SCJ 2013

The applicant, a failed refugee claimant from Sri Lanka, sought an emergency interim injunction in the Superior Court of Justice to stay his removal after the Federal Court dismissed a similar application earlier the same day.

The Superior Court dismissed the application, holding that it should defer to the Federal Court, which has primary jurisdiction over immigration matters and provides an effective remedy.

The court also found that the applicant failed to establish irreparable harm to meet the test for an injunction.

A commercial tenant applied under s. 20 of the Commercial Tenancies Act for relief from forfeiture after the landlord re‑entered the leased restaurant premises for non‑payment of rent.

The court considered the equitable principles governing relief from forfeiture, including the landlord’s prior acceptance of late rent payments and the absence of notice insisting on strict compliance.

Although the tenant admitted arrears for several months of rent, the court held that persistent late payment did not preclude equitable relief where the landlord could be compensated.

The existence of a pending sale of the property to a purchaser seeking vacant possession was not a sufficient intervening interest to defeat the tenant’s claim.

Relief from forfeiture was granted on conditions requiring payment of arrears, utilities, and agreed costs.

The parties separated after a 12-year marriage with four children.

The mother sought sole custody, limited access for the father, and significant equalization and support payments.

The court ordered joint custody, finding the mother had attempted to minimize the father's relationship with the children.

The court expanded the father's access and imputed an annual income of $40,000 to the mother, a qualified teacher, due to intentional underemployment.

The father was ordered to pay child support, a time-limited spousal support of $250 per month, and an equalization payment of $63,419.27, subject to deductions for credits and prior costs.

The offender was convicted of defrauding a fellow church member of $23,643 under the guise of an investment scheme.

The Crown sought a 90-day jail sentence, while the defence requested a conditional discharge.

The court emphasized the planning involved, the vulnerability of the victim, and the lack of recovery or remorse.

The offender was sentenced to 45 days of intermittent custody, followed by 18 months of probation, and ordered to pay full restitution.

Following partial minutes of settlement resolving parenting and certain support issues, the court conducted a trial to determine retroactive child support, retroactive and ongoing section 7 expenses, spousal support, property equalization, and entitlement to the child tax benefit.

The court accepted the applicant’s evidence regarding the historical residence of the children and ordered retroactive child support based on the respondent’s imputed income after he voluntarily left his employment.

The court also awarded retroactive section 7 expenses and directed the parties to share future extraordinary expenses equally.

Although entitlement to spousal support was established, no award was made due to the respondent’s child support obligations.

The court further ordered a modest equalization payment and granted a restraining order against the respondent.

The plaintiffs, representing the beneficiaries of Treaty 3, brought a proposed representation action against the Crown alleging breaches of the treaty's education provisions and breach of fiduciary duty.

The plaintiffs moved for authorization to proceed as a representation action under Rule 12.08.

The Crown moved under Rule 21 to dismiss the action as non-justiciable and for failing to disclose a reasonable cause of action.

The court granted the Crown's motion and dismissed the plaintiffs' motions, finding that the breach of fiduciary duty claim was untenable, the necessary parties (the 28 Indian bands) were not before the court, and the breach of treaty claim as pleaded was a non-justiciable political dispute about education policy and funding.

The applicant municipality successfully obtained an interlocutory injunction to prevent the respondents from blockading various development sites and successfully defended a motion to quash its by-laws.

The applicant subsequently sought its costs of the proceedings.

The respondents argued they were public interest litigants and that costs should be in the cause or paid by the province.

The court rejected these arguments, finding the respondents' unlawful conduct necessitated the litigation and they were not acting in the public interest.

The court awarded the applicant costs fixed at $350,000, significantly reducing the $887,000 claimed due to duplication, excessive time, and the exclusion of costs for a court-ordered consultation process.

The court determined costs following civil proceedings between the parties.

On consent, the plaintiffs were ordered to pay the defendant $107,998.61 in legal fees inclusive of GST and HST.

The court also ordered payment of disbursements in accordance with the defendant’s Bill of Costs, subject to reductions required under Tariff A of the Rules of Civil Procedure.

Hotel expenses were reduced to conform with Tariff A s. 21(3), and witnesses’ travel and parking expenses were ordered recalculated under Tariff A s. 21(2)(c), with all other disbursements approved.

The plaintiffs brought a motion seeking extensive documentary and oral discovery in a motor vehicle accident action and requesting that the defendants be prevented from bringing a summary judgment motion until discovery was completed.

The defendants argued that discovery should be deferred because they intended to move for summary judgment based on a limitations defence.

The court held that disclosure obligations under the Rules of Civil Procedure are not automatically suspended because a party intends to bring a summary judgment motion.

The court found that the requested disclosure was necessary for the plaintiffs to properly respond to any summary judgment motion and to prepare the case generally.

Most discovery relief was granted, including an order requiring a formal reply to a demand for particulars identifying the owner and lessor of the vehicle, but the request to prohibit the summary judgment motion was dismissed without prejudice.

The defendant moved to set aside an ex parte Mareva injunction that had frozen his assets pending trial.

The court held that the plaintiff failed to make full and frank disclosure of material facts when obtaining the injunction, including the existence of a prior written settlement agreement that could be dispositive of the claim and other misleading statements regarding the defendant’s financial circumstances.

Applying the principles governing Mareva injunctions and Rule 39.01(6) of the Rules of Civil Procedure, the court found the nondisclosure sufficient to rescind the order.

The court also declined to grant a fresh injunction, finding the plaintiff had not established a prima facie case or a genuine risk of dissipation of assets.

The defendant’s motion was granted and the plaintiff’s motion to continue the injunction was dismissed.

The accused was charged with possession of crack cocaine for the purpose of trafficking and possession of proceeds of crime.

He was stopped by police for a by-law infraction at a transit station, which escalated into an arrest and search incident to arrest after an officer observed him moving a bag of drugs.

The accused brought a Charter motion alleging violations of his ss. 8, 9, and 10(b) rights, arguing the police fabricated the grounds for arrest.

The court dismissed the Charter motion, finding the officer's account credible and that reasonable grounds existed for the arrest.

The accused was found guilty of possession for the purpose of trafficking and not guilty of possession of proceeds of crime.

The employer sought an interlocutory injunction restricting picketing during a lawful strike at one of its warehouse facilities.

The union’s picketing activities caused substantial delays for vehicles entering and exiting several warehouse locations, effectively disrupting operations despite remaining largely peaceful.

The court applied the interlocutory injunction framework from RJR‑MacDonald and considered the special context of labour disputes and the balance between property access rights and constitutionally protected expressive activity in picketing.

The court held that while employers are entitled to access their property, labour picketing may justify some degree of inconvenience and delay as part of the economic dynamics of a strike.

An injunction was granted permitting continued picketing but limiting the extent of delays in accessing the employer’s facilities.

The respondent in a family proceeding brought a motion to set aside a Certificate of Pending Litigation registered against residential property, arguing the applicant had no reasonable claim to an interest in the land.

The applicant asserted a constructive, resulting, or implied trust based on unjust enrichment arising from an eight‑year cohabitation during which she performed domestic and caregiving roles that allegedly enabled the respondent to focus on his business activities.

Applying the test under s. 103(6) of the Courts of Justice Act and the principles in Kerr v. Baranow, the court held that although the claim appeared weak, it was not devoid of merit and constituted a reasonable claim to an interest in land.

The court further exercised its equitable discretion to maintain the certificate, noting evidence that the moving party had previously engaged in sham transfers and asset shielding.

The motion to discharge the Certificate of Pending Litigation was dismissed.

In a first-degree murder prosecution, the Crown brought a Mohan application seeking to qualify a forensic psychiatrist as an expert to give opinion evidence regarding automatism.

The defence argued that the proposed expert’s methodology lacked reliability and that prior judicial criticism of his opinions should preclude qualification.

The court reviewed the admissibility criteria for expert evidence set out in R. v. Mohan, including relevance, necessity, absence of an exclusionary rule, and proper qualification.

While acknowledging some concerns about the expert’s prior reports and methodology, the court found that he possessed sufficient expertise in forensic psychiatry and that automatism is primarily a legal concept closely related to dissociative states recognized in psychiatry.

The expert was therefore qualified to give opinion evidence in forensic psychiatry, including on the issue of automatism.

The appellants appealed their summary convictions and sentences arising from a group assault and robbery at a massage parlour.

Liang argued his conviction was unreasonable and his sentence unfit; his appeal was dismissed as the verdict was supported by evidence and the sentence was appropriate for a violent group attack.

Loi argued he received ineffective assistance of counsel because his trial lawyer conceded his liability without instructions.

The court found that Loi's counsel made an unauthorized concession equivalent to a guilty plea, resulting in a miscarriage of justice.

Loi's appeal was allowed and a new trial ordered.

The applicant brought a motion to compel compliance with outstanding orders, for contempt, and to strike the respondent's Answer and Claim following chronic non-compliance with financial disclosure obligations.

The court found that the respondent had failed to purge his previous contempt and imposed a $300,000 penalty.

Due to the respondent's ongoing failure to comply with court orders and the Family Law Rules, the court struck his Answer and Claim, limiting his future participation in the proceedings, and awarded full indemnity costs to the applicant.

The applicant, a minority shareholder, brought a motion to remove the respondents' lawyer of record in an oppression application.

The lawyer had actively participated in key meetings leading to the applicant's termination and had jointly represented both the corporation and the majority shareholders.

The court granted the motion, finding that the lawyer was a material witness to critical events and that his joint representation of the corporation and the majority shareholders constituted an impermissible conflict of interest.

Following a lengthy family law trial after the parties’ separation, the court addressed divorce, custody and access, child and spousal support (including retroactive amounts), equalization of net family property, section 7 expenses, life insurance security for support, and various adjustment claims.

Joint custody with primary residence to the mother was ordered along with structured access.

The court determined the parties’ net family property and ordered a pension division at source rather than through equalization.

Retroactive and ongoing child and spousal support were fixed based on imputed and actual incomes, and the father was ordered to contribute to section 7 expenses.

Claims for occupation rent and reimbursement of certain expenses were dismissed, and improperly obtained private emails were ordered removed from the record.

During the early stage of a medical negligence jury trial, the defendants brought an oral motion to strike the jury notice and discharge the jury.

The motion arose after the plaintiffs proposed that evidence relating to liability be heard by the jury, while evidence relating to a limitation defence and the doctrine of special circumstances be heard only by the judge.

The court considered whether such compartmentalization of evidence would make the trial unworkable or compromise fairness.

Emphasizing the importance of the substantive right to a jury trial and the substantial onus required to strike a jury notice, the court declined to discharge the jury at that stage.

The judge adopted a “wait and see” approach, permitting the jury to be excluded for witnesses whose evidence related solely to the limitations issue while reserving the decision regarding witnesses whose evidence might overlap both issues.

The applicant father brought a motion to change a 2006 order to seek sole custody of his two sons, alleging severe parental alienation by the respondent mother.

The mother brought a cross-motion for joint custody and a new psychological evaluation.

The court accepted the psychological evaluation finding severe parental alienation by the mother, who had fostered an unhealthy dependence and involved the children in the litigation.

To repair the father-son relationship, the court awarded the father temporary sole custody with a period of no contact for the mother, followed by supervised access, and eventually transitioning to a shared week-about joint custody arrangement.

The mother's requests for a new evaluation and appointment of children's counsel were dismissed.