SCJ 2012

The applicant sought an order under sections 4 and 11 of the Solicitors Act to refer a solicitor’s account for assessment more than twelve months after it had been rendered and paid.

The applicant argued that he only later became aware of the ability to challenge the account and that the account was excessive after reviewing time dockets.

The court held that the statutory deadline had expired and that the applicant failed to demonstrate “special circumstances” justifying an extension.

For paid accounts, the court emphasized that relief is limited to cases involving fraud or gross misconduct, which were not alleged or supported by the record.

The application was therefore dismissed.

A father sought leave under s. 65.1(4) and (5) of the Child and Family Services Act to bring an application to review the status of his children, who had been crown wards placed for several years with their maternal grandparents.

The court considered the governing criteria for leave, including bona fides, whether unusual circumstances justified reopening a permanent placement, whether the review would advance the purposes of the Act, and whether the applicant established a prima facie case.

The evidence showed the children were thriving in a stable and nurturing home with their grandparents and maintained a positive relationship with their father.

The father failed to demonstrate unusual circumstances or provide a compelling basis to disturb the children’s long‑standing placement.

The motion for leave was dismissed.

The appellant appealed a conviction for care or control of a motor vehicle while over 80 mg of alcohol in blood.

She argued that the Crown failed to disclose police notes, that the investigative detention in a private parking lot was unlawful, that the breath samples constituted an unlawful search, and that the trial judge misapprehended the evidence.

The court held that the appellant failed to demonstrate prejudice arising from the alleged disclosure breach and that the issue was not properly pursued at trial.

Applying the ancillary police powers doctrine and the framework from Mann and Clayton, the court found that the officer had reasonable suspicion to investigate a potential impaired driver in a bar parking lot and that the detention and breath demands were lawful.

Minor misapprehensions of evidence by the trial judge were found to be peripheral and not material to the conviction.

The plaintiff brought a proposed class action on behalf of former members of a defined benefit pension plan seeking 100% of the plan's surplus.

The parties reached a settlement agreement at mediation, which included the defendants paying 100% of the surplus to plan members and an additional $350,000 inclusive of costs and interest.

The plaintiff brought a motion for certification of the action as a class proceeding for the purposes of settlement.

The court found the test for certification was met and granted the motion on consent.

The accused, charged with historical sexual offences against his daughter and granddaughter, brought an application for the production of the daughter's therapeutic records from a health centre.

The complainant opposed the application.

The court found that the accused established the records were likely relevant to an issue at trial, specifically the reliability of the complainant's memory, as she had admitted to police and at the preliminary inquiry that electro-shock treatments had affected her memory.

The court ordered the records to be produced for judicial review at the first stage of the application.

In the context of a mutual legal assistance proceeding under the Mutual Legal Assistance in Criminal Matters Act, individuals sought Charter remedies against both the provincial and federal Crowns following withdrawn criminal charges and a discontinued extradition process.

The Attorney General of Canada brought a motion to be removed as a party and to strike portions of the requested relief.

The court held that the federal Crown was not a party to the sending order application because the Attorney General of Ontario was the “competent authority” responsible for the process under the Act.

The court further found that the requested Charter remedies relating to extradition proceedings could not be pursued in the absence of an active proceeding under the Extradition Act and would improperly interfere with executive and prosecutorial functions.

The motion was granted and the impugned relief was struck.

During a jury trial for aggravated assault and assault with a weapon arising from a stabbing during a fistfight, the defence sought to have the defence of self-defence put to the jury.

The accused testified he did not bring the knife and did not intentionally stab the victim.

The trial judge ruled there was no air of reality to self-defence under s. 34(2) or s. 37 of the Criminal Code, as the accused's evidence of an accidental stabbing negated the requirement of an intentional act committed for self-preservation.

The plaintiff, a former residential tenant, brought an action against his former landlord for damages resulting from a rat bite and poor maintenance of his unit.

The defendant landlord brought a motion for summary judgment to dismiss the action.

The court dismissed the action, finding that under the Residential Tenancies Act, 2006, the Landlord and Tenant Board has exclusive jurisdiction over claims relating to a landlord's failure to maintain a residential unit.

Following a motion in a family law proceeding, the respondent sought costs of $7,725 after having been awarded costs subject to determination upon written submissions.

The court considered the parties’ conduct, including the absence of any settlement offer from the party seeking costs and the presence of an offer to settle made by the opposing party.

The court emphasized the importance of offers to settle in family law proceedings as a mechanism to narrow issues and facilitate resolution.

Finding the amount claimed excessive in light of these considerations, the court accepted the opposing party’s submissions and reduced the costs award.

Following a motion in a family law proceeding, the court determined the appropriate costs award.

The applicant had been the successful party on the motion.

The court found no unreasonable litigation conduct by either party and declined to award substantial indemnity costs.

Costs were fixed in a lump sum amount payable within 30 days.

The applicants, jointly charged with trafficking in cocaine, brought applications to stay the charges under s. 11(b) of the Charter, alleging unreasonable delay.

The total delay from arrest to trial was approximately 28 months.

The court applied the Morin framework and found that the institutional delay of 15 months was within acceptable limits, considering the inherent time requirements of a joint trial and the actions of the accused.

The court also found minimal prejudice to the applicants.

The applications for a stay were dismissed.

Following the dismissal of the plaintiff’s motion to amend a statement of claim to substitute named defendants for John/Jane Doe defendants, the court addressed costs between the plaintiff and one proposed defendant.

The proposed defendant sought partial indemnity costs after successfully opposing the motion.

The plaintiff challenged several components of the claimed costs, including preparation of a factum, travel time, and the total hours claimed, and argued that the interests of the proposed defendants were identical such that separate costs should not be awarded.

The court rejected those submissions, finding the proposed defendants’ interests were not the same and that separate representation was appropriate.

The court fixed fair and reasonable costs payable by the plaintiff.

Following reasons granting an interlocutory injunction in a dispute involving alleged breach of fiduciary duties and misuse of confidential information, the court addressed disagreements over the form of the order and costs.

The plaintiff sought additional wording expanding the scope of entities and confidential technology referenced in the injunction, which the court refused because the relief had not been sought in the motion record or oral submissions.

The court required that the original wording of the injunction regarding preservation of confidential information be maintained.

A stay of the data‑imaging paragraph was granted for two defendants pending determination of their motion for leave to appeal to the Divisional Court.

Costs of the interlocutory injunction motion were ordered to be in the cause.

The plaintiff brought a libel action against a municipal councillor arising from statements made to a newspaper editorial board concerning an untendered municipal contract awarded to a corporation associated with the plaintiff.

The court held that although the statements could in law be capable of referring to the plaintiff, the reasonable reader would not conclude that they did so.

The defendant spoke only about the corporation and repeatedly stated he could not accuse anyone or pinpoint wrongdoing.

The court further found that the statements expressed suspicion of corruption without factual assertion and, when read in context, did not convey a defamatory meaning.

The plaintiff therefore failed to establish two essential elements of defamation: reference to the plaintiff and defamatory meaning.

The applicant sought to reopen a summary conviction appeal that had been dismissed as abandoned in 2008 following a conviction for uttering a death threat and failing to comply with recognizances.

The court considered the extraordinary jurisdiction to reopen an appeal and whether doing so would serve the interests of justice.

The applicant relied on mental health history, incarceration at the time of the abandonment, and alleged ineffective assistance of counsel in entering a guilty plea.

The court found there was no satisfactory explanation for the failure to attend the appeal appearance, emphasized the strong interest in finality, and noted that the death of trial counsel would make assessing ineffective assistance difficult.

The court declined to reopen the appeal.

The father brought a motion seeking a temporary variation of child support based on a material change in parenting arrangements.

After the prior order contemplated a 60/40 parenting schedule for two children, the eldest child began residing full-time with the father while the younger child continued to reside primarily with him on a 60/40 basis.

The court found that the change in residence constituted a material change in circumstances.

Applying the Child Support Guidelines, the court ordered full table support for the child residing exclusively with the father and a set-off calculation for the child with shared parenting time.

The court also ordered proportional sharing of section 7 expenses and directed that support payments be enforced through the Family Responsibility Office.

During a jury trial for cocaine trafficking, the Crown invoked investigation privilege to prevent disclosure of the surveillance location from which a police officer observed the accused during an undercover drug transaction.

The court reviewed the principles governing investigative technique and observation post privilege, balancing the public interest in protecting police methods and cooperating third parties against the accused’s right to make full answer and defence.

The judge permitted extensive cross‑examination regarding the officer’s ability to observe but prohibited questions that would reveal the precise surveillance location or whether the officer was inside or outside a building.

The jury was instructed that the privilege limited defence cross‑examination and that this limitation could affect the weight given to the officer’s testimony.

The jury ultimately acquitted one accused and convicted the other.

The accused brought a pre‑trial application seeking to modify the standard racial bias challenge-for-cause question used during jury selection under the Parks framework.

The moving party proposed a multiple-choice question intended to better detect conscious and unconscious racial bias among prospective jurors.

The court reviewed prior decisions considering the proposed approach, including cases approving and rejecting the use of multiple-choice questions.

Finding no evidentiary basis to conclude the proposed question was more effective than the established Parks question, the court exercised its discretion to maintain the standard formulation.

The jury panel was directed to be asked the traditional Parks question during jury selection.

The accused was charged with ten counts of fraud and theft involving five victims.

He falsely posed as a wealthy investor and medical doctor to cultivate trust and induce the victims to give him money for investments.

The court found that the accused used the money for his own personal expenses and never invested it.

The accused was found guilty of fraud on four counts (involving four victims), with the corresponding theft charges stayed under the Kienapple principle.

He was acquitted on the counts relating to one victim due to reasonable doubt.

Following the abandonment of a motion seeking court approval of a third‑party litigation funding agreement in a proposed class proceeding, the respondents sought costs under Rule 37.09(3) of the Rules of Civil Procedure.

The applicant argued that the costs decision should be deferred to the certification motion, that no costs should be awarded due to the novelty of the issues, or alternatively that a reduced amount should be ordered.

The court held that the normal rule applies that a responding party is entitled to costs when a motion is abandoned.

While costs were warranted, the amount claimed on a partial indemnity basis was excessive.

The court reduced the award and ordered costs payable to the respondents in the amount of $7,000, all inclusive.