SCJ 2013

Family law trial addressing custody, access, child support, spousal support, equalization of net family property, and sale of matrimonial real estate following separation.

The court granted the mother sole custody of the child and established a graduated access schedule for the father beginning with supervised access and transitioning to unsupervised weekend access.

Retroactive child support and spousal support were denied because the father's share of rental profits retained by the mother since separation was sufficient to offset those obligations, though ongoing guideline child support was ordered based on imputed income.

The parties were ordered to sell jointly owned real properties with proceeds applied to debts and then divided equally, subject to an equalization payment from the father.

The father was also ordered to sign passport documentation for the child subject to notice restrictions on relocation.

The moving parties sought leave to appeal an interlocutory order dismissing a motion related to a pending summary judgment motion in complex multi-party litigation.

The challenged order refused leave to file supplementary affidavit evidence after cross-examination, declined to order that the assigned motions judge not hear the summary judgment motion, and addressed issues regarding further cross-examination and privilege.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court held that the applicants failed to demonstrate either a conflicting decision or good reason to doubt the correctness of the order on matters of public importance.

The motions judge had properly applied established authorities governing supplementary affidavit evidence and the administration of motions under Rule 37.15.

The court concluded the issues raised concerned only the interests of the parties and did not justify appellate intervention.

The defendant corporation brought a motion for summary judgment dismissing an action for wrongful dismissal arising from the termination of a management consulting agreement.

The defendant alleged that the plaintiff consultant committed a “criminal act of dishonesty” by installing hidden surveillance cameras to intercept private communications at a company property, relying on a prior finding that the conduct breached s. 184(1) of the Criminal Code.

The court held that determining whether the criminal act constituted dishonesty within the contractual clause, and whether the act was intended to result in personal gain at the company’s expense, required a contextual assessment of intent and surrounding corporate conflict.

Given conflicting evidence regarding the plaintiff’s motives and the broader corporate struggle between board factions, the issues were unsuitable for determination on a summary judgment record.

A full trial was required to properly assess credibility and context.

The parties entered into an oral joint venture to redevelop a residential property, with profits to be shared equally after completion and sale.

After disputes arose during construction, the defendant excluded the plaintiff from the project, refused to acknowledge the plaintiff’s interest in the property, obtained a second mortgage without notice, and ultimately sold the unfinished property without the plaintiff’s consent.

The court found the arrangement constituted a partnership under the Partnerships Act and that the defendant’s conduct amounted to a repudiation and breach of the partnership agreement.

The plaintiff was therefore justified in ceasing further financial contributions after being excluded from the project.

Liability was determined in Phase 1, with damages and accounting to be addressed in a subsequent phase.

The plaintiffs moved to set aside a registrar’s administrative dismissal of their action for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the Reid factors governing motions to set aside dismissal orders, including the explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendant.

The court found that the plaintiffs had provided no satisfactory explanation for several years of inactivity and failed to demonstrate that they always intended to advance the action toward trial.

Although actual prejudice to the defendant was not conclusively established, the court held that the unexplained delay and failure to comply with a status hearing timetable justified maintaining the dismissal.

The motion to set aside the administrative dismissal was therefore denied.

The respondent property owner brought a motion to stay an earlier order requiring an engineer to provide the municipality with a draft structural heritage engineering report concerning an unsafe heritage building.

Applying the test for a stay from RJR‑MacDonald, the court accepted that there was a serious issue regarding the municipality’s jurisdiction to require disclosure of the report.

However, the court found that disclosure would not cause irreparable harm because the report was not privileged and any harm would be limited to the respondent’s financial interests if remediation rather than demolition were considered.

The balance of convenience favoured the municipality and the public interest, as the city required all available information to assess safety and potential preservation of the heritage structure.

The motion for a stay was therefore refused.

Sentencing for importing approximately 4.2 kilograms of cocaine into Canada and possession of a credit card writer device.

The offender refused to cooperate with a pre-sentence report and maintained that he was outside the authority of the court.

The court considered the sentencing range for cocaine importation established in prior appellate authority and determined the offender should not be treated as a mere courier, noting the large quantity of drugs, possession of fraud equipment, and a serious prior criminal record involving firearms and violence.

Emphasizing denunciation and deterrence in large-scale drug importation, the court imposed a nine-year penitentiary sentence for importing cocaine with a concurrent one-year sentence for possession of the credit card writer.

Credit of 1.5-to-1 was granted for 398 days of pre-trial custody.

The plaintiffs sought specific performance of an alleged oral right of first refusal for a 123-acre property, or alternatively, specific performance of a written agreement of purchase and sale for a 10-15 acre severed parcel.

The court found no oral agreement existed for the right of first refusal, and even if it did, it was unenforceable under the Statute of Frauds as the plaintiff's property maintenance did not constitute part performance.

The court also declined to order specific performance of the written agreement because expert evidence established that obtaining the necessary land severance was highly improbable.

The plaintiffs' claims were dismissed and the defendant's counterclaim to validate the transfer and remove certificates of pending litigation was granted.

The plaintiffs in three separate actions against the Government of Canada brought motions to strike Canada's Statements of Defence for failure to provide an adequate List of Documents.

In support, they served summonses to examine three government officials.

Canada brought a preliminary motion to quash the summonses, arguing it was immune from having its List of Documents challenged and that the summonses were an abuse of process.

The court dismissed Canada's motion, finding that the Crown's List of Documents can be challenged similarly to an Affidavit of Documents, and that the summonses were not an abuse of process, though the court imposed terms to prevent overreaching.

The defendant insurer brought a motion for summary judgment arguing that the plaintiffs failed to meet the corroboration requirement under the OPCF 44R Family Protection Coverage Endorsement for accidents involving unidentified vehicles.

The plaintiffs alleged the driver was forced off the road by a red pickup truck that was never identified, relying on tire marks and expert reconstruction evidence as physical corroboration.

The court held that “physical evidence” under the endorsement does not need to originate from the unidentified vehicle itself, provided it indicates the involvement of another vehicle.

Tire marks consistent with evasive action could constitute corroborative physical evidence.

Given conflicting expert opinions regarding accident reconstruction, the court found a genuine issue requiring a trial and declined to resolve credibility issues on summary judgment.

Following a motion in which the defendants sought to strike the plaintiff’s statement of claim, the court addressed the quantum of costs.

The plaintiff was substantially successful in resisting the primary relief sought, although the defendants succeeded in striking certain remedies and a declaration for breach of contract, and in dismissing a minor abuse of process motion.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including success, proportionality, and the reasonable expectations of the losing party.

Given the divided success, the plaintiff’s entitlement to costs would be reduced.

The court directed the parties to exchange written submissions and a bill of costs regarding the quantum.

A residential home builder commenced an action to recover unpaid amounts under a construction contract and enforce a construction lien.

The homeowners argued that the governing contract price was an earlier quotation and that omitted items generated credits reducing the contract value, and they counterclaimed for deficiencies.

The court found that the binding agreement was the written contract executed by the homeowners after construction commenced, setting the contract price at $725,000 inclusive of GST.

The court rejected the homeowners’ interpretation that “omit” items created credits and held there was no documentary evidence supporting such a claim.

The construction lien was also found to have been registered within the statutory 45‑day period under the Construction Lien Act.

Judgment was granted to the builder subject to a modest deduction for proven deficiencies.

Following a motion to change a child support order, the court addressed the issue of costs.

The moving party had been successful in obtaining an order requiring the responding party to pay full table child support due to a reduction in parenting time exercised by the responding party, though she was unsuccessful on other arguments including the characterization of the prior order and certain claimed s. 7 expenses.

Applying Rules 18 and 24 of the Family Law Rules, the court assessed success, reasonableness of the parties’ positions, offers to settle, and the time reasonably attributable to the motion.

The court found that while both parties advanced some unreasonable positions, neither acted in bad faith.

Considering partial success and proportionality, the court awarded reduced costs to the moving party.

A solicitor sought leave to appeal a costs order requiring him to personally pay costs on the basis that he engaged in “sharp practice” contrary to the Rules of Professional Conduct.

The motion judge held that although a master may examine a lawyer’s conduct when determining costs under Rule 57.07(2) of the Rules of Civil Procedure, making an actual finding that the lawyer breached the Rules of Professional Conduct exceeds a master’s jurisdiction.

Such findings are reserved for Law Society discipline proceedings with full procedural protections.

Given the seriousness of a professional misconduct determination and the procedural context of the costs motion, the matter raised a legal issue warranting appellate review.

Leave to appeal was granted.

The moving party, the deceased's grandson and sole beneficiary, sought to be appointed as estate trustee pursuant to the deceased's will.

The respondent, who claimed to be the deceased's secret spouse, objected to the appointment based on the moving party's criminal record and a conflict of interest, as the respondent intended to make equalization and support claims against the estate.

The court found that while the moving party's criminal past alone might not disqualify him, his position as sole beneficiary created a significant conflict of interest with the respondent's claims against the estate.

The court passed over the moving party and appointed the lawyer who drafted the will as an independent estate trustee.

The respondent was substantially successful on motions to bifurcate the trial and compel financial disclosure from the applicant, who was seeking to set aside their separation agreement.

The parties could not agree on costs.

The respondent sought $12,290.00 on a substantial indemnity scale, while the applicant argued for $3,000.00.

The court found that the applicant's conduct in challenging the agreement while concealing his current financial circumstances warranted costs on a substantial indemnity scale.

The court fixed the respondent's costs at $8,407.20, inclusive of HST, after adjusting the hours claimed for preparation to ensure proportionality and reasonableness.

The accused was charged with criminal negligence causing death and dangerous operation causing death following a fatal motor vehicle collision involving a tractor‑trailer.

He brought a Charter application seeking exclusion of several categories of evidence, including statements made at the collision scene, driving logs and related trucking documents seized from the vehicle, a videotaped police interview, and derivative evidence.

The court held that statements made to the first officer at the scene were compelled accident‑report statements under the Highway Traffic Act and therefore protected by use immunity pursuant to s. 7 of the Charter.

However, although police breached s. 8 by unlawfully searching the truck cab and seizing driving logs, the evidence was admitted after applying the Grant factors because the privacy interest was minimal and the evidence was reliable and important.

The court also rejected arguments that the logs engaged s. 7 self‑incrimination protections or that the later interview breached s. 10(b).

The applicant sought writs of certiorari and mandamus to quash a Justice of the Peace's decision refusing to issue process against a police officer for a private prosecution.

The applicant also sought to prohibit his own upcoming criminal trial.

The Superior Court of Justice dismissed the applications, finding no jurisdictional error by the Justice of the Peace, who properly considered the applicant's evidence and concluded there was no rational inference of criminal intent.

The court further noted that even if there were jurisdictional error, it would decline to issue the writs as there was no reasonable prospect of conviction.

The respondent insured received long-term disability benefits from the applicant insurer while appealing a denial of WSIB benefits.

The policy allowed the insurer to deduct 100% of WSIB benefits from the disability payments and required the insured to reimburse any overpayment.

When the WSIB appeal succeeded, the insured's counsel withheld a portion of the retroactive WSIB payment for legal fees.

The insurer brought an application to recover the gross WSIB amount.

The court granted the application, finding the policy language unambiguous and rejecting arguments based on unjust enrichment and the 'made whole' doctrine.

The applicant sought a declaration from the Superior Court of Justice that certain shares were held in a family trust, after the Canada Revenue Agency assessed him on the basis that the trust did not exist.

The Attorney General of Canada argued that the Tax Court of Canada had exclusive jurisdiction over the matter.

The court declined jurisdiction, finding that the proceeding was essentially an appeal of a tax ruling and that the Tax Court of Canada is the appropriate forum to determine the existence of a trust for income tax purposes.