SCJ 2012

The responding party brought a motion seeking temporary child support, contribution to special expenses under s. 7 of the Ontario Child Support Guidelines, and temporary spousal support.

The court considered whether income should be imputed to the payor under s. 19(1) of the Guidelines given evidence of assets, inconsistent financial disclosure, and claimed business downturn.

The court declined to impute the higher income sought but imputed income of $72,000 based on the payor’s budget, asset holdings, and limited financial disclosure.

Temporary child support, spousal support, and contribution to special expenses were ordered retroactive to October 1, 2012.

During a Trial Management Conference in a construction lien dispute, sub‑trade lien claimants raised concerns that the municipality’s defence and counterclaim lacked sufficient particulars regarding alleged deficiencies and delays attributed to various sub‑trades.

The court considered the purpose of particulars in civil proceedings, namely to define issues, prevent surprise, and facilitate trial preparation.

Although the municipality argued that extensive disclosure had been provided during discovery, the court held that the information must be presented coherently and with sufficient specificity.

The municipality was ordered to provide written particulars detailing the alleged deficiencies and delays, even where costs had not yet been incurred.

The defendant, Impark, brought a motion to enforce an interim settlement agreement regarding the remittance of parking lot revenues by the plaintiff, Precise.

The dispute centered on whether the settlement agreement's fee deduction arrangement applied retroactively to the months of September and October 2012.

The court applied principles of contractual interpretation, considering the factual matrix and the specific language used in the agreement.

The court concluded that the future-looking language and the reference to Precise altering its 'current practice' indicated the parties intended the arrangement to apply prospectively from November onwards.

The motion was dismissed.

In related Bre-X litigation, the trustee of the bankrupt estate sought to discontinue a derivative action against certain defendants.

A plaintiff in a parallel class action opposed the discontinuance and brought a motion seeking to examine non-parties as witnesses under rule 39.03 of the Rules of Civil Procedure and to compel cooperation in appraising foreign property potentially relevant to recovery.

The court held that a party does not require leave to serve a summons to examine a witness for a pending motion but must comply with procedural requirements for service.

Because no summons had yet been served and formal notice issues remained, the motion was adjourned to permit proper service.

The request to compel cooperation in obtaining an appraisal of the Cayman Islands property was dismissed without prejudice due to jurisdictional concerns and the non-party status of the property owner.

The parties separated after a 25-year marriage.

The respondent obtained a divorce in Greece, while the applicant commenced proceedings in Ontario for property division and spousal support.

Applying Greek law to the property division, the court determined the incremental increase in each party's assets and ordered the respondent to pay the applicant an equalization payment of $63,284.18, plus $50,000 for her share of their jointly owned yacht.

The court dismissed the applicant's claim for spousal support, finding that under the Divorce Act, an Ontario court lacks jurisdiction to grant corollary relief once a foreign divorce has been granted, and alternatively, that there was no entitlement to support.

The applicant father brought a motion for increased interim parenting time and an order restraining the respondent mother from making major decisions regarding their child without his consent.

The respondent mother sought an increase in temporary child support based on the father's new employment in New York.

The court granted the father's request for increased parenting time, noting the importance of overnight visits for young children to foster attachment.

The court also enjoined the mother from making major decisions without the father's written consent, distinguishing the case from situations where parents cannot communicate.

The mother's request for increased child support was dismissed as the father's potential bonus had not yet been received.

The judgment creditor sought the appointment of a receiver in aid of execution over the debtor’s assets after the debtor failed to pay a substantial judgment arising from a settlement agreement.

The court found extensive evidence that the debtor had structured his financial affairs through closely‑held corporations and family arrangements to obstruct enforcement, including placing mortgages on assets, refusing to produce financial records, and channeling benefits through corporations while claiming little personal income.

The court also found troubling evidence suggesting that the debtor’s spouse participated in attempts to create secured claims and judgments designed to defeat other creditors.

Given the debtor’s obstruction of examinations, failure to comply with garnishment obligations, and complex corporate arrangements shielding assets, the court held that ordinary enforcement mechanisms would be ineffective.

A receiver in aid of execution was therefore appointed with investigative powers to examine the debtor’s interests and financial dealings.

The defendant brought a motion under Rule 19.08 of the Rules of Civil Procedure to set aside a default judgment obtained by the plaintiff bank.

The court considered whether the motion was brought promptly, whether the default had a plausible explanation, and whether the defendant demonstrated an arguable defence on the merits.

The defendant admitted service but explained her failure to respond by reference to involvement in other litigation, which the court held did not constitute a reasonable explanation.

The court further found that the proposed defences relating to alleged loan agreement defaults, account transfers, and excessive costs did not raise arguable issues.

Concluding that the interests of justice did not favour relief, the court dismissed the motion.

The defendants brought a motion to strike a self-represented plaintiff’s claim arising from repeated unsuccessful attempts to obtain a family medicine residency position.

The plaintiff alleged negligence, bad faith, unequal treatment, and Charter violations after being denied interviews and admission to residency programs.

The court held the action was an attempt to re‑litigate issues previously determined in multiple proceedings and was barred by cause of action estoppel and abuse of process.

The pleading disclosed no reasonable cause of action and failed to establish viable claims in negligence, contract, or discrimination.

The court also held that academic admissions decisions fall within universities’ broad discretion and are reviewable, if at all, by judicial review rather than civil action.

The respondent brought a motion to set aside a divorce order obtained at an uncontested hearing after she had been noted in default for failing to file an Answer.

The court applied the test for setting aside a default judgment by analogy to Rule 19.08 of the Rules of Civil Procedure, as permitted by the Family Law Rules.

The court found the motion was brought promptly, that the moving party provided a reasonable explanation for the default, and that there was an arguable case regarding the equalization of net family property and ongoing support issues.

Given the existence of unresolved financial issues, the court concluded that the matter should proceed with full participation of both parties.

The noting in default and the divorce order were set aside and the parties were directed to proceed to a settlement conference.

The plaintiff, who sued his former employer FedEx for constructive dismissal and retaliatory discharge, moved for leave to further amend his statement of claim or, alternatively, to file a Reply.

The proposed amendments sought to add allegations regarding FedEx's motives for allegedly ignoring his complaints about customs irregularities, claiming the company was distracted by more serious illegal activities.

The Master dismissed the motion, finding the proposed amendments were irrelevant to the core issues of the dismissal claim, pleaded evidence rather than material facts, and inappropriately raised new issues that could not be addressed by further defence pleadings.

The plaintiff, a senior vice president at a mezzanine financing company, was terminated without cause after nearly four years of employment.

He brought an action for wrongful dismissal, seeking damages in lieu of notice, including lost bonus income and stock options.

The court dismissed the claim for stock options as they were not exercisable at the date of termination, and rejected the employer's argument that the plaintiff failed to mitigate his damages.

The court calculated the plaintiff's lost bonus income using a historical average and, applying the Bardal factors, awarded a 12-month notice period, resulting in a net damages award of $272,047.86.

The defendant brought a motion to dismiss a civil action on the basis that the court lacked jurisdiction because the dispute arose under a collective agreement and therefore fell within the exclusive jurisdiction of labour arbitration.

The underlying action concerned an alleged overpayment of approximately $48,000 to a former employee resulting from administrative error despite an agreement that the employee’s salary would be “red-circled.” The court considered whether the essential character of the dispute arose from the interpretation, application, administration, or violation of the collective agreement.

Given that the employee was no longer employed, the memorandum governing the salary arrangement was not incorporated into the collective agreement, and the union itself took the position that the matter was not arbitrable, the court held the dispute did not fall within arbitral jurisdiction.

The motion to dismiss for lack of jurisdiction was therefore denied.

The representative plaintiff brought a motion to certify a proposed class action for settlement purposes under the Class Proceedings Act, 1992, and sought approval of a negotiated settlement and class counsel fees.

The claim arose from participation in a university-affiliated forgivable loan program that generated charitable donation tax receipts which were later disallowed by the Canada Revenue Agency, resulting in reassessments and interest liabilities for participants.

Approximately 200 individuals were proposed as class members.

The settlement provided refunds equal to 10% of amounts donated under the program and permitted class members to elect payment or donate the amount to the university.

The court found that the certification criteria under s. 5(1) of the Act were met and that the settlement was fair, reasonable, and in the best interests of the class, and approved class counsel fees.

In an uncontested divorce trial, the applicant sought divorce, child support, spousal support, section 7 expenses, equalization of net family property, continuation of extended health benefits, exclusive possession of the matrimonial home, and costs.

The court imputed income to the respondent of $100,000 due to failure to provide financial disclosure and set the applicant’s income at $28,000.

Child support and spousal support were ordered based on those incomes, and section 7 educational expenses were apportioned proportionally.

The court accepted the applicant’s amended net family property statement, resulting in an equalization payment owed by the applicant to the respondent.

Extended health benefits were ordered to continue through the respondent’s employment and costs were awarded to the applicant.

The appellant was arrested for possession of oxycodone for the purpose of trafficking, and his truck was seized as offence-related property.

The assignee of the conditional sales contract for the truck, Ally Credit Canada Limited, applied for its return under s. 490 of the Criminal Code.

On the application date, the appellant's counsel's assistant requested an adjournment, which the application judge refused, ordering the truck returned to Ally.

The appellant appealed the order.

The Summary Conviction Appeal Court dismissed the appeal, finding that the application judge did not err in refusing the adjournment and that Ally had established it was entitled to possession of the truck due to the appellant's breach of the contract.

The moving defendants sought partial summary judgment dismissing the landlord’s claim for prospective rent damages following an alleged repudiation of a commercial lease.

The motion raised legal questions concerning the fourth remedy identified in Highway Properties Ltd. v. Kelly, Douglas and Co., including whether notice of a claim for prospective damages must be provided and whether the issuance of a statement of claim can satisfy that notice requirement.

The court found that the law on these issues was unclear and therefore constituted a genuine issue of law.

Pursuant to Rule 20.04(4) of the Rules of Civil Procedure, a master must adjourn such motions to a judge where the issue may be determined on summary judgment.

The motion was therefore adjourned to a judge, with limited costs awarded to the responding party for the adjournment issue.

A municipality applied for court confirmation of emergency building orders relating to a failed residential septic system and sought recovery of remediation costs to be added to the property tax roll under the Building Code Act and Municipal Act.

The court held it lacked jurisdiction to confirm the municipality’s orders because statutory service and procedural requirements under the Building Code Act had not been complied with.

The court nevertheless found the septic system had failed and that the municipality reasonably incurred pumping costs to mitigate sewage seepage.

Fees related to an engineering report were not recoverable because the municipality unreasonably delayed disclosing the report to the homeowner.

Judgment was granted only for the septic pumping costs, which were ordered to be added to the property’s tax roll as a priority lien.

The plaintiff brought a motion seeking extensive discovery relief in a contractual dispute, including permission to create a mirror copy of the defendant’s computer hard drive, disclosure of detailed information regarding the defendant’s electronic document searches, enforcement of alleged undertakings, and permission to contact the defendant’s IT manager.

The court held that the Rules of Civil Procedure require production of relevant documents but do not require a party to disclose the methodology used to search for those documents.

The plaintiff’s request for a mirror copy of the defendant’s hard drive was rejected as speculative and invasive, absent evidence that relevant undisclosed documents existed.

The court also found that the undertakings relied upon by the plaintiff had either been fulfilled or had not been given as alleged, and that contacting the defendant’s IT manager directly would breach the Rules of Professional Conduct because he was involved in the conduct of the litigation.

In a child protection proceeding under the Child and Family Services Act, the Society brought a motion for summary judgment seeking a finding that the child was in need of protection and an order for Society wardship for six months.

The evidence demonstrated significant parent-child conflict, the child’s refusal to have contact with the mother, and prior sexual abuse occurring after the mother allowed an adult male to reside in the home and share a bedroom with the child.

The court found there was no genuine issue requiring a trial, as the material facts were largely undisputed and the mother failed to rebut the Society’s prima facie case.

The court concluded that the child was in need of protection under ss. 37(2)(c), (f), and (g) of the CFSA and that continued Society care best served the child’s interests.

Summary judgment was granted and Society wardship ordered for six months.