SCJ 2012

The moving party sought leave to appeal a costs order denying him costs after he was awarded $12,000 in a wrongful dismissal trial.

The trial judge had denied costs under Rule 57.05(1) because the recovery was within the monetary jurisdiction of the Small Claims Court, which had increased to $25,000 after the action was commenced.

The court dismissed the motion for leave to appeal, finding no error in principle in the trial judge's exercise of discretion, noting the moving party's continuing obligation to assess the appropriate forum and the undue length of the trial caused by the unsuccessful pursuit of punitive damages.

The applicant father sought an order under s. 16 of the Divorce Act to have the parties' nine-year-old daughter transfer from a French-language school to an English-language private school with an extended French program.

The respondent mother opposed the transfer, arguing the child needed to maintain her French culture and stability.

The parties shared joint custody with an equal time-sharing schedule.

The court considered factors including the parents' ability to participate in education, the child's stability, cultural heritage, sibling relationships, holiday schedules, and academic performance.

The court found that transferring to the English-language school was in the child's best interests, as it would align her schedule with her sisters, provide smaller class sizes, and not significantly compromise her bilingualism or French culture.

The defendant moved to stay an Ontario action on the basis that Vermont was the more appropriate forum for a dispute arising from an allegedly unpaid US$3.5 million promissory note connected to hotel investments in Vermont and New Hampshire.

The court held that Ontario had jurisdiction simpliciter because the defendant resided in Ontario, triggering a presumptive connecting factor under the framework established in Club Resorts Ltd. v. Van Breda.

The defendant failed to rebut the presumption or demonstrate that Vermont was clearly the more appropriate forum under the doctrine of forum non conveniens.

The court emphasized that both parties resided in Ontario, the alleged default occurred in Ontario, the defendant’s assets were located in Ontario, and requiring the plaintiff to litigate in Vermont would create unfairness because he was barred from entering the United States.

The motion to stay the Ontario proceeding was dismissed.

Following summary judgment in a mortgage debt enforcement action, the court determined the appropriate costs award.

The successful lender sought substantial indemnity costs of approximately $78,500 relying on contractual mortgage provisions and the defendant’s untenable defence.

The court held that although the lender had a strong argument for elevated costs, the legal resources deployed were disproportionate given the simplicity of the claim and the self‑represented defendant’s weak position.

Exercising its discretion despite the contractual clause, the court reduced the costs award as unreasonable and excessive.

A lump‑sum costs award of $38,000 inclusive was ordered.

The applicant spouse brought a motion for interim spousal support retroactive to July 1, 2011, along with related relief including maintenance of health benefits, life insurance, vehicle possession, and financial disclosure from corporations controlled by the respondent.

The principal dispute concerned the parties’ respective incomes and whether income should be imputed to the applicant for purposes of calculating interim support.

The court declined to impute additional income to the applicant and determined the respondent’s income based on an averaged assessment of fluctuating business income.

Applying the Spousal Support Advisory Guidelines and principles governing interim support motions, the court ordered interim support based on income‑sharing and the goal of approximating the marital standard of living.

Retroactive interim spousal support and additional disclosure orders were granted.

The appellant appealed a conviction for operating a motor vehicle with blood alcohol exceeding 80 mg, arguing that breath samples were invalid because the breath technician failed to wait 17 minutes after an invalid sample and that the trial judge improperly relied on the statutory presumption of accuracy under s. 258(1)(g) of the Criminal Code when the Crown had also called the technician to testify viva voce.

The appeal court held that the trial judge did not err in accepting the technician’s evidence that a waiting period was unnecessary where the invalid sample resulted from inadequate blowing rather than residual mouth alcohol.

The court further held that the Crown was not barred from relying on the certificate and presumption of accuracy merely because the technician also testified.

In the absence of evidence to the contrary raising doubt about the reliability of the readings, the presumption applied.

The conviction for driving over 80 mg was therefore upheld.

The accused was charged with sexual assault, sexual interference, assault with a weapon, uttering threats, and administering a stupefying substance against a child complainant over a period in 2008–2009.

The prosecution relied primarily on the testimony of the child complainant, as no other witnesses observed the alleged offences.

The court found significant reliability and credibility concerns in the complainant’s evolving statements, communication difficulties, inconsistencies, and possible external influence.

The complainant’s mother, the only potential source of corroborative evidence, was also found to be a highly unreliable witness.

The court concluded that the evidence did not establish guilt beyond a reasonable doubt and entered acquittals on all counts.

Following the dismissal of a motion to certify a proposed class proceeding, the successful defendant sought partial indemnity costs.

The plaintiff argued that only nominal costs should be awarded because the litigation involved matters of public interest, addressed novel legal issues, and promoted access to justice.

The court held that public attention and bona fide motivations do not convert a case into public interest litigation warranting a departure from the ordinary rule that the successful party receives costs.

Finding the claimed amount reasonable and foreseeable under the Class Proceedings Act, 1992, the court awarded the defendant its full partial indemnity costs.

During a blended voir dire, the Crown sought a ruling that the accused’s videotaped police statement was voluntary, while the defence argued that it was obtained through inducement and in violation of the accused’s Charter rights under ss. 7 and 10(b).

The court found the police interview was conversational, non‑threatening, and did not involve any improper quid pro quo inducement capable of overbearing the accused’s will.

The accused had been repeatedly cautioned about his right to silence and had consulted duty counsel before the interview.

The court concluded the statement was voluntary and that no Charter breaches occurred.

Even if a breach had occurred, the statement would have been admitted under s. 24(2) after applying the Grant factors.

The accused were charged with possession of cocaine and methamphetamine for the purpose of trafficking after drugs were discovered beneath the driver’s seat of a vehicle.

The defence argued the Crown failed to prove the accused had knowledge or possession of the drugs, particularly with respect to the driver who was not directly linked to incriminating text messages.

The court considered circumstantial evidence including text messages arranging a drug transaction, the presence of six cell phones, the planned meeting location, and cash found in another vehicle connected to the transaction.

Applying the definition of possession under s. 4(3) of the Criminal Code as incorporated into the Controlled Drugs and Substances Act, the court concluded that both accused had knowledge of the drugs and intended to use them in a drug deal.

The Crown proved possession for the purpose of trafficking beyond a reasonable doubt.

Following the dismissal of a motion by a proposed intervenor seeking to be added as a party to an unrelated civil action, the court addressed costs.

The court held that the proposed intervenor had no connection to the underlying action and that the motion raised no issue of public interest or bona fide legal concern.

Exercising its discretion under s. 131 of the Courts of Justice Act, the court determined that costs should be awarded to the defendants despite their representation by Crown counsel.

While acknowledging the unsuccessful party’s limited financial means, the court emphasized that litigants, including incarcerated individuals, remain responsible for the costs consequences of misguided or unnecessary procedural steps.

Costs of $500 inclusive of disbursements and taxes were awarded.

The applicant wife moved for an order for $300,000 in interim costs, or alternatively, for the sale or encumbrance of the matrimonial home to fund ongoing family law litigation.

The court found that while res judicata did not bar the motion, the wife failed to meet her evidentiary burden.

She did not demonstrate that her claims regarding the marriage contract and family trust were meritorious, that the husband had the ability to pay the requested amount, or that the proposed expert fees and legal costs were necessary and reasonable.

The motion was dismissed with costs awarded to the husband.

In a real estate commission dispute, the plaintiff brokerage sought leave to amend its statement of claim to add an additional plaintiff and defendant and to plead rectification or rescission of an assignment of a listing agreement.

The defendant brought a Rule 21 motion to strike the claim on the basis that the assignment transferred all rights to commission to another brokerage and left the plaintiff without privity of contract.

The court held that amendments should generally be permitted unless clearly untenable or prejudicial and found the proposed amendments raised legally tenable issues regarding the enforceability of the assignment agreement, limitation periods, and potential duties owed by the proposed defendant brokerage.

The court also concluded that it was not plain and obvious that the limitation period had expired.

Leave to amend and add parties was granted and the motion to strike was dismissed.

The plaintiff suffered a fractured jaw and permanent nerve damage during the extraction of a wisdom tooth by the defendant oral surgeon.

The plaintiff brought a medical malpractice action alleging the surgery was unnecessary, lack of informed consent, and negligence in the extraction procedure.

The court dismissed the action, finding that the extraction was necessary, the defendant adequately disclosed the risks, and the defendant met the standard of care during the surgery.

The court preferred the evidence of the defendant's expert and found that a jaw fracture can occur even with the use of minimal force.

A sales representative sued for commission arising from an exceptionally large pandemic-related order placed within his exclusive territory.

The employer argued that an internal notice limiting commissions and a later bonus agreement reduced the representative’s entitlement.

The court held that the original commission agreement did not permit unilateral alteration by notice, but the representative subsequently signed a bonus agreement accepting a reduced payment.

Although the agreement was harsh and the bargaining power unequal, the evidence did not establish coercion, duress, or unconscionability sufficient to invalidate the contract.

The representative’s claim for full commission failed and the bonus agreement governed.

In a CCAA proceeding, a former CEO moved for an order compelling the debtor company to continue paying his monthly consulting fees under a 1996 agreement.

The debtor company brought a cross-motion declaring the obligations were pre-filing obligations stayed by the Initial Order, or alternatively, seeking to disclaim the agreement under s. 32 of the CCAA.

The court held that the consulting fees were in substance termination or retirement benefits, constituting unsecured pre-filing obligations that were stayed.

Alternatively, the court found that disclaiming the agreement was advantageous to the restructuring and would not cause significant financial hardship to the former CEO.

The plaintiffs sought damages following a violent assault that occurred outside a bar where the primary plaintiff was attacked by three individuals and sustained significant physical and psychological injuries.

Evidence established ongoing medical complications including concussion symptoms, psychological trauma, and employment loss.

Family members advanced claims under s. 61 of the Family Law Act for loss of care, guidance, and companionship arising from the injuries.

Following an assessment hearing on damages, the court awarded general and punitive damages to the injured plaintiff and derivative damages to family members.

Costs were also awarded on a partial indemnity basis.

In a homicide prosecution, the Crown sought to introduce several hearsay statements attributed to a deceased victim and to unidentified bystanders during a fight.

The court considered whether the statements fell within the res gestae exception to the hearsay rule and whether they satisfied reliability requirements under the principled approach articulated in R. v. Khelawon.

The court admitted a statement reported by a witness that the victim said “Budja stabbed me” and described others holding him down, finding it spontaneous and proximate to the startling event and not so unreliable as to warrant exclusion.

However, statements allegedly shouted by unidentified bystanders during the fight were ruled inadmissible for the truth of their contents because the declarants were unknown and reliability could not be assessed.

Those statements were admissible only for the non-hearsay purpose of demonstrating what may have been audible to the accused during the altercation.

The applicant father sought shared custody of his biological daughter, access to his step-daughter, and a determination of child support and equalization.

The court granted sole custody of both children to the respondent mother, maintaining the status quo for access.

The court imputed an income of $36,000 to the applicant due to his failure to disclose financial information.

The court ordered the applicant to pay child support for both children, apportioning the step-parent support obligation based on the biological father's higher income.

For equalization, the court discounted a $38,500 mortgage debt owed by the applicant to his father to nil, finding it was unlikely to ever be repaid, resulting in a $75,000 equalization payment owed to the respondent.

The plaintiffs brought a motion seeking leave to amend their statement of claim, approval of a discovery plan, and an order permitting inspection of condominium units for expert examination under the Rules of Civil Procedure.

The court adjourned the request to amend the statement of claim to permit further revisions.

Although Rule 29.1 obligates parties to agree upon a discovery plan without court intervention, the court imposed a discovery plan due to longstanding acrimony, extensive delay, and the absence of completed discoveries in an action commenced in 2001.

The court also granted the plaintiffs authority under Rule 32.01 to have an expert inspect specified condominium units for by-law contraventions and changes of use.

No costs were awarded due to both parties’ failure to cooperate in establishing a discovery plan.