SCJ 2012

A municipal conflict of interest application sought removal of a mayor from office under the Municipal Conflict of Interest Act.

The respondent mayor brought a motion to convert the proceeding from an application to an action requiring a full trial with viva voce evidence.

The court held that the Act does not require all such proceedings to proceed by trial and that applications may be determined on affidavit evidence, subject to the court’s discretion to order oral evidence or a trial of issues where necessary.

At this preliminary stage, the evidentiary record was incomplete and it was premature to determine whether material facts were in dispute.

The motion to convert the proceeding to an action was therefore dismissed without prejudice.

During a lengthy criminal trial involving charges arising from a fatal motor vehicle collision, the Crown sought to call an additional accident reconstruction expert after the trial had already commenced and after the Crown’s primary reconstruction witness had testified.

The defence objected, arguing that the late disclosure of the expert report caused significant prejudice and that the court should exclude the evidence in the interests of trial fairness.

The court considered s. 657.3 of the Criminal Code and authorities addressing remedies for late expert disclosure.

It held that exclusion of relevant evidence is an exceptional remedy and that the prejudice to the accused could be addressed through a brief adjournment allowing the defence to consult its own expert.

The court therefore permitted the Crown to call the additional expert subject to an adjournment for the defence.

Following a motion concerning amendments to a statement of claim and the scope of discovery, the court addressed costs after the parties were unable to agree.

The moving party had largely succeeded in obtaining amendments and discovery relief, although some proposed amendments were refused.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court held that costs should follow the result but reflect the partially divided outcome.

The court reduced the moving party’s claimed fees to remove work unrelated to the motion and applied a further percentage reduction to account for unsuccessful portions of the amendments.

Partial indemnity costs and reduced disbursements were awarded to the moving party.

The accused applied for a stay of proceedings under ss. 11(b) and 24(1) of the Charter, alleging unreasonable delay between the laying of charges and the scheduled trial date.

The court applied the framework from R. v. Morin and assessed the total delay of approximately 36.5 months, subtracting periods attributable to defence waiver, inherent time requirements, and defence delay.

After these deductions, the net delay was calculated at approximately 18 months and one week.

The court found limited prejudice to the accused and emphasized the seriousness of the charges involving large-scale marijuana production.

Balancing the factors, the court concluded the delay did not warrant a stay of proceedings.

In long‑running commercial litigation concerning an alleged oral agreement granting the plaintiffs a 50% interest in a casino development project, the parties brought pre‑trial motions addressing potential conflicts of interest involving defence counsel and issue estoppel relating to alleged spoliation of evidence.

The plaintiffs clarified that their spoliation allegations were directed only at the defendants and not at defence counsel, and that they would not seek to call defence counsel as witnesses.

The court treated these statements as binding admissions and issued declarations preventing the plaintiffs from alleging misconduct, spoliation, or false statements by defence counsel at trial.

Remaining issues, including whether issue estoppel barred certain spoliation arguments, were left for determination by the trial judge.

Following a jury conviction for trafficking cocaine and possession of cocaine for the purpose of trafficking under the Controlled Drugs and Substances Act, the court considered the appropriate sentence.

The offender played a secondary role in a buy‑bust operation involving approximately one ounce of cocaine and had limited criminal history, strong family support, and demonstrated rehabilitation since the offence.

The court rejected the argument that the Kienapple rule barred multiple convictions, finding trafficking and possession for the purpose of trafficking constituted distinct criminal wrongs.

After reviewing authorities on conditional sentences in drug trafficking cases and considering the principles of deterrence, denunciation, rehabilitation, and parity with a co‑accused, the court concluded that the offender did not pose a danger to the community.

A conditional sentence served in the community was imposed with strict conditions.

The applicant sought to prohibit the Family Responsibility Office (FRO) from enforcing support arrears after he and his wife consented to an order extinguishing all arrears and withdrew from the FRO.

Prior to the consent order, the applicant made a support payment that was returned for non-sufficient funds (NSF), but the FRO had already disbursed the funds to the wife.

The court dismissed the application, finding that under sections 57 and 58 of the Family Responsibility and Support Arrears Enforcement Act, 1996, the FRO has an independent statutory right to continue enforcement to recover the NSF amount as reimbursement for monies paid out, regardless of the parties' private agreement to extinguish support arrears.

The plaintiff real estate agent sued the defendant for a commission under a listing agreement after introducing a purchaser.

The defendant cancelled the property sale and instead structured the transaction as a sale of shares by its parent company to the purchaser.

The plaintiff moved to amend its claim to add the parent company, plead an indirect sale and breach of good faith, and add an oppression claim under the Business Corporations Act.

The defendant moved to strike the claim for disclosing no reasonable cause of action.

The court granted the plaintiff's motion to amend and dismissed the defendant's motion to strike, finding that the proposed claims were tenable at law and not plain and obvious to fail.

The applicant purchased several commercial condominium units in 1987, but due to a lawyer's inadvertence, one unit was omitted from the 1994 registered transfer.

The applicant occupied the unit for 17 years unaware of the error.

In 2008, the original developer sold its remaining units to the respondent in a bulk sale, and the omitted unit was inadvertently transferred to the respondent.

The applicant sought rectification of the land titles register.

The court found that the respondent was not a bona fide purchaser for value without notice of the specific unit, as there was no meeting of the minds, no agreement, and no consideration for its transfer.

The court ordered the register rectified to reflect the applicant as the owner.

Former unmarried partners disputed beneficial ownership of a house and family farm that had been transferred into joint title during their relationship.

The applicant argued the respondent held her registered interest in trust and that title had been transferred only to protect her anticipated financial contributions.

The court applied resulting trust, constructive trust, and unjust enrichment principles following Kerr v. Baranow and Pecore v. Pecore.

It concluded the transfers were not intended as a gift of beneficial ownership and that the respondent held title in trust for the applicant subject to compensation for her financial and labour contributions.

Title was ordered vested in the applicant upon payment of a monetary award reflecting the respondent’s contributions.

The plaintiff, an assistant store manager, was terminated for just cause after failing to prevent a workplace safety violation where a wheelchair-bound employee was lifted to a second floor using an order picker forklift.

The court applied the McKinley contextual approach and found that while the plaintiff's failure to stop the lift was serious misconduct, it did not strike at the heart of the employment relationship to justify summary dismissal.

The court awarded the plaintiff 10 months' salary in lieu of notice, but declined to award aggravated or moral damages.

The defendants moved to strike parts of the plaintiff's statement of claim, which sought damages for the delay in marketing its generic drug caused by the defendants' actions under the Patented Medicines (Notice of Compliance) Regulations.

The plaintiff claimed damages under s. 8 of the Regulations, unjust enrichment, and the Trade-marks Act after the defendants' patent was declared invalid.

The court dismissed the motion to strike these claims, finding they had a reasonable prospect of success and raised unsettled legal questions, but struck a bald claim for remedies 'otherwise available at law'.

A custody and access motion concerning two children following the parties’ separation.

The respondent sought joint custody in order to participate in decision‑making, while the applicant sought sole custody due to ongoing conflict and inability to cooperate.

The court considered the children’s views and wishes through submissions from the Office of the Children’s Lawyer and assessed the parents’ ability to communicate and make joint decisions.

Finding that the parties could not cooperate sufficiently to support joint custody, the court granted sole custody to the applicant with consultation rights to the respondent.

A structured access regime was ordered, including midweek access, with the older child permitted discretion regarding time spent with the respondent.

The applicants sought a declaration of ownership and vesting order over a triangular waterfront parcel based on adverse possession.

The claim relied on decades of community use by a local residents’ association that maintained a dock, stored boats, and used the area for recreational access to the river.

The court accepted that the use was open, notorious, peaceful, and continuous for many years and arose from a mutual mistake about the boundary between adjoining lots.

However, the applicants failed to prove that their possession was adverse and exclusive, as the legal owners and their lessees continued to use the land alongside the group.

Because the owners’ possession was never discontinued and no intention to exclude them was established, the elements of adverse possession were not satisfied.

In a certified class proceeding alleging a price-fixing conspiracy in the market for DRAM (dynamic random access memory) devices contrary to Part IV of the Competition Act and related torts, the representative plaintiffs sought court approval of a negotiated settlement with one defendant.

The settlement required the settling defendant to pay $5.75 million for the benefit of class members in Ontario, British Columbia, and Québec and to provide extensive cooperation in the ongoing litigation against non-settling defendants.

The agreement also included a bar order preventing contribution and indemnity claims against the settling defendant while permitting discovery cooperation and proportional liability determinations at trial.

Applying established class action settlement approval principles, the court concluded the settlement was fair, reasonable, and in the best interests of the class.

The settlement approval order was granted.

During a trial for second degree murder where the accused allegedly drove his SUV onto a sidewalk and killed the victim following a nightclub altercation, defence counsel requested that the defence of provocation be put to the jury.

The trial judge refused the request, finding no air of reality to the defence.

The judge concluded there was no evidence that an ordinary person would be deprived of self-control by the insults exchanged, no evidence the accused actually lost self-control, and no evidence that the insults or the accused's reaction were sudden.

The parties separated in 2003 and the mother has had primary care of their son since.

The father's access was restricted to supervised visits after incidents of inappropriate behavior, including threatening the mother with a baseball bat and breaching court orders.

The father sought unsupervised access and a finding of contempt against the mother, while the mother sought sole custody and continued supervised access.

The court granted sole custody to the mother and ordered that the father's access remain supervised due to his poor judgment and disregard for court orders.

The father was also ordered to pay table child support, and his contempt motion was dismissed.

Following earlier reasons on a motion, the court determined the issue of costs and related financial matters.

Although success on the motion was divided, the moving party succeeded against one defendant regarding recovery of a $90,000 refund.

The court awarded partial indemnity costs of $15,000 plus HST and certain disbursements against that defendant, while declining to order costs for other dismissed aspects of the motion.

The court also confirmed that $60,000 previously paid into court would remain there and declined to award prejudgment interest at a rate higher than that provided under the Courts of Justice Act.

The applicant sought a bail review under s. 520 of the Criminal Code following continued detention after his sureties withdrew.

The court determined that the earlier release order remained valid and that procedural irregularities in the surety-rendering process under s. 766 resulted in unlawful detention.

The justice of the peace had no jurisdiction to impose a new detention order under s. 515(6) while a prior release order remained in effect.

Although the bail review itself was dismissed, the court granted habeas corpus with certiorari in aid to remedy the unlawful detention and restore the applicant’s ability to secure release under the original release order.

In a personal injury action arising from a skiing accident allegedly causing traumatic brain injury, the defendants sought an order compelling the plaintiff to undergo a vocational assessment by a non‑medical practitioner.

The plaintiff argued the court lacked jurisdiction under the Courts of Justice Act and the Rules of Civil Procedure to order such an assessment because the proposed assessor was not a "health practitioner" within the statutory definition.

The court held that, regardless of the statutory framework, the court may order a non‑medical vocational assessment where it is reasonably required and necessary to ensure fairness in the litigation.

Given the substantial claim for past and future income loss and the importance of assessing residual earning capacity, the requested assessment was found appropriate and not unfairly intrusive.

The motion was granted and the plaintiff was ordered to attend the vocational assessment.