SCJ 2013

During a homicide trial, the Crown brought an application under s. 9(2) of the Canada Evidence Act to cross-examine a witness on a prior videotaped statement to police after she claimed to have no memory of the events or the statement.

The Crown also sought to admit the statement for the truth of its contents under the principled approach to hearsay.

The court found that despite the lack of an oath and the witness's intoxication, the videotaped nature of the statement and the opportunity for cross-examination provided sufficient threshold reliability.

The statement was admitted into evidence.

The defendants brought a motion seeking a stay of the Ontario action on the basis of forum non conveniens under section 106 of the Courts of Justice Act, arguing that Qatar was the more appropriate forum.

The action arose from allegations that airline employees failed to warn the plaintiff about local laws regarding alcohol consumption by Muslims, leading to the plaintiff’s arrest, imprisonment, and corporal punishment in Qatar after a flight incident.

Applying the principles from Club Resorts Ltd. v. Van Breda, the court held that the moving parties failed to demonstrate that Qatar was clearly a more appropriate forum.

Several factors—including the residence of the plaintiff and his medical witnesses in Ontario, the airline’s business presence in Ontario, and the plaintiff’s contractual connection to Ontario—supported maintaining the proceeding in Ontario.

The motion to stay the action was dismissed.

The defendant employer brought a motion to strike portions of a statement of claim alleging wrongful dismissal, mental distress, defamation, and punitive damages.

The court held that the pleading failed to comply with Rules 25.06 and 25.11 of the Rules of Civil Procedure because it contained unsupported claims for damages and lacked material facts necessary to support allegations of mental distress, punitive damages, and defamation.

The court emphasized that pleadings must include concise statements of material facts rather than bare legal assertions.

Instead of striking only certain paragraphs or ordering particulars, the court struck the entire statement of claim with leave to file a fresh pleading within 14 days.

Members of a church brought an application seeking an interlocutory injunction preventing a congregational meeting to vote on the dismissal of the senior pastor and requesting a mandatory order requiring the church to admit additional individuals to membership.

The dispute arose after church elders decided to limit consideration of new membership applications to those submitted before a specified date while simultaneously proposing to add twelve members prior to the vote.

The court held that although civil courts should be cautious when intervening in the internal affairs of religious organizations, intervention is appropriate where the process is unfair or contrary to principles of natural justice.

The court found the elders’ process unfair because it materially altered the membership composition while excluding other similarly situated applicants.

An injunction preventing the meeting was granted and certain additional individuals were permitted to submit their names for membership consideration.

Following the dismissal of the plaintiff's motion to certify a class action regarding copyright in land surveyors' plans, the parties could not agree on costs.

The successful defendant sought approximately $496,000, while the plaintiff argued for no costs or a maximum of $80,000, citing the novel point of law and public interest involved.

The court found that while the case raised a novel point of law, it did not involve a matter of public interest.

Applying the principles for fixing costs on a certification motion, the court awarded the defendant $200,000 inclusive of fees, disbursements, and taxes.

The plaintiffs brought a motion to amend their statement of claim to add their own automobile insurer as a defendant after learning during discoveries that the defendants were uninsured.

The proposed insurer argued the limitation period under the Limitations Act, 2002 had expired and that the plaintiffs failed to exercise due diligence in discovering the lack of insurance.

The court held that the plaintiffs had provided some evidence of due diligence in attempting to determine whether the defendants were insured, including inquiries to potential insurers and communications with the defendants.

Applying the principles governing amendments and the discoverability doctrine, the court concluded there was a triable issue as to when the plaintiffs discovered or ought to have discovered the lack of insurance.

The amendment was permitted, with leave granted to the insurer to plead a limitations defence.

Parents appealed orders arising from a child protection proceeding in which the children were made Crown wards on a motion for summary judgment.

The mother appealed the denial of a trial regarding her claim for access, arguing procedural unfairness and inconsistent endorsements in the record.

The father appealed the Crown wardship order, alleging procedural unfairness, denial of cross‑examination, and improper reliance on delay and outstanding criminal charges.

The court held that natural justice required that the mother be granted a hearing on the issue of access, particularly given conflicting decisions in the record and questions surrounding the circumstances of her lack of contact with the children.

However, the father failed to demonstrate a palpable and overriding error in the wardship decision, and his appeal was dismissed.

The plaintiff brought an action against the defendants for the monetary value of a 5% ownership interest in a radio station and for the return of capital injections she made to the station.

The defendants argued she lacked standing because the funds were advanced via corporate cheques from her companies.

The court rejected this defence, finding the defendants knew they were dealing with her personally.

The court awarded the plaintiff $83,915.75 against the corporate defendant.

The corporate defendant's cross-claim against the former owner for indemnity was granted.

Claims against the individual defendants were dismissed.

The applicant disputed a garnishment initiated by the respondent to enforce a lump-sum equalization payment and other obligations arising from a prior family law order.

The applicant argued the garnishment was premature and sought numerous offsets relating to alleged property damage, third-party debts, and other financial claims.

The court held that a garnishment hearing under Rule 29(19) of the Family Law Rules is limited to determining whether the underlying court-ordered debt exists and remains unpaid, and cannot be used to vary or expand the substantive order.

Most of the applicant’s alleged offsets were therefore rejected as procedurally improper, and the garnishment was permitted to stand.

The respondent’s motion for contempt was also dismissed, as the alleged breaches did not meet the high threshold for contempt and the order provisions were not sufficiently clear and unequivocal.

The defendant brought a motion arguing that the Ontario court lacked jurisdiction over the plaintiffs' claims regarding a trust and an Ontario condominium, or alternatively, that Michigan was the more appropriate forum.

The defendant also sought security for costs.

The court found it had jurisdiction because the trust property and alleged breach of fiduciary duty occurred in Ontario.

The court declined to stay the action for forum non conveniens, finding Michigan was not clearly more appropriate.

The request for security for costs was dismissed due to the defendant's delay in bringing the motion.

In a defamation action arising from blog posts referring to the plaintiff using a racially charged term, the plaintiff brought a motion to compel answers to numerous refusals and undertakings from the defendant’s examination for discovery.

The court considered the scope of permissible discovery under Rule 31.06(1) of the Rules of Civil Procedure and assessed the relevance of the disputed questions to issues including malice, fair comment, damages, and publication.

The court ordered the defendant to answer several questions relating to the factual basis for his fair comment defence, communications with media and on social media, potential witnesses, and information relevant to his limitation defence.

Certain questions were not required to be answered where they sought privileged information or were irrelevant to the issues in the libel action.

The accused brought an application under s. 520(1) of the Criminal Code to vary a judicial interim release order by removing a curfew condition.

The accused argued the Crown’s case had weakened due to new potential evidence and that trial delay justified permitting a normal social life pending trial.

The court held that the applicant had not demonstrated changed circumstances sufficient to justify the variation, particularly given the absence of evidence that he had pursued employment or schooling as previously contemplated.

The judge found that the secondary ground concerns underlying the earlier bail restrictions remained unresolved.

The application to delete the curfew condition was dismissed.

The moving defendants brought a motion to strike out the plaintiff insurers' claims of fraudulent misrepresentation and conspiracy under Rule 21.01(1)(b).

The plaintiffs alleged the defendants engaged in a conspiracy to submit fraudulent medical treatment and assessment claims.

The court found that the plaintiffs had sufficiently pleaded the material facts for fraudulent misrepresentation against the individual defendants, who could be held personally liable for tortious acts.

The court also declined to strike the conspiracy claims, holding that the applicability of the merger doctrine should be determined at trial and that the claims were properly based on unlawful acts under the Insurance Act and Criminal Code.

The motion was dismissed, though two plaintiffs were ordered to amend their pleadings to specify special damages for conspiracy.

The self-represented plaintiff brought a motion seeking leave to appeal an interlocutory order of the Superior Court of Justice, along with several additional forms of relief including declarations regarding prior procedural rulings, removal of opposing counsel, and dismissal of cost orders.

The court held that several requested remedies were outside its jurisdiction or unsupported in fact or law.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court found the plaintiff failed to demonstrate either a conflicting authority or a serious doubt about the correctness of the underlying order.

The authorities cited by the moving party were largely irrelevant to the narrow test governing leave to appeal interlocutory orders.

Leave to appeal was refused and the motion dismissed with costs.

In a guardianship application under the Substitute Decisions Act concerning the alleged incapacity of an elderly business owner, the applicant sought an order sealing the court file.

Corporate respondents involved in related automotive businesses also sought a confidentiality order allowing them to file documents with the court without disclosing them to certain co‑respondents, or alternatively an “eyes‑only” order limiting disclosure to counsel.

The court held that a sealing order was appropriate under s. 137(2) of the Courts of Justice Act given the sensitive medical, personal, and commercial information involved.

However, the requested confidentiality order preventing disclosure to opposing parties was rejected as contrary to fundamental principles of civil procedure and natural justice.

The court instead extended the deemed undertaking rule to protect confidential information while maintaining ordinary disclosure obligations between parties.

The court reviewed documents listed in a supplementary affidavit of documents to determine the validity of claims for solicitor-client privilege.

The documents consisted of communications between a principal of the plaintiff corporation and U.S. counsel.

The court held that most of the communications remained privileged; however, certain documents either were not privileged or had privilege waived due to the plaintiffs’ pleadings placing the receipt of legal advice in issue.

Where the pleadings raised the question of whether the plaintiffs had legal representation or transactional advice during the relevant period, privilege was found to be waived for specific communications.

The court ordered production of certain documents while maintaining privilege over the remainder.

The Crown applied for a review of a justice of the peace's order granting judicial interim release to the respondent.

The respondent's original surety had applied to be relieved of his obligations, resulting in a committal order under s. 766(1) of the Criminal Code.

A justice of the peace subsequently substituted a new surety without holding a new bail hearing, relying on R. v. Alexander.

The Superior Court held that a committal order vacates the underlying release order, necessitating a new bail hearing.

Furthermore, because the original surety was specifically named in the release order, the justice of the peace had no jurisdiction to amend the order to substitute a new surety.

The release order was quashed and a new bail hearing was ordered.

The accused was convicted of 13 firearms and drug-related offences, including possession of a loaded restricted firearm and possession of cocaine for the purpose of trafficking.

At sentencing, the court ruled that the accused's compelled testimony from an unrelated proceeding was inadmissible under s. 13 of the Charter.

The court also found that the increased mandatory minimum sentence did not apply because the Crown failed to provide proper notice.

The court imposed an effective sentence of 7 years imprisonment, but granted enhanced credit of 30 months for 27 months of pre-sentence custody due to exceptional custodial hardships, resulting in a net sentence of 4.5 years.

The applicant brought an application for directions under Rule 75.06(1) of the Rules of Civil Procedure to challenge the validity of a will and codicils based on undue influence and lack of capacity.

The respondents moved for summary judgment to dismiss the application, arguing the underlying claims were statute-barred.

The court dismissed the motion for summary judgment, holding that such a motion is generally not available in an application unless specifically authorized by a procedural order, and that the court could not achieve a full appreciation of the evidence at this early stage.

The plaintiff brought an action alleging negligence against accountants and a lawyer arising from tax planning involving a family trust created to facilitate the sale of shares in a technology company.

The defendants moved for summary judgment, arguing the claims were barred by limitation periods, unsupported by expert evidence, or defeated by illegality relating to the alleged backdating of the trust.

The court held that the record revealed numerous disputed factual issues, including the scope of the defendants’ retainers, the timing and legality of the trust’s creation, and the plaintiff’s knowledge of potential tax problems.

Applying the full appreciation test from Combined Air Mechanical Services Inc. v. Flesch, the court concluded that the evidentiary conflicts required the full forensic process of a trial.

Both summary judgment motions were dismissed with costs in the cause.