SCJ 2012

In a certified class action alleging price maintenance and conspiracy by a franchisor and its designated food supplier, the parties brought reciprocal motions regarding refusals on examinations for discovery.

The court applied the principles of relevance, materiality, and proportionality, emphasizing that the action was certified based on a 'top-down' systemic approach rather than a 'bottom-up' product-by-product analysis.

The court largely upheld the refusals, finding many questions to be irrelevant, disproportionate, or inconsistent with the certified common issues, while ordering a small number of questions to be answered.

Following a civil trial in which the plaintiff obtained a modest damages award but failed on most claims, the parties made written submissions regarding costs.

The plaintiff sought costs in excess of $8,700, but the submissions and bills of costs were inconsistent and difficult to interpret.

The court considered its discretion under s. 131 of the Courts of Justice Act and the principles in Rule 57.01 of the Rules of Civil Procedure.

Taking into account the partial success at trial, the confusing documentation, and the circumstances of the parties, the court awarded reduced costs inclusive of disbursements and taxes.

The defendants moved to strike several corporate defendants from a wrongful dismissal action on the basis that the statement of claim disclosed no reasonable cause of action against them.

The plaintiff alleged she was employed by a group of related corporations operating collectively and that they wrongfully dismissed her and withheld personal property.

Applying the test for striking pleadings, the court held that the pleadings and incorporated documents sufficiently alleged a common employer relationship among the corporate defendants.

It was not plain and obvious that the claim against the additional defendants had no reasonable prospect of success.

The motion to strike was therefore dismissed.

The plaintiffs sued various provincial and municipal officials for negligent investigation, malfeasance in public office, and Charter breaches after the plaintiff Hilary Payne was charged with arson by negligence following a fire at a student rental property.

The defendants brought motions for summary judgment to dismiss the claims.

The court granted summary judgment dismissing the claims against one defendant (an engineer-in-training) and the Charter claims under ss. 8, 11(d), and 11(g).

However, the court dismissed the balance of the summary judgment motions, finding that the novel issues of duty of care, standard of care, causation, and statutory immunity required a full trial to resolve conflicting evidence and assess credibility.

The defendants brought summary judgment motions in a civil action while the plaintiffs brought a motion to amend the statement of claim.

During the hearing, the parties did not address whether the defendants intended their summary judgment motions to apply to the relief sought in any amended pleading should the amendment be granted.

The court directed counsel to arrange a brief appearance or provide written submissions addressing this procedural issue.

The endorsement addresses scheduling and clarification of the scope of the summary judgment motions.

At a status hearing pursuant to Rule 48, the plaintiff sought to explain a delay in prosecuting an action for out-of-country medical coverage by arguing he had not yet been pursued for the medical bill.

The court found this explanation insufficient, distinguishing the case from situations where liability depends on an underlying action.

Applying the test from Khan v. Sun Life, the court concluded the plaintiff failed to meet the onus of explaining the delay and addressing prejudice to the defendants.

The action was dismissed for delay.

Following a family law trial involving equalization of net family property, child support, and spousal support, the court considered the appropriate costs order.

The court reviewed the discretion under s.131(1) of the Courts of Justice Act and Rule 24 of the Family Law Rules, including factors such as the parties’ behaviour, settlement efforts, and the complexity of the issues.

Although the trial results were mixed and the respondent achieved greater success overall, the court found she had made insufficient settlement efforts.

The applicant had made several offers to settle but had also contributed to the length of the proceedings by understating his income.

The court concluded that fairness required each party to bear their own costs.

Following the dismissal of the plaintiffs' personal injury claims at a jury trial, the court assessed costs payable to the successful defendants.

The plaintiff argued impecuniosity, but the court found he failed to meet the evidentiary threshold to prove an inability to pay.

The court awarded the defendants partial indemnity costs up to the date of their reasonable settlement offer, and substantial indemnity costs thereafter, fixing total fees at $180,000 plus HST and disbursements at $51,554.18.

The appellant appealed his conviction for refusing to provide a roadside breath sample.

He argued that the trial judge erred in assessing police credibility, that he had a reasonable excuse for refusing the sample due to mistrust of the officer, and that his Charter rights under ss. 8 and 9 were violated by his detention and a strip search at the police station.

The Superior Court of Justice dismissed the appeal, finding no error in the credibility assessment, holding that his subjective mistrust was not an objectively reasonable excuse, and concluding that the detention and strip search were lawful and justified on safety grounds.

The defendant employer brought a motion under Rule 21.01(1)(b) to strike the plaintiff’s human rights claim from an amended statement of claim arising from his termination following public statements about the Syrian conflict.

The defendant argued the claim disclosed no reasonable cause of action because the alleged dismissal was based on political opinion, which is not a protected ground under the Ontario Human Rights Code.

The court held that, accepting the pleaded facts as true, it was not plain and obvious that the plaintiff’s views could not constitute a creed linked to protected grounds such as religion or place of origin.

Accordingly, the human rights claim was allowed to proceed.

However, certain paragraphs of the pleading were struck under Rule 25.11 as irrelevant and prejudicial to a fair trial.

The plaintiff brought a motion to set aside a Registrar's Dismissal Order that was issued over four years prior, due to his former counsel's chronic delay and failure to comply with court orders.

The court applied the Reid factors and found that while there was no prejudice to the defendant, the delay was inexcusable, not prompt, and counsel's conduct amounted to deliberate dereliction rather than mere inadvertence.

The motion was dismissed and the dismissal order was upheld, with costs awarded to the defendant.

Following a family law motion concerning children’s schooling and daycare arrangements, the largely successful party sought a costs award.

The court applied the principles governing costs under s. 131 of the Courts of Justice Act and Rule 24 of the Family Law Rules, including the relative success of the parties, the parties’ conduct, offers to settle, and their respective financial circumstances.

Although the moving party sought full indemnity costs exceeding $13,000, the court considered that an earlier offer to settle could have resolved the issues and that the responding party had limited means.

Balancing these considerations, the court awarded a reduced costs amount.

The plaintiffs brought a medical malpractice action following the death of Frederick Fowlow, who died from a detached vascular graft four days after undergoing an axillofemoral bypass surgery performed by the defendant surgeon.

The plaintiffs alleged the surgeon was negligent for using a graft that the manufacturer expressly warned was not recommended for that specific procedure.

The court found that the surgeon breached the standard of care by failing to read the manufacturer's instructions, using the non-recommended graft, and failing to inform the patient of the manufacturer's warning.

However, the action was dismissed because the plaintiffs failed to prove causation; there was insufficient evidence to establish that the detachment of the graft was caused by the type of graft used rather than being a known inherent risk of the procedure.

A father appealed a summary judgment order of the Ontario Court of Justice that made two children crown wards without access for the purpose of adoption in a child protection proceeding.

The father argued the motions judge misapplied the summary judgment test and that a triable issue existed regarding reunification.

The Superior Court held that the correct legal test had been applied and that the evidence overwhelmingly demonstrated no genuine issue requiring a trial.

The record showed long-standing concerns about the father’s judgment, instability, criminal conduct, and inability to provide safe parenting.

The appeal was dismissed and the crown wardship order remained in effect.

In a medical negligence action arising from an infant’s diagnosis and treatment of meningococcal meningitis, the court was asked to determine whether correspondence between counsel created a binding settlement dismissing the claim against a hospital and several nurses without costs.

The plaintiffs argued the settlement was conditional on undertakings from co-defendants not to allege negligence against the hospital parties.

The court held that the October 12, 2012 letter was implicitly contingent on that condition precedent but found that the co-defendants’ later correspondence satisfied the required undertaking.

Accordingly, a binding settlement had been reached between the plaintiffs and the hospital defendants.

Because one plaintiff was a minor, the settlement remained subject to court approval under Rule 7.08 of the Rules of Civil Procedure.

The applicant sought an order under the Hague Convention for the return of three children to Australia, alleging they were wrongfully retained in Ontario by the respondent.

The court examined habitual residence, consent, the one-year limitation under Article 12, and the grave risk of harm defence under Article 13(b).

It found that the family had a settled intention to reside in Australia and that the children's habitual residence remained Australia despite a temporary trip to Canada.

The respondent’s retention of the children after commencing custody proceedings in Ontario constituted wrongful detention, and no grave risk of harm was established.

The court ordered the children returned to Australia.

The defendant moved for security for costs under Rule 56.01(1)(a) and (e) of the Rules of Civil Procedure on the basis that the plaintiffs were non-residents of Ontario and allegedly lacked assets in the jurisdiction.

The court found the claim—alleging an improvident sale of property at auction for substantially less than a prior offer and appraised value—was not frivolous or vexatious.

Although the plaintiffs asserted that assets in Texas owned through a corporation were sufficient to satisfy any costs award, the court concluded that enforcement against those assets would not be straightforward because the property was owned by a non-resident corporation rather than the plaintiffs directly.

The court therefore ordered security for costs with conditions designed to preserve the corporate shares and underlying property as potential security for any future costs award.

The applicant tenants sought a mandatory order requiring the respondent landlord to consent to a change in the operating name of their restaurant.

The landlord had refused consent, citing alleged prior breaches of the lease regarding unauthorized renovations.

The court applied the principles for determining whether a landlord has unreasonably withheld consent, finding that the landlord's concerns about past breaches were being addressed in a separate proceeding and did not justify refusing a simple name change.

The court held the refusal was unreasonable and granted the application, permitting the name change.

The defendants brought a partial summary judgment motion arguing that claims seeking enforcement in Ontario of German “Notarized Debt Acknowledgments” were barred by limitation periods.

The court characterized the acknowledgments as foreign agreements creating unilateral covenants permitting enforcement without a prior German court judgment, rather than foreign judgments.

Applying conflict-of-laws principles, the court held that German limitation law governed.

Under the German Civil Code, enforceable documents such as the acknowledgments are subject to a 30‑year limitation period.

As a result, the claims were not statute‑barred and the motion was dismissed.

In matrimonial litigation involving equalization claims and control of a seasonal motel business, the husband sought authorization to complete an agreement of purchase and sale of the property to a third‑party purchaser, disclosure from the court‑appointed receiver, and temporary permission to travel outside Canada to attend his mother's funeral.

The court found the purchaser to be a bona fide arm’s‑length third party and held the negotiated purchase price reasonable given the business’s financial losses, receivership, and lack of competing offers.

The court granted disclosure from the receiver and permitted the husband to travel subject to security conditions due to support and costs arrears.

It further ordered the wife to remove the matrimonial home designation and authorized completion of the sale with proceeds to be paid into court pending resolution of the family claims.