SCJ 2012

Purchasers of rural property alleged that the vendor misrepresented the location of the boundary and sought a declaration that they owned an additional 2.3 acres, a vesting order, and damages for trespass and conversion.

The defendant vendor moved for summary judgment, arguing that the parcel conveyed was the exact property described in the registered plan and protected by the Land Titles Act.

The court held that, because the property was registered under the land titles system and no fraud was pleaded, the purchasers could not obtain rectification of title or a vesting order inconsistent with the registered parcel.

Summary judgment was granted dismissing the claims for declaratory relief and a vesting order.

Claims for damages relating to trespass and removal of soil raised triable issues and were permitted to proceed to trial.

In a high-conflict family law trial, the court addressed issues of child support, spousal support, and parental alienation.

The court found that the respondent father had intentionally alienated the two younger children from the applicant mother, using police and child protection services to drive a wedge between them.

The father was found in contempt of an access order and fined $4,000.

The court imputed income to both parties, finding the mother intentionally under-employed by working 4.5 days a week, and the father intentionally under-employed by taking a 40% pre-retirement income reduction to avoid spousal support.

The court ordered the mother to pay child support for the two younger children living with the father, and ordered the father to pay compensatory spousal support to the mother, with step-downs leading to his retirement.

The plaintiff brought a motion seeking to strike the defence of two defendants, obtain payment of $13,000 held in trust that had previously been ordered payable to a corporate defendant, and seek personal costs against the defendant’s solicitors.

The corporate defendant had been dissolved prior to earlier court orders but was in receivership, and an affidavit had mistakenly referred to it as being in receivership without mentioning the dissolution.

The court held that under s. 242(1) of the Ontario Business Corporations Act, proceedings against a dissolved corporation may continue and property of the corporation remains available to satisfy orders.

The dissolution did not invalidate earlier court orders or terminate the receivership, and the inadvertent misstatement about receivership did not justify setting aside the prior order.

The trust funds were ordered paid to the receiver and the plaintiff’s motion largely failed except for the uncontested striking of the other defendants’ defence.

The defendants brought a motion seeking particulars of allegations in an amended statement of claim relating to copyright infringement in computer software.

The court held that the allegations, together with the particulars already provided, were not bald and that the defendants bore the onus of establishing that the requested particulars were not within their knowledge and were necessary to plead a defence.

The only evidence filed was an affidavit from the defendants’ lawyers, which the court found insufficient to satisfy that burden.

The court declined to exercise its discretion under Rule 25.10 of the Rules of Civil Procedure to order particulars.

The motion was dismissed with costs, subject to a temporary stay permitting the defendants to file further affidavit evidence and potentially have the motion return.

The plaintiff credit union, in liquidation, brought a motion for partial summary judgment against its insurer under a fidelity bond.

The claim arose from an internal fraud perpetrated by the credit union's general manager, who engaged in an off-book deposit scheme that disguised a significant capital shortfall.

The insurer denied coverage, arguing that the plaintiff failed to prove a direct loss caused by the dishonest acts and that the losses were indirect or consequential.

The court dismissed the motion, finding that the complex forensic accounting evidence required viva voce testimony and cross-examination at trial to determine causation and quantify the covered loss.

The tenant applied for declarations that the landlord’s termination of a commercial lease was unlawful and that the tenant was entitled to re-enter the premises.

After the fixed lease term expired, the tenant remained in possession due to delays relocating a medical clinic caused by regulatory inspections.

The landlord changed the locks and removed the tenant’s property, asserting that the lease had expired and vacant possession was required for a new tenant.

The court held that the lease’s overholding clause created a month-to-month tenancy when the tenant remained in possession after expiry.

Because the landlord had not provided proper notice to terminate the month-to-month tenancy and did not comply with the lease’s notice provisions, the landlord breached the lease by re-entering and removing the tenant’s property.

A non-profit housing cooperative applied for an order terminating a member’s occupancy and membership rights due to a prolonged history of late, partial, and non-payment of housing charges.

Although the respondent’s rent-geared-to-income subsidy dispute was eventually resolved and arrears were later paid, the cooperative maintained that eviction was justified based on repeated breaches of payment obligations.

The court held that the cooperative board’s eviction decision was reasonable and procedurally fair, noting that courts generally defer to decisions of democratically governed housing cooperatives unless unreasonable.

The respondent failed to pursue the available internal appeal process and provided no exceptional circumstances justifying equitable relief under the governing legislation.

The application was granted and a writ of possession ordered.

A secured lender applied for the appointment of a receiver over companies engaged in sub‑prime vehicle financing, while the debtor companies brought a cross‑application seeking protection under the Companies’ Creditors Arrangement Act.

The court considered the statutory tests under the Bankruptcy and Insolvency Act and the Courts of Justice Act for appointing a receiver and assessed the parties’ conduct, the deterioration of the secured creditor’s collateral, and the lack of available operating financing.

The debtor companies had made material misrepresentations regarding their financial position and had repeatedly failed to meet repayment deadlines despite forbearance arrangements.

The court found that appointing a receiver was just and convenient to preserve and realize on the secured creditor’s collateral.

The court also refused CCAA relief because the debtors had no restructuring plan or “germ of a plan,” and the major secured creditors opposed any arrangement.

On an interim family law motion, the court addressed issues of spousal support, child support, corporate control, property taxes, and sale of the matrimonial home following separation.

The respondent sought imputation of income to the applicant and the sale of the matrimonial home, while the applicant sought support at the high range of the Spousal Support Advisory Guidelines and joint signing authority over a jointly owned company.

The court declined to order the sale of the matrimonial home, finding the request premature given unresolved equalization issues and the presence of other assets.

The court set interim child and spousal support based on the respondent’s income and declined to impute income to the applicant while she pursued education to become self-supporting.

The applicant was granted joint signing authority on the company accounts.

A condominium corporation applied under the Condominium Act, 1998 to enforce by-laws limiting residents to one pet under 20 kilograms and requiring pets to be leashed.

Evidence established that the unit owner kept two dogs exceeding the weight limit and allowed them to run off-leash, leading to complaints that the dogs frightened residents and could cause injury.

The respondent argued selective enforcement and pointed to other by-law infractions by residents.

The court held that selective enforcement did not bar relief where the board acted reasonably in response to complaints and had not acted vindictively or capriciously.

An order was granted requiring the removal of the dogs from the condominium property.

The successful appellants sought costs following summary judgment motions in land transfer tax appeals.

They requested over $260,000 and argued that costs should also include work performed for additional related appeals and disputes that had been held in abeyance, as well as elevated costs based on a purported Rule 49 settlement offer.

The court declined to award costs for the additional appeals and related disputes because they were not before the court and there was no evidentiary basis to assess the work performed.

The court also held that the settlement proposal was not a valid Rule 49 offer because it addressed matters beyond the proceedings before the court and therefore did not justify elevated costs.

The parties were directed to attempt to agree on the remaining costs or provide further submissions limited to the four appeals heard.

The offender pleaded guilty to sexual interference and sexual assault involving a 17‑year‑old who sought spiritual healing from him.

The offender, a respected cultural leader and pipe carrier within the Ojibway community, exploited a position of trust by persuading the complainant that sexual touching was part of a healing ritual.

The court considered significant aggravating factors including the victim’s age, the abuse of authority, and a prior conviction for sexual assault.

Mitigating factors included a guilty plea, remorse, deteriorating health, and extensive Gladue factors detailing systemic and personal hardships experienced by the Indigenous offender.

Balancing denunciation and deterrence with the offender’s background, the court imposed a custodial sentence followed by probation and ancillary orders.

Following a successful summary judgment motion dismissing a civil action, the defendant sought costs on a substantial indemnity basis.

The court considered Rule 20.06 of the Rules of Civil Procedure and the discretionary factors under s.131 of the Courts of Justice Act and Rule 57.01.

The moving party argued the claim lacked merit and that litigation conduct justified punitive costs.

The court held that the plaintiffs’ conduct was not sufficiently reprehensible, scandalous, or outrageous to justify substantial indemnity costs and that no Rule 49 offers to settle were made.

Partial indemnity costs were awarded with minor reductions to hours and disbursements.

The plaintiff mortgagor brought an action against the defendant mortgagees for the improvident sale of a 125-acre development property under a power of sale.

The property was sold for $12.5 million.

The court found that the defendants failed to take reasonable precautions to obtain the fair market value of the property, having listed it at an inordinately low price, failed to adequately market it, unreasonably restricted the field of potential buyers, and acted with undue haste.

After reviewing competing appraisal evidence, the court determined the fair market value of the property at the time of sale was $16 million.

The court awarded the plaintiff $3.5 million in damages, representing the difference between the fair market value and the sale price.

The defendants brought a motion under Rule 25.10 of the Rules of Civil Procedure seeking further particulars of allegations in a statement of claim arising from an alleged oral agreement for consulting building services.

The moving parties sought additional documentation relating to invoices from consultants and proof of payments made by the plaintiff.

The court reviewed the governing principles on ordering particulars, emphasizing that particulars are required only when the information is not within the requesting party’s knowledge and is necessary to enable a responsive pleading.

The court held that the plaintiff had already provided sufficient particulars through a detailed invoice attached to an affidavit and that the additional documents requested constituted evidence rather than particulars.

The motion was dismissed and the defendants were ordered to deliver their statement of defence.

The plaintiff brought a motion for summary judgment alleging negligence by an insurance broker for failing to properly offer optional income replacement benefits under an automobile insurance policy.

The court held that insurance providers owe a duty of care to customers when providing information about available coverage and found that the insurer breached the standard of care by failing to meaningfully explain optional benefits as required under the Statutory Accident Benefits Schedule.

However, the plaintiff failed to establish causation because the evidence did not show on a balance of probabilities that optional benefits would have been purchased if properly offered.

An adverse inference was drawn from the absence of evidence from the spouse who had primary dealings with the insurer.

As a result, the negligence claim failed.

Following an earlier ruling on the merits of an appeal, the court addressed the issue of costs.

The responding party argued that costs of the appeal should be deferred to the arbitrator.

The court rejected that submission and held that the moving party had succeeded on the appeal, even though the remedy granted differed from what had been proposed.

Costs were therefore awarded to the successful party.

The defendant solicitors brought a motion for summary judgment to dismiss the plaintiffs' solicitor negligence claim as statute-barred under the Limitations Act, 2002.

The plaintiffs cross-moved, arguing the limitation period did not commence until a 2009 court decision confirmed the error in a real estate statement of adjustments.

The court found that a reasonable person in the plaintiffs' position would have known of the potential claim when a related lawsuit was commenced in September 2006.

The court granted the defendants' motion, dismissing the action as statute-barred and an abuse of process, and awarded costs to the defendants.

The parties, parents of a four-year-old child, sought final orders regarding custody, access, child support, travel, and the child's name.

The court maintained sole custody with the mother, finding the parents unable to communicate or cooperate.

The father was granted regular access, with pick-ups and drop-offs moved to public locations to reduce conflict.

The father was ordered to pay ongoing child support based on imputed income, with payment of arrears suspended until his income improves.

The court also ordered the child's surname be changed to include the father's surname, exercising its parens patriae jurisdiction.

The plaintiff former employer moved for an interlocutory injunction to enforce non-competition and confidentiality clauses against a former employee who invented a specialized technology.

The court applied the heightened 'strong prima facie case' standard for restrictive covenants in employment contracts.

While the court found a strong prima facie case that the employee breached non-competition provisions, it dismissed the injunction because the plaintiff failed to demonstrate irreparable harm, as damages could be quantified.

However, the court granted a preservation order regarding the disputed technology and related electronic records.