SCJ 2012

Following the dismissal of the plaintiffs' oppression action after a hybrid trial, the successful defendants sought partial indemnity costs.

The plaintiffs argued that each party should bear its own costs because the defendants' unlawful conduct provoked the litigation.

The court rejected this argument, finding the defendants were entitled to costs.

The court also addressed the novel issue of whether costs for preparing affidavits and cross-examinations for pre-trial motions are recoverable when that evidence is subsequently used in a hybrid trial.

The court held that such costs are recoverable to the extent the work product was material to the trial issues, to encourage the use of hybrid trials.

The court fixed EnGlobe's costs at $200,232.47 and Busseri's costs at $116,321.99.

The defendants brought a motion challenging the jurisdiction of the Ontario Superior Court over a dispute concerning alleged misappropriation of assets from a family business operating in China.

The plaintiff alleged that corporate assets and funds had been transferred from China to Ontario and sought an accounting and compensation.

Applying the presumptive connecting factors framework from Club Resorts Ltd. v. Van Breda, the court held that the defendants’ domicile in Ontario established a prima facie basis for jurisdiction.

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

The court therefore held that Ontario had jurisdiction and adjourned the defendants’ summary judgment motion.

The plaintiff brought an urgent motion for an interlocutory injunction against the vendor of its IT business and several former employees who joined a newly established direct competitor.

The vendor had signed a non-competition and non-solicitation agreement upon the sale of the business.

The court found that the strong prima facie case standard applied to the restrictive covenant in the context of a sale of a business.

The court held that the non-competition clause was reasonable, except for a 10 km geographic extension which was severed using the blue-pencil doctrine.

The court granted the injunction against the vendor and the other defendants, finding they were impressed with fiduciary duties, and ordered the preservation and forensic review of electronic devices due to a strong prima facie case of misappropriation of confidential information.

In CCAA proceedings, the applicant sought an order declaring that shareholder class action claims alleging losses from the purchase or sale of its securities constituted “equity claims” under s. 2 of the Companies’ Creditors Arrangement Act.

The applicant also sought a determination that indemnity and contribution claims advanced by auditors and underwriters in relation to those shareholder actions were likewise equity claims.

The court held that shareholder claims alleging losses from trading in the company’s securities fall squarely within the statutory definition of equity claims and are subordinated to creditor claims.

Indemnification and contribution claims arising from those shareholder actions were also characterized as equity claims because their nature derives from the underlying shareholder claims.

However, the court left open the possibility that claims for defence costs might not necessarily be equity claims depending on the outcome of the underlying litigation.

The appellant challenged an assessment under the Land Transfer Tax Act that included the value of nursing home licences in the “value of consideration” for land transfer tax purposes following the purchase of a licensed nursing home.

The appellant argued that the licences were personal property and their assignment was not a conveyance of land.

The court held that the statutory definition of “value of consideration” includes monetary benefits connected to the conveyance of land.

Because the licences were integral to the purchase and operation of the nursing home and formed part of the overall transaction, their value was sufficiently connected to the conveyance.

The assessment including the licence value in the taxable consideration was therefore upheld.

The applicant sought to set aside a separation agreement following a 26‑year marriage, alleging non‑disclosure, misrepresentation of property value, unconscionability, and undue influence under s. 56(4) of the Family Law Act.

The court found both parties had similar information about the value of a jointly owned cottage and that there was no failure of financial disclosure, misrepresentation, or undue influence sufficient to invalidate the agreement.

The property division provisions were found to be broadly consistent with the statutory equalization regime and were upheld.

However, the spousal support provision providing $443 monthly for only 18 months failed to meet the objectives of the Divorce Act in a long‑term traditional marriage with ongoing caregiving responsibilities.

The court ordered ongoing spousal support consistent with the Spousal Support Advisory Guidelines and required life insurance security while support remained payable.

The accused applied for a review and modification of bail conditions contained in a recognizance dated August 19, 2011.

The accused faced multiple charges including sexual assault and breaches of a prior undertaking arising from his activities as a self-described healer.

Certain conditions restricting travel and contact were modified on consent.

The accused sought removal of a condition prohibiting him from practicing any form of healing, arguing it prevented him from earning a livelihood and assisting patients.

The court held that allowing the accused to continue such activities while facing related charges and following prior sexual assault convictions would undermine the public interest and administration of justice.

The requested modification to that condition was therefore denied.

The offender was found guilty of sexual assault and touching for a sexual purpose against his step-daughter, which occurred repeatedly over a four-year period when she was between nine and twelve years old.

The Crown sought a penitentiary sentence of four to five years, while the defence argued for a reformatory sentence of 15 to 18 months.

Emphasizing the profound breach of trust, the vulnerability of the child, and the devastating impact on the victim, the court applied established sentencing principles for adult sexual predators and sentenced the offender to four years in the penitentiary, along with ancillary orders including a 20-year SOIRA order and a 10-year prohibition under s. 161.

Following an assessment hearing relating to costs, the court considered written submissions from the parties regarding entitlement to costs of the assessment proceeding itself.

The moving party argued that costs should be awarded because participation in the hearing was necessary to quantify the costs previously awarded.

The responding party argued that the amounts claimed had been substantially reduced during the assessment.

The court concluded that success was divided and that it was appropriate for each party to bear its own costs.

The defendant brought a motion for summary judgment seeking dismissal of claims against him personally arising from a failed real estate purchase agreement where the purchaser was listed as “Beige Valley Developments” rather than the corporation “Beige Valley Developments Limited.” The plaintiff alleged personal liability and pleaded several torts including inducing breach of contract and unlawful interference with economic relations.

The court held that the pleadings and evidence could not sustain those two tort claims against the defendant because the alleged third party was his own corporation and there was no evidence of actionable wrongdoing against it.

However, factual disputes remained regarding personal liability for breach of contract, breach of duty, and misrepresentation.

Summary judgment was therefore granted only in part and the remaining issues were directed to trial.

The contractor brought an ex parte motion to substitute a letter of credit for posted cash security under the Construction Lien Act.

The proposed letter of credit was made subject to ICC Publication 590.

The Master dismissed the motion, finding that the inclusion of the ICC Publication 590 term made the letter of credit non-equivalent to the prescribed Financial Guarantee Bond (Form 23), as it raised the potential for the issuer to refuse payment and embroil the Accountant of the Superior Court in litigation.

The defendant physician appealed an order of a master compelling him to attend an examination under Rule 39.03(1) of the Rules of Civil Procedure in advance of a motion to strike the statement of claim in a medical negligence action.

The defendant argued that the motion to strike raised only legal issues concerning pleading sufficiency and therefore evidence was irrelevant.

The court held that once the defendant asserted in his factum that he was unable to respond to the allegations, his ability to respond became a relevant issue on the Rule 25.11 motion.

The plaintiffs therefore had a prima facie right to examine him on that issue under Rule 39.03(1).

The court found no error in the master’s reasoning and upheld both the examination order and the costs award.

The plaintiffs sought costs for several motions that were either settled or not heard, including an injunction motion, a motion to amend pleadings to add a fraudulent conveyance claim, and a motion for production of documents.

The underlying action involved a dispute over $500,000 in life insurance proceeds.

The court found that the plaintiffs were put to significant time and expense because the defendants initially refused to voluntarily freeze the insurance proceeds, which necessitated the injunction motion.

However, the court also found that the plaintiffs' motion for production of documents was premature as no discoveries had been held.

Balancing these factors and the principles of reasonableness and proportionality, the court awarded the plaintiffs $33,000 in costs.

The plaintiff brought a motion to set aside a Registrar’s order dismissing the action for delay and to extend and validate service of the statement of claim.

The court applied a contextual approach considering the Reid factors, including explanation for delay, inadvertence, motion delay, and prejudice.

The court found the plaintiff had provided an adequate explanation for the delay in attempting to locate and serve the defendant, and accepted counsel’s evidence that the failure to take additional steps earlier was inadvertent.

The court also found the defendant’s insurer had early notice of the claim, mitigating any presumption of prejudice arising from the expiry of the limitation period.

The dismissal order was set aside and the time for service extended, with service validated.

The plaintiff brought a motion under Rule 48.11(b) of the Rules of Civil Procedure to restore an action to the trial list after it had been struck for failure to submit a trial certification form.

The court applied the test governing restoration following administrative dismissal for delay, including whether the delay was intentional, whether it was inordinate and inexcusable, and whether the defendants suffered prejudice.

Although the delay of approximately 31 months was found to be inordinate and not reasonably explained, the plaintiff successfully rebutted the presumption of prejudice and the defendants failed to establish actual prejudice affecting the fairness of a trial.

The court held that the absence of certain radiological studies did not demonstrate a substantial risk that a fair trial was no longer possible.

The action was therefore restored to the trial list, but no costs were awarded.

A state-owned corporation moved to set aside an Ontario order recognizing and enforcing an international arbitral award against a foreign state and alternatively sought a stay of related execution proceedings on forum non conveniens grounds.

The moving party argued it was a person affected by the judgment because enforcement steps sought to seize shares it claimed to own.

The court held that a non-party claiming a proprietary interest in assets subject to execution does not have standing under Rule 38.11 to attack the underlying judgment against the debtor state.

The court further held that the moving party failed to establish that a foreign jurisdiction was clearly a more appropriate forum to determine ownership of shares issued by an Ontario-headquartered corporation for purposes of enforcing the judgment.

Both motions were dismissed.

The plaintiffs brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing their action for delay under Rule 48.14.

The underlying action arose from a pedestrian–motor vehicle accident and included tort claims against the driver and statutory accident benefits claims involving the Motor Vehicle Accident Claims Fund.

Applying the contextual test and the four factors from Reid v. Dow Corning Corp., the court examined the explanation for delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendants.

Although the motion was not brought promptly, the court found that the delay was largely attributable to counsel’s inadvertence and unusual circumstances including illness, staff turnover, and an office flood, and that the defendants had not demonstrated actual prejudice.

The registrar’s dismissal order was therefore set aside.

The father brought a motion to change seeking unsupervised access and a finding of contempt against the mother for allegedly failing to facilitate supervised access ordered on an interim basis.

The court held that contempt was not established because the evidentiary record did not demonstrate deliberate and wilful disobedience of the order beyond a reasonable doubt.

The court emphasized that custodial parents have a positive obligation to encourage access and criticized conduct that left the burden of persuading the child to attend visits on the supervisor.

The mother’s motion to vary the order to make the child’s attendance entirely voluntary was dismissed, while the existing order requiring supervised visits remained in force.

The court also authorized electronic communication between the father and the children subject to preservation and disclosure of the messages to the access supervisor.

The offender pleaded guilty to three counts of failing to provide the necessaries of life to her young children after feeding them a highly restricted raw vegan diet that resulted in severe malnutrition, osteopenia, and rickets.

The court considered aggravating factors including the vulnerability of the children, the breach of parental trust, and the life‑threatening nature of the harm.

Mitigating factors included the offender’s lack of prior criminal record, guilty plea, participation in parenting and nutrition programs, and psychological evidence indicating low risk of reoffending.

Applying the sentencing objectives of denunciation and deterrence for offences involving child victims under the Criminal Code, the court determined that a custodial sentence was warranted but could be served conditionally in the community.

A six‑month conditional sentence with strict conditions and three years’ probation was imposed.

A housing co‑operative sought an order terminating a member’s occupancy and membership due to persistent arrears and repeated failures to pay housing charges in full and on time.

The member did not dispute the arrears or the procedural steps taken by the co‑operative’s board of directors, which included notice, an opportunity to make submissions, and information about the appeal process.

The court found the termination process complied with principles of natural and procedural justice and that the member had failed to appeal the eviction decision internally.

Despite acknowledging the hardship the order would cause, the court held that the co‑operative was entitled to enforce its by‑laws and operate in a financially responsible manner.

The court granted an order terminating membership and occupancy, issued a writ of possession, and ordered payment of arrears and ongoing daily charges until vacant possession.