SCJ 2013

The parties returned to court following a prior parenting judgment to determine whether the father’s parenting time met the 40 percent threshold for shared custody under s. 9 of the Federal Child Support Guidelines.

The court reviewed jurisprudence on calculating parenting time and concluded that where a parenting order sets precise start and end times, access should be calculated in hours rather than days to avoid inaccurately deeming parenting time.

Applying the clarified parenting schedule and accounting for holidays, school time, and vacation allocations, the court determined that the father exercised approximately 32.6 percent of parenting time in 2013 and would not reach 40 percent even with potential adjustments.

As the threshold for shared custody was not met, child support was to be determined under s. 3 of the Guidelines.

The father was ordered to pay table child support of $919 per month retroactive to September 1, 2012, with section 7 daycare expenses recognized.

Following an earlier ruling converting an application into an action due to material factual disputes and an incomplete evidentiary record, the court addressed costs.

The successful responding party sought substantial or full indemnity costs exceeding $37,000, arguing the proceeding had been unnecessary.

The court applied the factors under Rule 57.01 of the Rules of Civil Procedure and found the claimed costs excessive in light of the relatively straightforward issues and inflated hourly charges and time entries by junior counsel.

While the successful party was entitled to costs, the court reduced the requested amount significantly and declined to award any costs to the unsuccessful party.

Costs were fixed at a reduced sum payable by the unsuccessful party.

The offender was convicted of four counts of fraud over $5000 after defrauding four victims of a total of $261,000 by falsely posing as a wealthy investor and philanthropist.

The court found the offender's cultivation and breach of the victims' trust to be a significant aggravating factor.

The offender was sentenced to 12 months' imprisonment (reflecting 18 months less 6 months' pre-trial credit), followed by two years' probation.

The court also ordered restitution of $172,000 and imposed a fine in lieu of forfeiture in the same amount, with a consecutive two-year sentence in default of payment.

The plaintiffs brought a motion under rule 37.14(1) of the Rules of Civil Procedure to set aside a registrar’s order dismissing their motor vehicle accident action as abandoned under rule 48.15 and to extend time for service of an amended statement of claim on an additional defendant.

Applying the Reid factors, the court considered whether the delay was adequately explained, whether the dismissal resulted from inadvertence, whether the motion was brought promptly, and whether the defendants would suffer prejudice.

The court found that the delay was largely attributable to the plaintiffs’ lawyer’s mental health issues and constituted inadvertence rather than a deliberate decision to abandon the claim.

Although the delay was significant, the plaintiffs rebutted the presumption of prejudice and the defendants failed to establish actual prejudice.

Balancing the interests of finality with the principle that actions should be decided on their merits, the court set aside the dismissal and validated late service on the defendant.

The applicant mother brought a motion to enforce unsigned minutes of settlement that were negotiated to vary a 2008 separation agreement.

The respondent father refused to sign the minutes after his renovation business failed, arguing a material change in circumstances and an unresolved issue regarding the child's allergies.

The court found that no final agreement was reached and declined to enforce the draft minutes, applying the Nigris factors.

Instead, the court varied the child support obligations based on the father's reduced imputed income and established a comprehensive access and holiday schedule.

A debtor company operating a glazing and glass manufacturing business brought a motion under s. 50.6 of the Bankruptcy and Insolvency Act seeking approval for debtor‑in‑possession (DIP) financing and an interim financing charge during notice of intention proceedings.

The secured creditor opposed the proposed financing, arguing that the company was not viable and that the charge would prejudice its security position.

The court considered the statutory factors under s. 50.6, including the likelihood of a viable proposal, the trustee’s report, the nature of the debtor’s assets, and potential prejudice to creditors.

Finding that the business would cease operations without interim funding and that the prejudice to the secured creditor was minimal relative to the benefits of continued operations, the court approved a first tranche of DIP financing and granted a corresponding interim financing charge.

Costs ruling following a summary judgment motion in an insurance dispute.

The moving party successfully obtained summary judgment dismissing claims for wrongful infliction of mental distress, bad faith, and aggravated, punitive, and exemplary damages totaling $1.2 million, but failed to dismiss the primary claim for breach of contract.

The court held that both parties achieved partial success on the motion.

Considering the divided success and the parties’ written submissions, the court exercised its discretion to make no costs award.

Following a family law application involving custody, decision‑making authority, schooling, and child support, the court determined costs.

The court found that success on the underlying application was somewhat divided but that the applicant was more successful overall, having obtained confirmation of sole custody and final decision‑making authority as well as an appropriate level of child support.

The court also noted that some of the relief was effectively consented to by the respondent at the hearing.

After considering the parties’ settlement offers and the factors under Rule 24(11) of the Family Law Rules, the court ordered the respondent to pay costs to the applicant.

Costs were fixed at $6,200 inclusive of disbursements and taxes, payable forthwith.

In a certified class action arising from the termination of automobile dealerships following the 2009 automotive industry restructuring, the plaintiff brought a Rule 30 motion seeking production of documents withheld on the basis of solicitor‑client privilege by a non‑party dealers’ association.

The court reviewed 211 disputed documents in camera to determine whether they constituted privileged legal advice or merely legal information.

Applying the distinction between general legal information and particularized legal advice concerning rights, duties, or liability, the court found that many communications concerned general information about potential bankruptcy proceedings under the CCAA rather than legal advice.

Of the documents reviewed, 60 were held to be privileged while the remainder were ordered produced.

The decision clarifies the analytical distinction between legal advice and legal information for purposes of solicitor‑client privilege in document production disputes.

Following dismissal of a negligence action against an insurance broker relating to failure to advise about optional income replacement benefits under the Statutory Accident Benefits Schedule, the defendants sought costs.

The court considered factors under s. 131(1) of the Courts of Justice Act and rule 57.01 of the Rules of Civil Procedure.

The plaintiff argued the case raised novel issues and that access to justice considerations should reduce the award, but the court rejected those submissions, finding the issues were not novel and that adverse costs are a normal consequence of unsuccessful litigation.

Applying rule 49 settlement principles, the court awarded partial indemnity costs up to November 18, 2010 and substantial indemnity costs thereafter, subject to a reduction in claimed trial preparation hours.

The accused, a vocal music teacher, was charged with sexual assault, sexual interference, and invitation to sexual touching involving a 10‑year‑old student at a school.

The complainant testified to multiple assaults occurring during after‑school detentions in the music room.

The trial judge applied the principles in R. v. W.(D.) and assessed both credibility and reliability of the evidence.

Although the complainant was found credible and clearly traumatized, objective evidence regarding class schedules, the physical layout and accessibility of the classroom, and inaccuracies in the complainant’s recollection raised significant reliability concerns.

These factors created a reasonable doubt as to whether the alleged assaults occurred as described.

The applicant sought declarations that operational policies adopted under the Workplace Safety and Insurance Act were unconstitutional and contrary to s. 8 of the Canadian Charter of Rights and Freedoms.

The issue before the court was whether the Superior Court had jurisdiction to determine the matter by application or whether it had to proceed as a judicial review before the Divisional Court.

The court held that the impugned policies constituted the exercise of statutory power under the Judicial Review Procedure Act.

Because the applicant sought only declarations regarding the legality of those policies and no civil action was pending, the matter properly fell within the jurisdiction of the Divisional Court by way of judicial review.

Following a motion concerning prospective and retroactive spousal support, the court addressed the issue of costs.

The applicant had been awarded interim spousal support of $7,000 per month retroactive to April 1, 2012.

The respondent argued that a prior offer to settle was more favourable than the motion outcome and should affect costs under Rule 18 of the Family Law Rules.

The court found the offer was not more favourable because it involved a lower monthly support amount and delayed payment of arrears.

Costs of $5,000 on a partial indemnity basis were therefore awarded to the applicant under Rule 24(11) of the Family Law Rules.

The appellant appealed a conviction for driving with excess blood alcohol after entering a guilty plea.

He argued the plea was not informed because he relied on incorrect immigration advice that a conviction would not affect his immigration status in Canada.

After the conviction he learned the offence rendered him inadmissible to Canada as a foreign national and subject to removal proceedings.

The court held that a guilty plea must be voluntary, unequivocal, and informed, and in the unusual circumstances the appellant’s reliance on erroneous legal advice regarding immigration consequences meant he did not fully understand the consequences of his plea.

The appeal was allowed, the conviction quashed, and a new trial ordered.

In CCAA proceedings involving several related aerospace entities, the court considered a motion by the court-appointed monitor seeking approval of an adjudication process and determinations regarding claims asserted against a directors’ and officers’ charge.

The Ministry of the Environment filed claims for environmental remediation costs arising from pre‑filing contamination and anticipated a future director’s order against former directors and officers.

A law firm representing certain directors and officers also filed contingent contribution and indemnity claims.

The court held that the environmental claims and related indemnity claims did not constitute liabilities incurred by directors and officers after the commencement of the CCAA proceedings within the meaning of s. 11.51 of the Companies’ Creditors Arrangement Act.

Allowing such claims to access the directors’ charge would improperly alter creditor priorities and indirectly elevate unsecured environmental claims over a secured lender.

The accused appeared for sentencing after a jury conviction for trafficking a small quantity of crack cocaine and possession of proceeds of crime arising from an undercover police “opportunity drug buy.” The Crown sought a custodial sentence of eight months, emphasizing denunciation and deterrence, while the defence sought a conditional sentence.

Applying the principles of sentencing under ss. 718–718.2 and 742.1 of the Criminal Code, the court considered the offender’s youth, absence of prior record, stable employment history, and the very small quantity of drugs involved.

Although trafficking in crack cocaine is a serious aggravating factor, the court found minimal risk of reoffending and concluded that community supervision would not endanger the safety of the community.

A conditional sentence was imposed to balance denunciation, deterrence, and rehabilitation.

The accused was charged with attempted murder and aggravated assault after attacking his former common-law spouse's new partner with a machete.

The accused admitted to the physical act but denied having the specific intent to kill, claiming he only intended to injure the victim before committing suicide.

The court rejected the accused's testimony, finding that his prior writings, preparations, and actions demonstrated a clear, deliberate plan to kill the victim.

The accused was found guilty of attempted murder.

Following a motion seeking dismissal of the plaintiff’s action for non‑compliance with prior court orders and seeking payment of cancellation fees arising from missed defence medical examinations, the court addressed the issue of costs.

The earlier motion had resulted in partial relief: the court declined to dismiss the action but ordered the plaintiff to attend defence medical examinations, pay cancellation fees, and clarify certain undertakings.

Considering the divided success of the parties and the plaintiff’s non‑compliance with prior orders, the court concluded that neither side achieved sufficient success to justify a costs award.

The court also declined to award costs to counsel for the Public Guardian and Trustee due to limited involvement and communication issues leading to the attendance.

The court therefore ordered that there be no order as to costs.

The Crown brought an application for bail review after the accused’s original surety withdrew and the justice of the peace permitted substitution of a new surety without vacating the recognizance.

The Crown argued that once the accused was rendered into custody by a surety under s. 766 of the Criminal Code and committed to prison, the recognizance was vacated and a new bail hearing was required under s. 769.

The court agreed with the reasoning in recent jurisprudence rejecting the view that simple substitution of a surety is available after committal.

The court held that once an accused is rendered and committed to custody, a new judicial interim release hearing must occur and the substitution procedure in s. 767.1 is unavailable.

The court further held that the Crown is entitled to notice and the opportunity to make submissions on applications involving substitution or assessment of sureties.

Following a jury trial dismissing claims for assault, false arrest, false imprisonment, and negligent police investigation arising from an altercation at a shopping centre, the successful defendants sought costs.

The action had involved a 14‑day trial and earlier motions with costs reserved to the trial judge.

The court considered the seriousness of the allegations, the significant damages claimed, and the time required to defend the action.

Although the police defendants argued for a higher scale of costs due to allegations of bad faith and fraud, the court treated all claims as falling within the partial indemnity scale.

Costs were awarded to both groups of defendants in the amounts requested.