SCJ 2012

The responding party brought a motion to dismiss a motion to change seeking termination of spousal support following her remarriage.

The existing divorce order incorporated minutes of settlement providing for non-reviewable and non-variable spousal support until a fixed termination date.

The moving party argued that the recipient’s remarriage justified termination of support.

The court held that remarriage alone does not terminate spousal support and that the parties had expressly agreed the support obligation was non-reviewable and non-variable regardless of any change in circumstances.

As the motion disclosed no reasonable legal claim under s. 17 of the Divorce Act, it was struck.

The applicant sought to prevent prosecution for possession of a controlled substance for the purpose of trafficking on the basis of issue estoppel.

In an earlier conditional sentence breach hearing, the court had dismissed the allegation after finding the Crown failed to prove possession because the evidence consisted of inadmissible hearsay.

The applicant argued that the earlier finding constituted a final determination of the factual issue of possession.

The court held that the three-part test for issue estoppel was satisfied because the same factual issue had been conclusively determined between the same parties in the prior proceeding.

To avoid inconsistent factual findings and ensure fairness to the accused, the court entered a judicial stay on the trafficking-related possession charge.

The applicant father brought a contempt motion in a family law proceeding alleging multiple breaches of prior court orders by the respondent mother.

The court had previously found the respondent in contempt for failing to produce counselling records, failing to comply with a parenting schedule requiring attendance at children’s baseball activities, and failing to transfer ownership of equipment as ordered.

At sentencing, the court determined that some contempt had been belatedly purged while other breaches remained incapable of remedy.

The court imposed financial penalties totalling $800 for the contempts and awarded substantial full recovery costs to the applicant due to the respondent’s bad faith delay and repeated failure to comply with disclosure obligations.

Additional costs were ordered against the respondent and partially against her counsel for adjournments and procedural delays.

The applicants, facing severe liquidity issues and unable to meet financial covenants, sought protection under the Companies' Creditors Arrangement Act (CCAA).

The court found the applicants met the statutory definitions of 'company' and 'debtor company' and that a stay of proceedings was necessary to allow them to maintain operations and complete a sales process.

The court granted the Initial Order, which included the appointment of a Chief Restructuring Officer, approval of a DIP facility, various priority charges (Administration, Critical Supplier, Directors', and DIP Lenders'), and a Cross-Border Protocol to coordinate with parallel Chapter 11 proceedings in the United States.

The applicant brought a motion for the release of $101,290 held in trust from the sale of properties vested in her to secure unpaid child support and equalization payments.

The respondent opposed the release, arguing the applicant was in breach of prior orders and liable for security for costs.

The court granted the release of funds, finding the applicant had a strong prima facie case for fraudulent conveyance and that her claim to the funds outweighed the respondent's potential claim for security for costs.

The court dismissed the applicant's requests to vary prior procedural orders and directed the parties to attend a settlement conference.

The moving party sought certification of a national class proceeding alleging that organic asphalt roofing shingles manufactured by the defendants were defective and prone to premature failure.

Claims were advanced in negligence and under various provincial consumer protection statutes, asserting that the shingles failed prematurely and exposed homeowners to risks such as water penetration, mould, and structural damage.

The defendants opposed certification on the grounds that the claim disclosed only pure economic loss, that no common defect existed across the products, and that individual remedies were preferable.

The court held that the pleadings disclosed viable causes of action, that expert evidence provided some basis in fact for a common defect, and that the proposed class and common issues met the statutory requirements under s. 5 of the Class Proceedings Act, 1992.

A class proceeding was found to be the preferable procedure given the small individual claims and the efficiency of resolving common issues collectively.

The applicants sought an order directing that funds collected by a court‑appointed receiver from proceeds payable to the respondent be paid to them.

The evidence established that one of the applicants was a creditor of the respondent for more than $1.2 million arising from a loan guarantee and secured by a general security agreement.

The respondent withdrew its opposition at the hearing, while a third-party creditor requested that the successful applicant’s payment be held in court pending potential litigation.

The court held that the applicant’s creditor claim clearly ranked ahead of any shareholder interest and rejected the request to hold the funds as premature security for an uncommenced action.

The motion was granted directing payment of most of the fund to the creditor applicant.

The defendants, corporate sponsors of a soccer organization, brought a motion under rules 21.01(1)(b) and 25.11 of the Rules of Civil Procedure to strike a negligence claim arising from a catastrophic soccer injury.

The plaintiff alleged the sponsors had a duty of care to ensure that the organization maintained adequate insurance coverage for players.

The court held that mere financial sponsorship and advertising relationships do not create a proximate relationship giving rise to a duty of care to participants.

The pleadings failed to establish reliance, proximity, or control over the event or insurance arrangements.

The statement of claim disclosed no reasonable cause of action and was struck.

The appellant was convicted at trial of refusing to comply with a breath demand under ss. 254(3) and (5) of the Criminal Code after police interpreted statements made during a roadside conversation as a refusal to accompany them to the station for breath testing.

The appellant had been arrested, advised of his right to counsel, and requested to speak to a lawyer before the officers continued discussing the breath demand with him.

The appeal court held that the accused’s statements during the brief roadside discussion were tentative and formed part of a single ongoing exchange occurring while he sought legal advice.

Relying on authorities such as R. v. Jumaga, the court concluded that a definitive refusal cannot be established where the accused has requested counsel and has not yet been given a reasonable opportunity to obtain legal advice.

The trial judge erred in treating the roadside discussion as constituting the actus reus of refusal.

The conviction was set aside and an acquittal entered.

The moving party sought to re-open aspects of a prior family law trial decision concerning pension equalization and spousal support following the responding party’s post‑trial assignment into bankruptcy.

The court found that the bankruptcy constituted a material change in circumstances because it reduced the moving party’s ability to recover the previously ordered equalization payment.

The court ordered a transfer from the responding party’s pension into a locked account to satisfy the equalization amount, arrears, and interest.

The court also revisited spousal support and increased the monthly amount to the mid‑range of the Spousal Support Advisory Guidelines.

Additional property matters were resolved on consent.

The moving defendants, including a receiver manager and a bank, brought a motion for summary judgment to dismiss the plaintiff condominium corporation's claims for construction deficiencies, breach of warranty, oppression, and conspiracy, as well as various cross-claims.

Applying the 'full appreciation' test from Combined Air, the court found that the voluminous and conflicting evidentiary record precluded making dispositive findings on a summary judgment motion.

The motion was dismissed with respect to the plaintiff and the cross-claiming architect, and the action was directed to proceed to trial.

The Children's Aid Society applied for a finding that a 9-year-old child was in need of protection and sought an order for Crown wardship without access for the purpose of adoption.

The mother opposed the application, seeking return of the child, access if wardship was ordered, or a kinship placement with a relative.

The court found the child in need of protection due to the mother's history of substance abuse, violent behavior, and failure to provide adequate care, including exposing the child to squalid living conditions and domestic violence.

The court rejected the proposed kinship placement, finding the relative not credible.

The court ordered Crown wardship without access, concluding that access would not be beneficial and would impair the child's opportunities for adoption.

The defendant brought a motion for summary judgment dismissing a negligence action arising from injuries sustained when a sign fell and knocked the plaintiff from a ladder while he was assisting in removing it from a building.

The plaintiff alleged the defendant breached its duty under the Nova Scotia Occupiers Liability Act to ensure that he was reasonably safe while on the premises.

The court held that the evidentiary record was incomplete and that the motion was premature, emphasizing the need for production and discovery to permit a full appreciation of the issues.

Applying the principles from Combined Air Mechanical Services Inc. v. Flesch, the court declined to determine the claim summarily.

The motion was dismissed without prejudice to being renewed after discovery.

Following a trial determining beneficial ownership of a former matrimonial home, the successful applicant sought costs on a substantial indemnity basis exceeding $35,000.

The respondent argued that no costs should be awarded due to alleged unfairness, financial disparity, litigation conduct, and the nature of the applicant’s settlement offer.

The court rejected most of the respondent’s submissions and confirmed the applicant’s entitlement to costs as the largely successful party.

However, because the applicant did not fully achieve the terms of his settlement offer, the court limited recovery to partial indemnity costs.

After adjusting hourly rates and reducing excessive preparation time, the court fixed costs at $19,000 plus disbursements and taxes.

In a proceeding under the Companies’ Creditors Arrangement Act, the applicants sought several restructuring-related orders, including increased priority for certain court-ordered charges, suspension of special pension payment obligations under an individual pension plan, and approval of an engagement letter for a financial advisor.

The court held that it had jurisdiction under ss. 11.2, 11.4, 11.51 and 11.52 of the CCAA to grant super‑priority charges and accepted the applicants’ submissions regarding critical suppliers, DIP lenders, and a directors’ charge.

The court also approved the suspension of special pension payments and the engagement of the proposed financial advisor on specified terms.

Certain issues relating to a key employee incentive plan were deferred for later determination.

An order was issued granting the requested relief.

Waterfront property owners sought a declaration that their subdivision lots extended to the water’s edge of the Ottawa River despite a strip of land shown between the lots and the shoreline on a 1931 registered plan.

The defendants, successors in title to the original subdividers, claimed ownership of the strip and argued the plan intentionally reserved the land.

The court found a latent ambiguity in the subdivision plan and admitted extrinsic evidence to determine the intention of the original subdividers.

After reviewing historical surveying practices, expert evidence, and surrounding circumstances, the court concluded the rectilinear boundary on the plan represented an approximation of the high-water mark and that the subdividers believed the intervening land was public.

As the Crown patent extended to the water’s edge and there was no intention to reserve the strip, the lots were held to extend to the water’s edge.

The plaintiff brought a motion to extend the set down date for a complex product liability action and to place the proceeding and a related action into case management.

The defendants opposed the extension, arguing that the plaintiff had failed to comply with multiple court-ordered timetables and that the delay warranted dismissal due to prejudice, including the loss of documents and witnesses.

The court held that while the plaintiff’s prosecution of the action had been slow, its explanations for delay were plausible and it had taken ongoing steps to advance the litigation.

The court found that the evidence of prejudice was weak and largely speculative, and that the plaintiff had established a prima facie absence of actual prejudice to the defendants.

The set down date was extended, but the request to place the matter into case management was refused.

The biological father brought a motion seeking interim access to a child conceived through artificial insemination pursuant to a prior donor agreement in which he purported to relinquish parental rights.

The respondent mother opposed access and relied on the existing status quo in which the child had never met the biological father.

Applying the best interests test under s. 24(2) of the Children's Law Reform Act, the court acknowledged the importance of biological relationships but emphasized the principle of maintaining the status quo on interim motions.

Given the child's young age and the proximity of the scheduled trial date, the court found that introducing the applicant at the interim stage risked confusion and potential harm.

The motion for interim access and related requests were dismissed.

The representative plaintiff brought a motion for approval of a settlement agreement in a class action arising from the loss of an unencrypted USB key containing the personal information of over 83,000 individuals who received H1N1 vaccines.

The proposed settlement established a claims process for class members who suffered economic harm, with a claim period ending in August 2016, but provided no direct cash payments for anxiety or distress.

Despite objections from some class members regarding the lack of immediate compensation and the length of the claims period, the court approved the settlement as fair and reasonable.

The court noted that the risk of identity theft had largely dissipated over time, making the prospects of success at trial poor, and also approved class counsel fees of $500,000 plus a percentage of future claims.

Multiple applicants charged with bid‑rigging under s. 47(2) of the Competition Act and conspiracy under s. 465(1)(c) of the Criminal Code sought certiorari to quash their committal for trial following a preliminary inquiry.

They argued that the government Requests for Proposals used to procure information technology services merely created standing offers or pre‑qualification lists and therefore could not constitute “calls for bids or tenders” within the meaning of the Competition Act.

The court reviewed the Contract A/Contract B tendering framework and relevant procurement jurisprudence, emphasizing that the existence of a bidding contract depends on the parties’ intention to create binding rights and obligations.

It held that there was some evidence from which a trier of fact could conclude that the RFP process created contractual relations sufficient to constitute bids or tenders, even though the government retained discretion not to award work.

The application to quash the committal was therefore dismissed.