SCJ 2013

In a civil action alleging negligent investment advice and related wrongs, the moving defendants sought directions under Rule 34.14 of the Rules of Civil Procedure following an adjourned examination for discovery of the plaintiff.

They argued that the examination had been improperly interrupted by excessive objections and instructions not to answer by opposing counsel.

After reviewing the transcript, the court found that although a number of objections had been raised, they did not amount to an abuse of the discovery process.

While the court criticized two instances of uncivil and sarcastic conduct by counsel during the examination, it concluded the examination had not been rendered futile and could continue rather than being restarted.

Costs were awarded to the moving defendants on a partial indemnity basis.

Following a jury trial arising from a motor vehicle accident in which the plaintiff recovered $794,603 in damages, the court determined the appropriate costs award.

The plaintiff sought partial indemnity costs to the date of an offer to settle and substantial indemnity costs thereafter under Rule 49.10 of the Rules of Civil Procedure.

The defendants argued the plaintiff’s legal fees and disbursements were excessive, including the use of two senior counsel and multiple expert reports.

The court found the litigation complex and lengthy, noting the plaintiff’s complete success at trial and the defendant’s failure to make reasonable settlement offers.

Applying the discretion under s.131 of the Courts of Justice Act and Rule 57 principles, the court fixed costs significantly in favour of the plaintiff while disallowing certain expert disbursements for witnesses not called at trial.

The applicant brought a motion seeking an extension of an ex parte restraining order against her spouse under family law proceedings.

The order had temporarily prevented the respondent from attending the matrimonial home.

The respondent opposed the extension and alleged the motion was intended to remove him from the home rather than address safety concerns.

The court found the alleged threats constituted verbal conflict within a volatile marital relationship but were unlikely to result in violence given the parties’ history and absence of prior violence.

The court concluded there was insufficient justification to continue the restraining order.

The accused was charged with possession of cocaine for the purpose of trafficking.

Six days before the scheduled trial, the defence brought a Charter application seeking to exclude the drugs and money seized, but failed to file an Application Record or Book of Authorities as required by the Criminal Proceedings Rules.

The Crown brought an application to dismiss the defence's Charter application under Rule 34.03.

The court granted the Crown's application, finding that the defence's non-compliance with the rules was serious and prejudicial to the Crown, the history of the proceedings showed numerous missed opportunities to bring the application, and the Charter application itself had little to no merit.

Costs decision following a family law motion concerning temporary custody, parenting schedule, and interim child and spousal support.

The moving party sought costs after obtaining disclosure orders, an interim parenting schedule, and interim support.

The court found the responding party acted unreasonably by failing for years to file an answer or financial statement, ignoring disclosure requests, and unilaterally reducing support payments.

The court emphasized the obligation under the Family Law Rules to make timely disclosure and promote the primary objective of resolving cases justly and efficiently.

The moving party was found to be the more reasonable litigant and entitled to costs.

Following a 14‑year marriage and separation, the parties disputed custody, access, spousal support, and equalization of net family property.

The court found the father had been the primary caregiver since separation and that the child was thriving in his care.

Concerns were raised about the mother’s past mental health incidents, instability in housing and employment, and prior difficulties cooperating with supervised access arrangements.

Applying the best interests of the child test, the court awarded sole custody to the father with limited but unsupervised access to the mother, together with phone and Skype contact.

The court imputed income to both parties and ordered spousal support at the low end of the Spousal Support Advisory Guidelines, with a modest equalization payment payable by the respondent.

In receivership proceedings brought in aid of execution against a judgment debtor, the court considered a motion by the court-appointed receiver for directions regarding enforcement steps and the disposition of certain assets.

The receiver sought approval to sell the debtor’s interest in a jointly owned matrimonial home under the Partition Act, clarification regarding ownership of a cottage property, compliance with outstanding information requests, and approval of the receiver’s reports.

The court held that the spouse opposing sale failed to demonstrate circumstances of oppression, malice, or vexatious intent that would justify refusing the statutory right to partition or sale.

The court ordered the sale of the debtor’s interest in the matrimonial home, directed the parties to provide requested information to the receiver, scheduled a hearing regarding ownership of the cottage and related indebtedness issues, and approved the receiver’s reports.

The plaintiffs sought declaratory relief confirming that they retained a valid and subsisting mortgage after a loan secured by assignment of that mortgage had been sold to a third party.

The court found that the requested declaration would affect the rights of a mortgagor that was not a party to the proceeding, making such relief inappropriate.

The court also concluded that no viable cause of action existed between the plaintiffs and the remaining defendant.

The defendant’s counterclaim seeking repayment of the loan more than a decade after default was barred by the Limitations Act due to the long delay and absence of any demand.

Both the main action and the counterclaim were dismissed.

Following settlement of a family law motion to change concerning termination of child and spousal support, the remaining issue before the court was costs.

The applicant sought over $42,000 in costs arising from the respondent’s unsuccessful attempt to terminate support and related proceedings.

The court reviewed the parties’ conduct, the settlement outcome, and multiple offers to settle in accordance with s.131 of the Courts of Justice Act and Rule 24(5) of the Family Law Rules.

The court found the applicant’s position was not unreasonable and rejected a claim relating to income tax penalties as outside the scope of a costs determination.

Costs were awarded to the applicant in a reduced amount.

The plaintiffs brought a medical malpractice action following the death of a mother from postpartum hemorrhage and disseminated intravascular coagulation (DIC) hours after a caesarean section.

The plaintiffs alleged that the nurses, anaesthesiologist, and obstetricians breached the standard of care by failing to recognize and treat the bleeding earlier.

The court found that while the anaesthesiologist breached the standard of care by delaying notification to the obstetricians of the patient's deteriorating condition, this delay did not cause the patient's death.

The court concluded that even if the decision to operate had been made earlier, the patient would still have developed DIC and the fatal blockage would not have been prevented.

The action was dismissed without costs.

The insured sought reimbursement of defence costs incurred in responding to Human Rights Tribunal proceedings, arguing that information disclosed in a policy renewal application constituted notice of a claim under a “claims made and reported” liability policy.

The court held that the disclosure merely referenced the retention of outside counsel and did not objectively communicate a claim or potential claim to the insurer within the policy period.

The insurer had no duty to inquire further upon receiving the renewal application, as the obligation to provide notice rested on the insured.

The late notice deprived the insurer of opportunities to investigate, control the defence, and attempt early resolution, constituting actual prejudice.

Relief from forfeiture under s. 129 of the Insurance Act was unavailable because timely notice is a condition precedent to coverage under claims-made-and-reported policies.

The defendants brought a motion to strike portions of a fresh as amended statement of claim in an employment-related action seeking damages for breach of contract, wrongful dismissal, misrepresentation, quantum meruit, and unjust enrichment.

The court held that the pleading failed to disclose a reasonable cause of action against an individual corporate officer because it did not plead material facts showing independent misconduct separate from the corporation.

The court struck the claims against the individual defendant and dismissed the action as against him.

However, the court found sufficient pleaded facts to support the allegation that two corporate defendants could be treated as common employers.

The claim for unjust enrichment was also struck for failure to plead a tangible benefit retained by the defendants.

The plaintiff, a minor who suffered severe abuse by his biological parents, brought a civil action against various parties, including the police and CAS, alleging negligence in failing to protect him.

The plaintiff brought a motion under Rule 30.10 seeking production of the complete Crown Brief from the Ministry of the Attorney General and the police.

The court dismissed the motion against the Crown, noting the police already possessed the brief.

The court found the motion against the police was improperly brought under Rule 30.10 as they were parties, but proceeded to determine relevance under Rule 30.06.

The court held that the contents of the Crown Brief were relevant to what the police knew or ought to have known prior to the final assault, and declared the material producible.

A co-mortgagor brought a motion to set aside a default judgment obtained by a lender on a mortgage securing a $50,000 loan used by the co-defendant spouse for business purposes.

The moving party argued she misunderstood the deadline to file a defence and moved promptly after retaining counsel.

The court applied the principles governing the setting aside of default judgments, including whether the default was explained, whether the motion was brought promptly, and whether there was an arguable defence.

Although two proposed defences lacked merit, the court found that evidence suggesting the debt may have been paid in the co-defendant’s bankruptcy raised an arguable defence.

In the interests of justice and absent procedural prejudice to the lender, the default judgment was set aside and the defendant was permitted to file a defence.

The plaintiff sought certification of a proposed class action against an insurer relating to the performance of the Can‑Am segregated fund offered through multiple insurance contracts.

The plaintiff alleged breach of express or implied contractual terms requiring the fund to replicate the S&P 500 on a best‑efforts basis, as well as negligent misrepresentation in pre‑contract information folders.

The court held that only five insurance contracts contained an express “best‑efforts” term capable of supporting a breach of contract claim, and claims based on implied terms or collateral contracts were legally untenable due to statutory entire‑agreement provisions and the non‑contractual status of information folders.

Although negligent misrepresentation disclosed a cause of action, the court found that individual reliance, causation, and damages issues overwhelmed the common issues such that a class proceeding was not the preferable procedure.

Certification was therefore granted only for breach of express contractual terms for the five specified policy forms, subject to exclusion of statute‑barred claims.

In a family law trial concerning parenting time, the court considered a voir dire on the admissibility of hearsay statements allegedly made by the parties’ children to a counsellor.

The responding party sought to admit the statements for the truth of their contents.

Applying the necessity and reliability framework from R. v. Khelawon, the court found that statements from the two older children were not necessary because they were capable of testifying and there was no evidence that doing so would harm them.

Those statements were therefore inadmissible for the truth of their contents but admissible to show that the statements were made.

Statements from the youngest child were admitted for their truth because the child’s young age established necessity and the counsellor’s evidence satisfied threshold reliability.

Following an urgent family law motion permitting the sale of the matrimonial home without the respondent spouse’s consent, the successful applicant sought full recovery costs.

The respondent argued that costs should either not be awarded or be reserved to the trial judge.

The court held that under the Family Law Rules there is a presumption that the successful party receives costs at each step of the proceeding.

Deferring costs to trial was inappropriate where the motion had been decided and the applicant had succeeded.

Costs were fixed at $4,000 payable by the respondent, subject to potential reconsideration at trial if bad faith were later established.

Following settlement of a motion to change child support, the court determined the appropriate costs award.

The applicant had sought increased child support and arrears consistent with the Child Support Guidelines and had made several settlement offers more favourable to the respondent than the ultimate settlement.

The respondent resisted paying guideline support but ultimately agreed to retroactive and ongoing payments.

Applying Rule 24 of the Family Law Rules and considering the parties’ offers to settle and conduct, the court held that the applicant was the successful party.

Substantial indemnity costs were ordered in favour of the applicant.

The plaintiffs sought consent certification of a proposed securities class action alleging that the defendant mining company and certain officers misrepresented the scope and impact of water inflow problems at a Quebec gold mine, causing losses to purchasers of the company’s shares.

The court considered the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 and, given the parties’ consent and the evidentiary record, found that the statutory criteria were satisfied.

The plaintiffs also sought leave under Part XXIII.1 of the Securities Act to pursue statutory secondary market misrepresentation claims.

The court held that the action was brought in good faith and that there was a reasonable possibility of success at trial.

Certification and leave were granted.

In a national class action by terminated GM dealers against GMCL and their counsel, Cassels Brock & Blackwell (CBB), CBB brought third party claims against out-of-province local lawyers who provided independent legal advice to the dealers.

The out-of-province third parties brought motions to stay or dismiss the claims for lack of jurisdiction or forum non conveniens.

The court dismissed the motions, finding that the Ontario court had jurisdiction under the fourth Van Breda presumptive connecting factor because the Wind-Down Agreements, which required the independent legal advice, were made in Ontario and were sufficiently connected to the dispute.

The court also found Ontario to be the most appropriate forum.