SCJ 2012

The accused pleaded guilty to three counts of possession of firearms while subject to a lifetime weapons prohibition order contrary to s. 117.01(1) of the Criminal Code.

The defence sought a conditional sentence based on rehabilitation efforts and compliance with bail conditions over several years.

The Crown argued that denunciation and deterrence required a custodial sentence given the deliberate breach of a lifetime prohibition order and the presence of stolen firearms and ammunition.

The court held that imposing a conditional sentence would constitute an error in principle because it would inadequately address denunciation and deterrence for breaches of weapons prohibition orders.

A custodial sentence was imposed together with probation and a forfeiture order.

A youth care worker brought a civil action against her employer and supervisor after being violently assaulted and sexually assaulted by a resident at a group home.

The defendants’ statement of defence was struck and they were noted in default, leaving a trial solely on damages.

The court permitted an amendment to increase the claimed damages because the defendants had notice and suffered no prejudice.

Applying principles governing non‑pecuniary damages for sexual assault and workplace negligence, the court awarded substantial general damages including aggravated damages, together with damages for past and future income loss supported by expert evidence.

The defendants were held jointly and severally liable for the total damages award.

The applicants sought declarations regarding the corporate governance of a non-share capital charitable corporation after two directors, who were also pastors, resigned and later attempted to revoke their resignations.

The court held that under the Canada Corporations Act and the corporation's by-laws, a director's resignation becomes effective when irrevocably sent to the corporation.

The court further held that a director cannot unilaterally revoke a resignation once it has been received and accepted by the board.

Consequently, the respondents were no longer directors and had no authority to act on behalf of the corporation.

The moving party brought a motion to vary an order requiring payment of $800 per month in spousal support to the former spouse, alleging an inability to pay due to reduced business income and financial shortfall.

The responding party disputed the alleged decline in income and pointed to employment income, corporate income, and rental income.

The court held that the moving party failed to establish a material change in circumstances since the original order.

Evidence showed the moving party’s income had actually increased due to teaching income and anticipated rental income.

The court emphasized that a motion to vary cannot be used as a substitute for an appeal and dismissed the motion.

The respondent to a family law proceeding, previously declared a vexatious litigant subject to an order prohibiting further proceedings without leave, brought a motion seeking leave to continue or commence numerous listed proceedings across several courts.

The court reviewed the extensive procedural history, including repeated non‑compliance with prior costs orders and multiple attempts to relitigate issues already determined in consolidated family proceedings.

The moving party had also appealed the vexatious litigant order to the Court of Appeal.

The court held that, pending the appeal, the moving party should not be granted leave to pursue the additional proceedings listed in the notice of motion.

Leave was refused and costs were awarded to the responding party.

The applicant brought a motion for summary judgment seeking retroactive child support for a specified period and contribution toward special and extraordinary expenses under s.7 of the Child Support Guidelines.

The motion arose in the context of a lengthy post‑separation dispute involving shifting parenting arrangements and prior court orders addressing custody and shared parenting.

The court found there was conflicting evidence regarding the parties’ financial obligations and the children’s residence during the relevant periods.

The issues, including competing retroactive child support claims, required credibility findings and factual determinations inappropriate for summary judgment.

The motion was dismissed and the matter was directed to proceed toward trial.

Following dismissal of the plaintiff’s action on a successful motion by the defendant, the court determined the appropriate costs award.

The plaintiff had commenced proceedings attempting to relitigate a dispute previously settled and had brought substantially the same claims shortly after consenting to dismissal of an earlier action.

The defendant sought full indemnity costs, arguing the action was frivolous and constituted an abuse of process.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and s.131 of the Courts of Justice Act, including the plaintiff’s conduct, the unnecessary litigation, and the plaintiff’s financial circumstances.

The court awarded partial indemnity costs payable forthwith.

The plaintiff sought an interim injunction and preservation order against former employees who started a competing realty tax business, alleging breach of non-competition and non-solicitation agreements.

The court found a serious issue to be tried but concluded the plaintiff failed to demonstrate irreparable harm, as any lost sales or market share could be compensated in damages.

The balance of convenience favoured the defendants.

The court dismissed the motion for an interim injunction and forensic inspection but ordered the defendants to preserve any documents and devices belonging to the plaintiff.

Following multiple prior orders in a corporate dispute between business partners, the successful party sought costs on a full indemnity basis due to the opposing party’s repeated non‑compliance with court orders and obstructive conduct.

The court reviewed the governing factors under Rule 57.01 of the Rules of Civil Procedure and the jurisprudence on when full indemnity costs are appropriate.

Although the respondent’s conduct caused delay and required numerous court appearances, the court found it did not rise to the egregious level required for full indemnity costs such as fraud or deception of the court.

Considering the respondent’s non‑compliance and litigation conduct, the court awarded costs on a substantial indemnity basis.

Costs were fixed at $20,431.14.

Following the dismissal of the plaintiff's action, the court received written submissions on costs.

The successful defendants sought partial indemnity costs of approximately $64,000 each.

The self-represented plaintiff, despite being unsuccessful, also sought costs and raised numerous objections to the defendants' claims.

The court rejected the plaintiff's claim for costs but reduced the defendants' claims to account for their unsuccessful summary judgment motion, a late pleading amendment, and unrecoverable items.

The court fixed costs at $35,000 payable by the plaintiff to each of the two active defendants.

The moving party sought leave under Rule 60.07(2) of the Rules of Civil Procedure to issue a writ of seizure and sale more than six years after judgment relating to a motor vehicle accident claim assigned to the Motor Vehicle Accident Claims Fund.

The responding party had filed a consumer proposal under the Bankruptcy and Insolvency Act and listed the Fund as an unsecured creditor.

The court held that the Bankruptcy and Insolvency Act binds the Crown and that s. 69.2(1) imposes a stay of proceedings preventing creditors from enforcing provable claims once a consumer proposal is filed.

The judgment debt was a provable claim in bankruptcy and therefore enforcement remedies, including issuing a writ of seizure and sale, were barred during the proposal process.

Leave to issue the writ was denied.

The plaintiff brought a motion to set aside a registrar’s order dismissing a medical malpractice action as abandoned under Rule 48.15(1) of the Rules of Civil Procedure and to extend the time for service of the originating process.

The court applied the Reid factors governing relief from registrar dismissal orders, considering the explanation for delay, inadvertence, promptness in bringing the motion, and prejudice to the defendant.

The delay arose primarily from severe personal tragedies affecting the plaintiff’s former counsel, which rendered him unable to practice and resulted in the plaintiff being unaware that her action had not been prosecuted.

The court found that the plaintiff acted promptly once aware of the issue and that the defendant had not demonstrated actual prejudice from the delay.

The registrar’s dismissal order was therefore set aside and late service of the notice of action and statement of claim was validated.

The accused were jointly tried for offences arising from a robbery at a mall cell phone store during which the victim was shot.

The central issue was whether the victim produced a firearm and accidentally shot himself during a struggle, as claimed by the accused, or whether one of the accused produced and discharged the weapon.

The court rejected the accused’s testimony as implausible and inconsistent with surveillance evidence and witness testimony, finding that one accused possessed and fired the handgun to facilitate the robbery while the other knowingly participated.

The principal offender was convicted of robbery while armed, aggravated assault, discharging a firearm with intent, and firearm possession offences.

The co‑accused was convicted of robbery while armed and firearm possession offences but acquitted of the aggravated assault and firearm discharge counts due to reasonable doubt about foreseeability.

The defendant brought a motion to stay the Ontario action on the basis that the court lacked jurisdiction and that Quebec was the more appropriate forum.

The court applied the presumptive connecting factors from Club Resorts Ltd. v. Van Breda and concluded that the defendant carried on business in Ontario through its involvement in developing and commercializing a titanium dioxide extraction process and its ownership interest in the patent-holding company.

The court therefore found a real and substantial connection sufficient to ground jurisdiction.

On the forum non conveniens analysis, although certain factors slightly favoured Quebec, most were neutral and the defendant failed to demonstrate that Quebec was clearly the more appropriate forum.

The plaintiff’s chosen forum was not displaced and the stay was refused.

In a matrimonial proceeding involving ownership of a cottage property, the moving parties sought to add Legal Aid Ontario as a party because it had registered liens against the property to secure legal aid services provided to one spouse.

The court considered the test under Rule 7(5) of the Family Law Rules for adding a party.

It held that a person will generally only be added if they are a necessary party and if an order can be made for or against them, although the court retains a narrow discretion to add parties without a legal interest in exceptional circumstances.

Because no order could be made for or against Legal Aid Ontario, it had no involvement in the underlying matrimonial dispute, and no unusual or egregious circumstances existed, the court declined to add it as a party.

The applicants moved for leave to amend their pleadings to withdraw long-standing admissions that the respondent held a right of way across their land.

The admissions had been made in three related proceedings spanning more than a decade and had formed the factual basis of a prior judgment and an endorsement by the Court of Appeal.

The applicants argued a title search revealed the right of way may not have been validly transferred in the chain of title.

Applying the test for withdrawing admissions, the court held the applicants failed to show the admissions were inadvertent and found that allowing withdrawal would cause significant prejudice because earlier court decisions relied on the admitted fact.

Public policy and finality of litigation also weighed against permitting the amendment.

A spouse without legal title sought an interlocutory injunction restraining mortgagees from exercising power of sale over Muskoka properties alleged to constitute a matrimonial home.

The mortgagees relied on a statutory declaration by the titled spouse asserting that another property had been designated as the matrimonial home under s. 21(3)(d) of the Family Law Act.

The court found strong evidence capable of belief that the lender had actual or constructive notice that the property was used as a family cottage and therefore a matrimonial home.

The presumption in s. 21(3)(d) could not protect a lender who knew facts inconsistent with the declaration.

Applying the three-part injunctive test, the court found a serious issue to be tried, irreparable harm to the spouse, and a balance of convenience favouring preservation of the property pending trial.

An insurer moved under Rule 51.05 of the Rules of Civil Procedure for leave to withdraw admissions in its statement of defence that the plaintiff was entitled to statutory accident benefits.

After discovery evidence suggested there may have been no collision between the insured vehicle and a school bus, the insurer sought to deny that a motor vehicle accident occurred and to dispute coverage under the Statutory Accident Benefits Schedule.

Applying the three-part test for withdrawal of admissions, the court found that the proposed amendment raised a triable issue, that the insurer provided a reasonable explanation for the change in position based on new discovery evidence, and that any alleged prejudice to the plaintiff was speculative.

The court also rejected an argument that the insurer was estopped from denying entitlement due to past benefit payments.

Leave to amend the statement of defence was granted.

The appellant appealed an arbitrator’s ruling under ss. 45(2) and (3) of the Arbitration Act, 1991 after the arbitrator dismissed a motion seeking to strike or limit the respondent’s claims based on an exclusion clause in a distribution agreement.

The court held that the arbitrator’s decision was interlocutory rather than a final award because it did not dispose of the substantive dispute and instead required factual findings at a full hearing.

Under the Arbitration Act, interlocutory rulings in arbitration are not subject to appeal.

The court further found no error in the arbitrator’s conclusion that interpretation of the contractual limitation clause required consideration of the factual matrix.

The appeal and challenge to the arbitrator’s costs award were dismissed.

Following a reference under the Construction Lien Act regarding emergency flood remediation services, the court addressed outstanding issues of costs and interest.

The plaintiff had claimed a construction lien and additional storage charges, but the lien was found to be out of time and most of the monetary claims failed, with only a small portion of the services claim succeeding.

Applying s. 86 of the Construction Lien Act and proportionality principles, the court held that costs could not exceed what would have been incurred had the matter proceeded in Small Claims Court.

The court therefore capped costs at the Small Claims Court maximum and disallowed many claimed disbursements.

The claim for contractual pre‑judgment interest was rejected, and only post‑judgment interest at the court rate was awarded.