SCJ 2012

In a child protection status review under the Child and Family Services Act, the Society moved for summary judgment seeking Crown wardship without access.

The child had been in care since birth and the parent had a longstanding history of child protection involvement, unstable housing, inconsistent access attendance, and exposure to domestic violence and substance-related concerns.

The responding parent filed no materials and made no substantive submissions to demonstrate a genuine issue for trial under Rule 16 of the Family Law Rules.

The court held that the evidentiary record established a prima facie case that the child remained in need of protection and that no less intrusive alternatives were available.

Summary judgment was granted making the child a Crown ward without access in order to permit permanency planning through adoption.

An estate trustee sought directions regarding interpretation of a will that created conditional gifts of $150,000 to each of the testator’s three sons, contingent upon purchasing real property secured by a mortgage to the estate.

The will also established a residue trust for future grandchildren to be divided ten years after death.

The court considered principles of will interpretation and extrinsic evidence regarding the testator’s intentions as a real estate investor.

The court held that each son must own real property for a cumulative period of ten years for the gift to vest, beginning when the property is acquired, and that the estate must ensure adequate security through mortgage equity before advancing funds.

The court further ruled on related issues concerning repayment on sale, mortgage priority, trust duration, and residual beneficiaries.

The accused brought a pre-trial motion to quash an authorization to intercept private communications and related warrants, alleging that the police misled the issuing judge and thereby violated s. 8 of the Charter.

The defence argued that the supporting affidavit omitted numerous forensic reports and inaccurately stated that a blood sample on a saw was too small for analysis, amounting to fraudulent misrepresentation and warranting exclusion of derivative evidence under s. 24(2).

The court found that the affidavit contained an error but held it did not undermine the validity of the authorization.

Even after removing the inaccurate statement, the remaining investigative information provided sufficient grounds for the issuing judge to grant the authorization.

The motion to quash the authorization and related warrants was dismissed.

The plaintiff brought a motion to amend its statement of claim to substitute the individual carrying on business under certain style names as the proper plaintiff instead of the corporate plaintiff.

The defendants opposed the amendment, arguing that it constituted the addition of a new party after the limitation period had expired and that the matter had already been set down for trial.

The court held that the amendment was properly characterized as the correction of a misnomer under s. 21(2) of the Limitations Act and not the addition of a new party.

As the defendants knew the identity of the contracting party and suffered no prejudice that could not be remedied, the amendment was permitted.

The motion was granted, but the plaintiff was denied costs due to delay and ordered to pay costs to the defendants.

The plaintiffs brought a motion to extend the date by which their defamation action must be set down for trial, after failing to meet a consent timetable order due to an overlooked mandatory mediation requirement.

The court treated the motion similarly to one setting aside a registrar's dismissal order and applied the Reid factors.

Finding that the delay was adequately explained, the failure to set down was inadvertent, the motion was brought promptly, and the defendants suffered no actual prejudice, the Master granted the extension.

No costs were awarded as the plaintiffs required an indulgence from the court.

The defendant municipality brought a motion to dismiss the plaintiff’s civil action for failure to comply with multiple interlocutory cost orders.

The plaintiff had failed for several years to pay costs awarded in prior proceedings, including $10,000 ordered following dismissal of an appeal and additional costs awarded on subsequent motions and appeals.

The court considered Rule 60.12 and subrule 57.03(2) of the Rules of Civil Procedure, which authorize dismissal or other sanctions where a party fails to comply with interlocutory orders, including orders for payment of costs.

Finding that the plaintiff persistently refused to comply with cost orders, repeatedly delayed the action, and demonstrated no intention of satisfying the outstanding obligations, the court concluded that dismissal was the appropriate sanction.

The action was dismissed with costs.

The appellant appealed his conviction for driving with over 80 milligrams of alcohol, arguing that his Charter rights under ss. 8, 9, and 10(b) were breached during a traffic stop.

The trial judge had found the evidence of the appellant and the arresting officer equally credible, concluding the appellant failed to meet his burden of proving a Charter breach on a balance of probabilities.

The Superior Court of Justice dismissed the appeal, finding that the trial judge was entitled to find both witnesses equally credible, provided sufficient reasons for her decision, and made findings of fact supported by the evidence.

The plaintiff brought a motion relating to outstanding undertakings and refusals arising from extensive examinations for discovery of a defendant.

The court reviewed numerous undertakings and determined that several had been satisfactorily answered, while others required reproduction of documents in an organized format to properly address the undertakings.

The court also ordered disclosure of certain financial documents relevant to claims for accounting and disgorgement.

However, the court declined to compel any further examinations, finding that five days of discovery and thousands of questions already rendered the process disproportionate under the Rules of Civil Procedure.

The plaintiffs, former students of a post-graduate international business program, brought a class action against the defendant college.

The college's course calendar represented that the program provided the opportunity to complete three industry designations in addition to a graduate certificate.

The students discovered that the college had no agreements with the industry associations and could not confer the designations.

The court found that the college was negligent in making the misrepresentation and breached the Consumer Protection Act, 2002, as the students were 'consumers' under the Act.

The plaintiffs were entitled to monetary compensation, with damages to be determined in a subsequent phase.

The accused applied under ss. 462.34(4) and 462.341 of the Criminal Code for the release of restrained funds derived from the sale of a matrimonial home in order to pay legal expenses.

The court considered whether the applicant established that he had no other assets or means available to meet reasonable legal expenses and that no other person appeared lawfully entitled to the funds.

The court found the applicant’s financial disclosure incomplete and unreliable, noting unexplained assets and prior access to substantial funds.

Evidence also supported the claim of an alleged fraud victim who appeared to have a lawful entitlement to the restrained property.

The statutory prerequisites for release were therefore not met.

The applicant employer brought an application to rectify a 2005 amendment to its hourly employee pension plan.

A drafting error had inadvertently increased early retirement benefits for terminated employees, contrary to the employer's intention to merely close the defined benefit component to new hires.

The court exercised its equitable jurisdiction to rectify the unilateral trust document, finding clear evidence that the amendment was a mistake and did not reflect the employer's true intention.

The plaintiffs sought interlocutory injunctive relief restraining a former shareholder, director, and employee from using confidential information and soliciting customers following the sale of his shares in a closely held corporation.

The evidence indicated the departing fiduciary took electronic files containing proprietary customer information and immediately solicited key customers after the share sale.

The court found a strong prima facie case of breach of fiduciary duty and unfair competition, notwithstanding the absence of a non‑competition agreement.

Given the likelihood of irreparable harm through loss of goodwill and customer relationships, and the balance of convenience favouring the plaintiffs, injunctive relief was granted.

The injunction restrained the former fiduciary and his corporation from using confidential information and soliciting customers for a limited period pending trial.

The defendant brought a motion seeking various relief including dismissal for delay, amendment of pleadings, issuance of a third party claim, a litigation timetable, and case management.

Following mixed success on the underlying motion, the court addressed costs.

The court found that the plaintiffs’ lawyer engaged in improper litigation conduct by misleading opposing counsel about payment of a prior costs order while secretly arranging for the funds to be garnished by a government creditor.

The court characterized the conduct as sharp practice contrary to professional obligations and held that it caused unnecessary motion costs.

Costs were awarded partly against the plaintiff corporation and partly personally against the plaintiffs’ lawyer under Rule 57.07.

The appellant appealed convictions 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 and in finding that breath samples were taken “as soon as practicable” under s. 258(1)(c)(ii) of the Criminal Code.

The Superior Court of Justice reviewed the allocation of delay, including institutional delay, defence-caused adjournments, and delays arising from disclosure issues related to a police officer’s Drug Recognition Expert training.

The court concluded the trial judge did not err in characterizing the delay or in determining that the overall delay fell within the Morin guidelines.

The court also held that the police acted reasonably in obtaining breath samples approximately 1 hour and 37 minutes after arrest and that the trial judge properly inferred that the delay was explained by operational circumstances at the police station.

The appeal was dismissed.

The parties separated in March 2001 and divorced in 2006.

The respondent sought an equalization of net family property, claiming a 50 percent interest in two properties and arguing he received less than his share from the sale of the matrimonial home.

The court found the respondent had no interest in the second property, which was purchased after separation.

The equalization claim was dismissed because the respondent failed to provide reliable evidence or financial disclosure regarding his own net family property at the date of marriage and valuation date, making it impossible to determine if he received less than his entitlement.

During a criminal trial for drug trafficking offences involving cocaine and cannabis, the Crown sought to qualify an RCMP officer as an expert to provide opinion evidence regarding drug trafficking indicators, drug jargon, and related matters.

The defence objected, arguing the proposed evidence lacked relevance and necessity and that the witness lacked independence due to police bias.

Applying the test for expert evidence in R. v. Mohan, the court held that some proposed opinions were relevant and necessary to assist the jury, including opinions regarding the level of trafficking indicated by seized items and the use of drug-related jargon.

However, opinions concerning cocaine purity, the role of weapons in trafficking, and evidence relating to hashish or trafficking hierarchies were excluded as irrelevant or unnecessary.

The officer was qualified to give expert opinion evidence only on limited issues.

The appellant appealed his conviction and sentence for assault under s. 266 of the Criminal Code following a domestic altercation.

He argued that the trial judge misapprehended material evidence and failed to properly consider the defence of consent arising from the complainant's conduct during the confrontation.

The appeal court held that the trial judge mischaracterized key aspects of the appellant’s testimony, including whether he was certain his hands did not slide to the complainant’s throat and whether he had instructed the complainant to leave the room.

These errors materially affected the credibility analysis and the application of the W.(D.) framework.

Because the misapprehension of evidence was substantive and central to the conviction, the court found a miscarriage of justice and ordered a new trial.

A homeowner sued a contractor for damages after basement water problems persisted following the installation of new weeping tile.

The court considered conflicting expert evidence regarding whether the tile had been installed in compliance with the Ontario Building Code.

The court found that the contractor failed to install the weeping tile below the basement floor in the area of a later addition, resulting in improper drainage and continued water infiltration.

Although other potential causes of leakage existed, the contractor remained responsible for the cost of correcting the defective installation.

The plaintiff was awarded partial damages for the cost of reinstalling weeping tile around the affected portion of the house.

In the context of CCAA proceedings for Priszm, the landlord (Scott's REIT) brought a motion claiming entitlement to the proceeds from the sale and assignment of various restaurant leases to third-party purchasers.

Scott's argued it had a proprietary interest in the lease consideration and that the secured creditor (Prudential) had subordinated its security interest to Scott's claim.

The court dismissed the motion, finding that the lease provisions created only an unsecured contractual obligation, not a proprietary interest.

Furthermore, the court held that the leasehold charge consents did not contain clear and unequivocal language demonstrating an intention by Prudential to subordinate its first-priority security interest to Scott's unsecured claim.

The moving party, a local resident, brought a motion for leave to intervene as an added party or friend of the court in an application concerning the sale of a charitable property operated as a tennis and aquatic club.

The main parties to the application had reached a settlement to sell the property and divide the proceeds among charitable purposes.

The court dismissed the motion to intervene, finding that while the moving party had an interest in the subject matter, her intervention would not significantly enhance the court's ability to determine the issues, as her position mirrored that of the applicants and the Public Guardian and Trustee was already involved.

Furthermore, granting intervenor status would cause undue delay and prejudice to the parties who had already reached a settlement.