretion under Rule 56.01(d) of the Rules of Civil Procedure, the court ordered additional security for costs in the amount of $350,000.

A secured creditor brought an application under the Bankruptcy and Insolvency Act seeking the appointment of an interim receiver over the assets of a debtor corporation.

The debtor opposed the application and brought a motion to stay the receivership proceeding or alternatively to consolidate it with a separate action challenging the validity of a general security agreement and alleging contractual breaches.

The court found on the evidence that the debtor was insolvent, unable to meet obligations as they became due, and operating at a deficit.

As the debtor had granted security that became enforceable upon insolvency, the secured creditor’s interest required protection through court supervision.

An interim receiver with limited powers was appointed and the debtor’s motion for a stay or consolidation was dismissed.

During a murder trial, the Crown sought to admit videotaped out‑of‑court statements made by a witness to undercover officers in a “Mr. Big” operation as substantive evidence under the principled hearsay exception.

The witness recanted or professed lack of memory during cross‑examination under s. 9(2) of the Canada Evidence Act.

The court held that although necessity was established, the Crown failed to demonstrate threshold reliability on a balance of probabilities.

The witness’s repeated claims of memory loss prevented meaningful cross‑examination and undermined the jury’s ability to assess reliability.

Additionally, the inducements and incentives inherent in the “Mr. Big” scenario raised serious concerns about the trustworthiness of the statements.

The videotaped statements were therefore ruled inadmissible as substantive evidence.

The plaintiff brought a summary judgment motion in a wrongful dismissal action following the closure of the defendant’s manufacturing operations.

The court considered the appropriate reasonable notice period, whether overtime should be included in calculating damages, the compensability of lost employment benefits, and whether mitigation income earned during the statutory notice period under the Employment Standards Act should reduce common law damages.

Applying the Bardal factors, the court determined that a 20‑month notice period was appropriate.

The court held that overtime formed an integral component of the employee’s compensation and must be included in damages, and that the employee was entitled to compensation for lost benefits.

Mitigation income earned during the statutory ESA notice period was not deductible from damages beyond ESA minimum entitlements.

Sentencing following convictions for break and enter to commit theft, obstruction of justice, and possession of break-in instruments arising from a planned theft of vehicles from a commercial dealership.

The offender had an extensive criminal record involving repeated property offences and prior custodial sentences that had failed to deter further offending.

The court emphasized denunciation, deterrence, and separation from society, finding the offences constituted a sophisticated enterprise crime.

A five‑year penitentiary sentence was imposed for break and enter, with concurrent sentences on the remaining counts.

Pre‑trial custody credit was limited to a 1:1 ratio, with a further deduction under the totality principle.

The applicant, the former president and CEO of the respondent company, sought a declaration that the company's management information circular was not properly authorized and contained material misrepresentations regarding his departure.

He argued the circular falsely stated he 'stepped down' instead of being terminated without cause, and omitted his potential $1 million severance claim.

The court found the circular was validly authorized through retroactive ratification.

While the court agreed the disclosure was not entirely forthright, it dismissed the application because the applicant failed to prove the alleged misrepresentations were material to a reasonable shareholder voting on the election of directors.

A contractor sought to enforce lien and related claims against a land vendor after a hotel purchaser defaulted on payment for servicing work on the parcel to be sold.

The court held the vendor was not an owner within sections 1.1 or 18 of the Construction Lien Act for the impugned work, finding no request, privity, consent, or joint/common ownership status that would ground liability.

Claims in unjust enrichment and quantum meruit were rejected because the deprivation flowed from the purchaser’s contractual breach and no corresponding enrichment by the vendor was established.

The court found the contractor’s proven damages remained those already reflected in judgments against the purchaser.

The action was dismissed with costs, but the contractor was found entitled to a lien against the purchaser’s $25,000 deposit held by the vendor.

A guarantor brought a motion to set aside an order striking her statement of defence and affidavit and to set aside a default summary judgment obtained by a bank arising from loan guarantees executed in connection with corporate borrowing.

The moving party argued she lacked independent legal advice, had limited English proficiency, and was dominated by her spouse when signing the guarantees.

The court acknowledged serious credibility concerns and delay but found potential prejudice to the guarantor if she were denied the opportunity to defend the action.

As the bank’s interests could be protected by maintaining existing execution and garnishment proceedings, the court set aside the order striking the defence and the default judgment.

The moving party was ordered to pay the bank’s thrown-away costs forthwith.

The applicant children's aid society brought a summary judgment motion seeking an order that a child be found in need of protection and made a Crown ward without access.

The respondent parents, who had significant cognitive limitations and a history of having four other children made Crown wards, opposed the motion.

The court found no genuine issue requiring a trial, as the parents failed to respond meaningfully to the society's evidence regarding their inability to parent.

The court granted the summary judgment, finding the child in need of protection and ordering Crown wardship without access.

The defendant brought a motion under rule 21.01(3)(d) of the Rules of Civil Procedure seeking dismissal of a defamation action as frivolous, vexatious, or an abuse of process.

The action arose from a letter alleging that the plaintiffs would be in a conflict of interest while representing a professional association in regulatory consultations.

The court held that allegations of conflict of interest could potentially be defamatory and that determining whether the statement was defamatory required resolution of contested facts.

Given significant factual disputes and the availability of defences such as qualified privilege and fair comment, the court found the claim raised real issues requiring trial.

The motion to dismiss was therefore denied.

The plaintiffs sought a vesting order over residential property registered in their daughter's name, alleging that title had been placed in her name solely to obtain financing due to their bankruptcies.

They asserted an oral agreement that ownership would be transferred to them once the loan used to purchase the property had been repaid.

The defendant denied the agreement and argued that any compensation should be limited to monetary reimbursement for payments made.

The court found that the plaintiffs had paid the purchase-related expenses and loan repayments and that the defendant would be unjustly enriched if she retained the property.

Applying resulting trust principles, the court ordered that the property be vested in the plaintiffs.