SCJ 2012

A construction contractor sued a municipality for damages arising from delay in authorizing work after the contractor’s tender was accepted for a landfill leachate system project.

The court held that the municipality was responsible for two overlapping periods of delay: the late communication of the contract award and the municipality’s failure to resolve whether the contractor’s proposed construction methodology formed part of the contract.

Interpreting the tender documents, the court concluded that the methodology submission was required to be incorporated into the contract and that the contractor was justified in insisting upon its inclusion before commencing work.

The delays forced a split construction schedule and caused financial losses including lost revenue, escalation costs, refinancing expenses, and equipment rentals.

Damages were assessed using the plaintiff’s expert methodology and awarded accordingly.

The plaintiff brought a solicitor negligence claim against her former family lawyer arising from advice provided during the negotiation and execution of a separation agreement.

The plaintiff alleged the lawyer failed to meet the standard of care by not ensuring full financial disclosure, by allegedly mischaracterizing settlement funds from employment litigation, and by permitting a final spousal support release.

The court found that the lawyer repeatedly advised the plaintiff not to sign a final agreement without full financial disclosure and even proposed a partial agreement pending further disclosure, but the plaintiff chose to proceed due to time pressure related to a home purchase.

Expert evidence established that the lawyer’s conduct met the standard of care for family law practitioners in the circumstances.

The court further held that the plaintiff failed to prove causation or damages, as later financial disclosure demonstrated the separation agreement was fair and reasonable.

The Crown brought a pre-trial application under s. 714.1 of the Criminal Code to allow the complainant to testify by video link.

The charges of sexual assault and uttering death threats dated back to 1996.

The accused had caused approximately 16 years of delay by fleeing the country and repeatedly changing counsel.

The complainant, who had attended previous preliminary hearings and trial dates, refused to attend in person again.

The court granted the application, finding that the exceptional history of delay caused by the accused justified permitting the video link testimony to ensure the trial could proceed on its merits.

The applicant wife and respondent husband separated after a 16-year marriage.

The court determined issues of equalization, child support, spousal support, and access.

The court imputed $14,400 in annual cash income to the respondent from his automotive business, setting his income for child support purposes at $102,729.67.

The respondent was ordered to pay an equalization payment of $173,430.90.

Spousal support of $600 per month was made final due to the applicant's economic disadvantage.

The respondent was granted Saturday access to the children, but overnight access was denied due to safety concerns and the lack of a proper plan.

In a criminal proceeding, the defence sought exclusion under section 24(2) of Charter evidence obtained through production orders for credit-card and phone records.

After Garofoli-related excisions and limited amplification, the court held the information to obtain did not support the TD Visa production order and found a section 8 breach for those records.

Applying R. v. Grant, the court found good-faith state conduct and a moderate informational-privacy impact, while emphasizing the reliability and trial importance of the records.

Balancing the Grant factors, the court declined to exclude the Visa records.

The defence exclusion application was dismissed, subject to the broader global section 24(2) ruling.

The offender was convicted by a jury of aggravated assault after attacking a teenage victim who had been forced to kneel and apologize before being struck and repeatedly kicked.

The victim suffered multiple facial fractures requiring surgery and continued to experience lasting physical and psychological harm.

At sentencing, the court considered the offender’s youth, Indigenous background, difficult family history, substance abuse issues, and lack of prior violent convictions.

While denunciation and deterrence were significant given the violent and premeditated nature of the attack, the court placed meaningful weight on rehabilitation.

The court imposed an 18‑month custodial sentence in a provincial institution followed by three years of probation, together with weapons prohibitions and a DNA order.

The plaintiffs brought a pre-discovery motion in a medical malpractice action seeking further and better affidavits of documents from the defendants, specifically requesting production of documents relating to allegations of prior similar facts involving Dr. Perkin.

The court ordered Dr. Perkin to produce records of complaints not subject to CPS proceedings, and ordered the defendants to produce medical reports and discovery transcripts from three other lawsuits involving similar facts.

Requests for hospital records from the other lawsuits, CPS complaint records, and an order for a discovery plan were dismissed.

The applicant brought a motion seeking enforcement and interpretation of a consent divorce order requiring the respondent to divide his pension benefits such that the applicant would receive 40% of the current plan benefit.

The parties disagreed whether the order required a "linked" or "delinked" pension division under the Ontario Public Service Employees Union Pension Plan.

Applying principles of contractual interpretation to the consent order, the court held that the language requiring the pension to be divided so the applicant was "entitled, as a member of the plan" supported a delinked structure creating two separate pensions.

The court further held that such an arrangement did not offend the Pension Benefits Act because payment to the applicant would still only occur once the member’s pension came into pay.

The respondent was ordered to instruct the pension administrator to divide the pension on a delinked basis.

The appellant appealed summary conviction findings of guilt for uttering threats to cause bodily harm and to damage property arising from telephone statements made during a dispute with real estate agents regarding the listing of a family member’s property.

The appellant argued the verdict was unreasonable and that the trial judge erred by refusing to admit letters from the Real Estate Council of Ontario that allegedly supported his claim the complainants fabricated the allegations after he threatened to report them.

The appeal court held that the verdict was supported by the evidence and that credibility findings were owed deference.

Although the trial judge may have erred by refusing to review the letters before ruling them inadmissible under the collateral fact rule, any error was harmless and caused no substantial wrong or miscarriage of justice.

The convictions and sentence were therefore upheld.

Following the defendant’s successful motion for summary judgment dismissing the action, the defendant sought partial indemnity costs totaling $27,176.08.

The plaintiff argued that each party should bear their own costs, citing the public interest nature of the claim concerning the rights of a disabled employee, her modest means, and proportionality concerns relative to the value of the claim.

The court held that the case did not raise issues of sufficient public policy importance to justify denying costs to the successful party.

However, the court found duplication of effort and excessive billing rates for work that could have been performed by junior counsel.

Costs were therefore reduced and fixed at $13,000 inclusive of disbursements and HST, payable within 12 months without interest.

In a family law motion to change following several prior consent orders, the court determined parenting access, child support, extraordinary expenses, and arrears.

The parties shared joint custody of a child whose primary residence remained with the mother while the father had relocated to British Columbia.

The court held that extended summer access with the father was in the child’s best interests and ordered five consecutive weeks of annual summer parenting time along with structured telephone contact.

Table child support was set using the payor’s province of residence pursuant to the Child Support Guidelines, and extraordinary expenses were converted from a fixed monthly contribution to proportionate sharing.

Existing arrears established by consent were not reduced, though the monthly repayment amount was lowered due to the payor’s reduced income.

In a construction lien proceeding, the moving party sought to set the action down for trial on the existing pleadings before expiry of the statutory deadline under section 37.

The responding party objected, arguing the proposal would improperly extend time and delay the action.

The court distinguished prior authority and found the procedural history showed active steps had been taken to advance the matter within time.

The court held the objection sought an unwarranted tactical advantage and accepted the proposed without-prejudice filing approach pending rulings on the motion and cross-motion.

Following dismissal of the defendants' summary judgment motion, the court determined the plaintiff's entitlement to costs.

The court applied rule 57.01 of the Rules of Civil Procedure and assessed objections to the plaintiff's bill of costs, including pre-motion entries, client communications, clerical work, and factum preparation time.

The court rejected a substantial indemnity award but found the claimed partial indemnity fees and disbursements were within the range the unsuccessful moving parties should reasonably have expected.

Costs were awarded to the plaintiff on a partial indemnity scale in the amount of $36,330 plus disbursements of $2,567.21, inclusive of applicable taxes.

The applicant mother sought sole custody, permission to relocate to Saskatchewan, child support, and a restraining order against the respondent father.

The parties separated following an incident of domestic violence that led to the father's arrest.

The mother subsequently moved with the children to Saskatchewan to live near her family.

The court found that the mother had been the primary caregiver and that the father struggled with alcohol abuse and had failed to pay child support.

The court granted the mother sole custody and permitted the relocation, finding it in the children's best interests.

The father was granted supervised access and ordered to pay child support based on imputed income.

A restraining order was also issued against the father.

In a custody dispute following a short marriage, the applicant mother sought sole custody of the parties’ young child and raised numerous allegations of abuse against the respondent father.

The court found the mother’s evidence unreliable, identifying inconsistencies between her oral testimony and written materials and concluding that the abuse allegations were unsubstantiated.

The court determined that the mother had deliberately removed the child from the father’s life, withheld information, and demonstrated an unwillingness to support the child’s relationship with the father.

Applying the best‑interests factors under the Children’s Law Reform Act, the court found the father’s parenting plan to be more child‑focused and stable.

Sole custody was granted to the father with defined access to the mother, and the mother’s equalization claim was dismissed.

The court determined costs arising from two family law motion attendances concerning custody, support, and related interim issues.

The moving party sought substantial recovery after expending significant legal fees, including retaining out-of-town counsel and multiple lawyers.

The court held that litigation costs must remain reasonable and proportionate, emphasizing that a losing litigant should not be burdened with inflated fees resulting from a party’s choice to retain expensive metropolitan counsel or excessive legal staffing.

While the moving party was more successful on the core interim issues and the responding party’s unilateral removal of the children precipitated the litigation, the court reduced the claimed costs substantially.

The court awarded fixed costs for each attendance and imposed a significant costs sanction reflecting the responding party’s self-help conduct.

Following settlement of a security for costs motion by consent order requiring the corporate plaintiffs to post security into court, the court was asked to determine costs of the motion.

The plaintiffs argued the motion was unnecessary because they had offered undertakings from partners and allegedly accepted settlement proposals involving promissory notes.

The court held that a costs endorsement should not determine the merits of the underlying motion and applied the test of whether the moving parties’ position was clearly unreasonable.

It found the defendants reasonably proceeded with the motion, as the sufficiency of the undertakings and the existence of a concluded settlement were not self‑evident and the plaintiffs failed to provide timely details.

The moving parties, having obtained substantially the relief sought through the consent order, were awarded partial indemnity costs.

The plaintiffs and a co-defendant brought a motion for partial summary judgment seeking a declaration that losses arising from the collapse of a basement wall were covered under a title insurance policy.

The insurer argued the policy was void due to a material misrepresentation in the insurance application concerning the nature of the dwelling, which was described as a single-family residence despite being used as a multi-unit property.

The court held that there were genuine issues requiring a trial, including whether the misrepresentation was material to the risk and whether the insurer would have issued the same policy had it known the true facts.

The applicants also argued that the insurer had effectively accepted coverage through prior correspondence, but the court found that the evidence surrounding the letter raised factual issues unsuitable for summary judgment.

The motion for partial summary judgment was dismissed.

Sentencing following conviction for participation in a large-scale mortgage fraud involving 22 funded mortgages, over $5.5 million advanced, and quantified institutional losses of approximately $3.916 million, with additional harm to homeowners affected by title fraud and redirected mail.

The court held that denunciation and general deterrence were paramount, but found the offender's role, while significant, was not proven to be at the same level as the principal organizers.

The court imposed an 18-month custodial sentence, credited pre-sentence custody at 2:1 for pre-2010 detention, and reduced the remaining sentence to 16½ months.

Restitution was ordered, but only in the amount of $250,000 rather than the much larger jointly and severally framed amount sought by the Crown, based on proportionality, the offender's lesser involvement, and the evidentiary record.

A non-profit housing cooperative applied to enforce an eviction decision against a member for arrears and repeated failure to pay housing charges in full and on time.

The member had accumulated significant arrears and made sporadic or partial payments despite notice and an opportunity to address the cooperative’s board.

The board terminated the member’s membership and occupancy rights pursuant to the cooperative’s bylaws and the Co‑operative Corporations Act, and the member attempted an internal appeal that failed for lack of quorum at the general meeting.

The court applied a reasonableness standard and emphasized judicial deference to democratically governed housing cooperatives.

Finding the eviction decision reasonable and procedurally fair, the court granted the application, issued a writ of possession, and ordered payment of arrears and costs.