SCJ 2013

The appealing party, Your Business Partner Inc., appealed the Trustee's disallowance of its proofs of claim in the proposal of Dr. Thomas Bell.

The Trustee argued the appeal was filed one day late based on the actual date the registered mail was received.

The court held that under the Rules of Civil Procedure, service by mail is deemed effective on the fifth day after mailing, making the appeal timely.

The court also provided preliminary views that the Trustee's perfunctory disallowance of complex claims was inappropriate and contrary to the remedial intent of the Bankruptcy and Insolvency Act.

The defendants sought costs following their successful motions to compel the plaintiff to provide particulars of damages and to quash a summons to a witness.

The court found that the plaintiff's conduct, which included unfounded allegations of bad faith, a last-minute recusal motion without notice, and unreasonable delay tactics, warranted an elevated costs award.

The court fixed the total costs payable by the plaintiff to the defendants at approximately $45,000.

A creditor brought an application for a bankruptcy order alleging acts of bankruptcy and sought a stay of the proceeding pending the debtor’s criminal fraud trial.

The creditor acknowledged that he could not prove the alleged debt without relying on findings from the criminal prosecution.

The court held that the Bankruptcy and Insolvency Act requires a bona fide allegation of a debt capable of proof at the time a bankruptcy application is commenced.

Applying both that principle and the RJR‑MacDonald stay test, the court found the applicant failed to demonstrate irreparable harm and that the balance of convenience favoured the debtor due to reputational and credit harm caused by an outstanding bankruptcy application.

The motion for a stay was denied and the applicant was granted leave to withdraw the bankruptcy application subject to costs submissions.

The defendants in a s. 38 Bankruptcy and Insolvency Act fraudulent conveyance action brought a motion for leave to amend their Statement of Defence, issue a third party claim, and discharge certificates of pending litigation.

The court granted leave to amend the Statement of Defence in part, allowing unopposed amendments and 'state of mind' amendments on strict terms to prevent delay, but refused amendments related to limitations and solicitor's negligence.

The motion to issue a third party claim was dismissed as the proposed claims did not relate to the fraudulent conveyance action.

The motion to discharge the certificates of pending litigation was also dismissed because the certificates were reinstated by a Court of Appeal order, which the Superior Court lacked jurisdiction to vary.

The accused pleaded guilty to two counts of dangerous operation of a motor vehicle causing bodily harm arising from a collision that seriously injured two victims exiting their parked vehicle.

The vehicle lost control after striking a snowdrift and collided with the victims’ van, causing significant injuries including prolonged hospitalization for one victim.

The court considered the offender’s lack of prior criminal record, health issues, remorse, alcohol-related concerns, and progress in psychotherapy.

Applying sentencing principles of denunciation, general deterrence, and rehabilitation, the court accepted a joint submission on sentence.

Concurrent custodial terms of eighteen months and concurrent three‑year driving prohibitions were imposed.

The Crown applied to have the offender designated a dangerous offender following his conviction for assault causing bodily harm and breaches of a recognizance.

The offender had a lengthy criminal record involving violence and sexual assault, and suffered from schizophrenia and antisocial personality disorder.

Three expert witnesses agreed the offender was a high risk to reoffend violently and sexually, but disagreed on whether his risk could be managed in the community.

The court found that the offender met the criteria for a dangerous offender and that his risk could not be adequately controlled in the community under a long term supervision order due to his history of non-compliance with medication and court orders.

The offender was designated a dangerous offender and sentenced to an indeterminate period of detention in a penitentiary.

A family law trial addressing child support, section 7 extraordinary expenses, property valuation, and life insurance security following a contentious separation.

The applicant sought to impute income to the respondent after termination of employment and sought recovery of substantial extracurricular expenses for the children.

The court declined to impute income, finding the respondent was not intentionally underemployed and that his actual income history reflected his earning capacity.

The court limited extraordinary extracurricular expenses to a reasonable amount consistent with the family’s pre‑separation spending pattern and ordered proportional sharing, including orthodontic expenses.

The court also valued disputed household contents, tools, vehicles, and boats for equalization purposes and ordered the respondent to maintain life insurance securing child support obligations.

The court heard a reference for an accounting of monies owing, contributions made, and ownership holdings regarding multiple real estate properties owned by a partnership.

The court found that the managing partner breached his obligations by moving to Korea and delegating his duties, and disallowed his claims for management fees, travel expenses, and delegated work.

The court also found that the investing partner breached the agreement by unilaterally selling properties and retaining the proceeds, ordering him to repay the funds to the partnership.

Due to disorganized financial records, the court provided specific directions on allowable expenses and ordered the parties to prepare standardized itemized lists for a resumed hearing if they could not agree on the final accounting.

The moving defendants sought a sealing order under subsection 137(2) of the Courts of Justice Act to seal various motion materials, transcripts, and future filings in a commercial civil action.

The court applied the confidentiality order test from Sierra Club of Canada v. Canada (Minister of Finance), requiring proof that disclosure would pose a serious risk to an important commercial interest and that the benefits of confidentiality outweigh the open court principle.

The only supporting evidence was an affidavit from counsel asserting that certain documents contained proprietary commercial information, but the affidavit relied on belief and unsupported assertions contrary to subrule 39.01(4) and the best evidence rule.

The court found insufficient evidence of a real and substantial risk to commercial interests and declined to give weight to the contested statements.

The motion for a sealing order was dismissed.

Following a successful motion to amend a statement of claim, the moving party sought partial indemnity costs of $12,227.50.

The court considered the presumption that a successful party is entitled to costs but also the rule that prejudice caused by pleading amendments may be remedied through costs.

After reviewing the costs outlines, the court found portions of the claim excessive, including estimated travel costs and fees for junior counsel appearing on the motion.

Applying the factors under s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court fixed partial indemnity costs at $10,000.

Payment was deferred pending the outcome of an appeal and any further arguments concerning terms of the amendment.

The respondent brought a motion seeking an adjournment of an application.

During the hearing, counsel for both parties raised objections concerning the admissibility of statements contained in affidavits filed by the parties.

The court noted the requirements under Rule 39.01(5) of the Rules of Civil Procedure governing affidavits on applications, including limits on hearsay, opinion evidence, legal argument, and statements based on information and belief.

The court declined to strike any affidavit paragraphs at this stage and held that the motions judge hearing the application would determine the admissibility or weight of the impugned statements at the hearing.

The application was adjourned and the treatment of affidavit evidence left to the discretion of the motions judge.

The Crown applied for leave to provide a prosecution witness with transcripts of her earlier testimony to refresh her memory before resuming cross‑examination following a five‑month interruption in proceedings.

The defence opposed the request, arguing it would breach professional conduct rules and permit the witness to rehearse prior answers where credibility was a central issue.

The court held that while it had discretion to permit such access, the request was speculative and not sufficiently necessary given the witness’s extensive notes and documentary record.

The court determined the safer course was to maintain the status quo and allow the witness to refresh her memory from transcripts only if a lack of recall arose during testimony.

The application was dismissed.

A bankrupt sought costs following the withdrawal of a motion relating to the scope of a section 163 examination under the Bankruptcy and Insolvency Act.

The examination concerned whether corporate credit cards were being used to pay the bankrupt’s personal expenses and whether income was being diverted through a company controlled by the bankrupt’s spouse.

During argument, the court raised concerns about the procedural posture of the examination and the potential overlap between the trustee’s investigative powers and a separate section 38 action commenced by certain creditors represented by the same counsel.

The motion itself was ultimately withdrawn after the parties reached a partial resolution, leaving only the issue of costs.

Applying proportionality, the court awarded the bankrupt a credit of $2,500 plus HST against obligations owed to the estate.

The applicant father brought a motion seeking increased parenting time with the child pending trial.

The respondent mother opposed any change to the existing interim consent order, arguing the current arrangement should remain until trial.

The court considered whether a change in circumstances was required before varying the interim order and distinguished prior authority because the consent order was made on a without prejudice basis pending further order of the court.

While the court declined to alter the child’s primary residence or grant the full access sought, it held that increased contact with the father was in the child’s best interests.

The court therefore ordered additional alternating weekend access and summer parenting time pending trial.

The plaintiff brought a motion to set aside a Registrar’s order dismissing the action as abandoned following prolonged delay in prosecuting a motor vehicle accident claim.

The court applied the contextual test from Scaini v. Prochnicki, considering explanation for delay, inadvertence in missing deadlines, promptness of the motion, and prejudice to the defendant.

The court found multiple unexplained delays in the litigation, including failures to provide basic documents to the defendant’s insurer and a lengthy delay before bringing the motion after the dismissal order.

The plaintiff’s explanations, including counsel’s health issues and a mislabeled file, were found insufficient and not credible in light of earlier delays.

The presumption of prejudice to the defendant was not rebutted.

The motion to set aside the dismissal order was dismissed.

The plaintiff brought a motion to strike a paragraph of the defendants’ fresh as amended statement of defence asserting that the claim was statute-barred under the limitation period.

The plaintiff argued the issue had already been determined on an earlier motion and that the defendants were estopped from relitigating it.

The court held that it was not plain and obvious that the earlier endorsement constituted a final determination of the limitation issue, particularly given the limited reasons and absence of a formal order.

The court also noted that the plaintiff had taken significant fresh steps in the litigation after the defence was served and had not complied with earlier procedural timelines.

The motion to strike was dismissed, leaving the limitation defence to be determined on a fuller evidentiary record at summary judgment or trial.

During a criminal trial involving allegations that the accused pointed a firearm and uttered threats at a children's birthday party, the Crown sought to admit prior inconsistent statements made by four witnesses as substantive evidence under the principled exception to the hearsay rule.

The witnesses recanted their earlier police statements at trial and denied seeing a firearm.

The court considered whether the prior statements met the necessity and threshold reliability requirements under the principled approach to hearsay.

Finding that the witnesses were available for cross-examination, that accurate records of their statements existed, and that the surrounding circumstances provided sufficient indicia of reliability, the court admitted the prior statements for the truth of their contents.

The court also admitted certain spontaneous utterances made during the incident under the res gestae exception to the hearsay rule.

Following a family law trial, the court determined custody, access, and support issues concerning the parties’ child.

The applicant was granted final custody, while the respondent father received structured unsupervised access including alternate weekends, religious holidays, and progressively increasing summer access.

The court continued an existing restraining order with exceptions to facilitate parenting exchanges and limited communication concerning the child.

The court found that the applicant was no longer entitled to spousal support after January 1, 2012 and dismissed the respondent’s claim for spousal support.

Given the respondent’s disability and subsistence income from ODSP and CPP, the court ordered reduced child support of $50 per month and rescinded accumulated support arrears.

Following dismissal of a wrongful dismissal action after a four-day trial, the court determined the costs consequences where the defendant had abandoned a counterclaim at the commencement of trial.

The plaintiff sought partial indemnity costs for preparation relating to the counterclaim, which had required trial preparation before its discontinuance.

Applying Rules 23.05 and 23.07 of the Rules of Civil Procedure and the discretion under s.131 of the Courts of Justice Act, the court held that the plaintiff was entitled to partial indemnity costs attributable to the counterclaim up to the point of discontinuance.

The court apportioned 25% of pre‑trial preparation to the counterclaim and set off those costs against the defendant’s entitlement following dismissal of the main action.

After adjustments and set‑off, the plaintiff was ordered to pay net costs to the defendant.

The plaintiff brought a motion to set aside Notices of Discontinuance previously filed against an insurer and the Superintendent of Financial Services in a motor vehicle accident action.

The discontinuances had been filed after another insurer accepted priority for accident benefits, leading the parties to believe it would also be responsible for uninsured motorist coverage.

Years later, that insurer reversed its position, creating uncertainty as to coverage and potential recovery.

The court held that although the discontinuances were not filed through inadvertence, they were based on a shared misapprehension of the factual circumstances regarding insurance responsibility.

Given the lack of significant prejudice to the former defendants and the risk of severe prejudice to the plaintiff, the court exercised its inherent jurisdiction to set aside the discontinuances.

The action was permitted to proceed against the insurer and the Superintendent.