SCJ 2013

The plaintiff grocery store sought an interlocutory injunction preventing the municipality from removing a lay-by used for valet parking on a public street during planned road improvements.

The court applied the test for interlocutory injunctions from RJR-MacDonald and held that the plaintiff failed to demonstrate a serious issue to be tried, irreparable harm, or that the balance of convenience favoured relief.

The alleged causes of action—injurious affection and an easement—could not support the requested injunction, as any remedy for injurious affection lay in damages before the municipal tribunal and no easement could exist over a public highway.

The court also held that potential economic losses from removal of the lay-by were compensable in damages and that municipal authority over public highways weighed heavily against judicial interference.

The defendant brought a motion to set aside a default judgment and writ of possession obtained by the mortgagee after the defendant defaulted on a second mortgage secured against residential property.

The defendant argued she did not recall receiving the originating process due to mental health issues and advanced a proposed defence alleging a fiduciary relationship involving a bank that referred her to the mortgage broker.

The court held the defendant failed to provide a credible explanation for the default, noting evidence that she had been personally served and that her counsel was aware of the motion date but chose not to attend or send an agent.

The court further found that the proposed defence lacked an air of reality because the mortgage relationship between the parties remained a straightforward debtor‑creditor relationship.

The motion to set aside the default judgment was dismissed.

On a motion to change a family law order, the moving party sought to reduce child support arrears to zero and have each parent assume their own childcare costs under a shared parenting arrangement.

The responding party sought retroactive child support, adjustments to ongoing support based on updated incomes, and a change from joint custody to sole custody or primary residence with her.

The court reviewed the parties’ historical incomes, recalculated support obligations for prior years, and determined retroactive support and arrears.

The court also addressed the sharing of section 7 expenses, including daycare and extracurricular activities, on a proportional basis under the Child Support Guidelines.

Although the court expressed serious concerns about parental conflict and the impact on the children, it declined to alter the existing custody arrangement without a fuller evidentiary record.

During a trial for aggravated assault and assault arising from an altercation at a stag and doe party, the accused brought a Charter s. 7 application seeking a stay of proceedings.

They argued that the Crown's continued prosecution amounted to an abuse of process because the Crown's main witness was contradicted by other Crown witnesses.

The court dismissed the application, holding that the Crown's decision to proceed did not amount to flagrant impropriety and that it is the role of the trier of fact to assess conflicting evidence.

Interim family law motion addressing parenting schedule and child support following separation.

The father sought maximum contact with the parties’ three children, but the court found equal parenting time unrealistic due to the children’s ages, school locations, and the distance between the parents’ residences after the father relocated.

A temporary parenting schedule was ordered providing the father alternating weekends, mid‑week access, and additional overnight time with the youngest child.

The court also requested the involvement of the Office of the Children’s Lawyer and ordered the father to pay table child support while both parties shared certain section 7 expenses.

Following the defendant’s successful summary judgment motion in a commercial dispute, the court determined the appropriate costs award.

The successful party sought more than $164,000 in costs relying on a prior offer to settle, or alternatively $141,852.34 on a partial indemnity basis.

The court considered Rule 57.02 factors including the amount claimed, complexity of the proceedings, the plaintiff’s conduct in prolonging the litigation, and the requirement that costs be fair and reasonable.

Although the plaintiff’s conduct contributed to delay and the defendant’s offer to settle was relevant, the court found the hours claimed excessive and reduced the award.

Costs were fixed globally at $100,000 inclusive of HST and disbursements.

A fatal motor vehicle collision occurred after a driver borrowed the vehicle owner’s car earlier in the day and later drove it while intoxicated, causing the death of a young driver.

The plaintiffs and the vehicle owner’s insurer disputed whether the owner or the insurer was responsible for paying an agreed amount of damages.

The court considered whether the driver had possession of the vehicle with the owner’s consent under s.192(2) of the Highway Traffic Act.

Applying appellate authority emphasizing that consent to possession—not consent to operation—governs vicarious liability, the court found the driver remained in possession of the vehicle with the owner’s consent throughout the day.

The owner was therefore vicariously liable for the driver’s negligence and the claim against the insurer was dismissed.

The plaintiff recruitment agency brought a motion for an interlocutory injunction to enforce a restrictive covenant against a former employee and his new employer.

The plaintiff sought to prevent the defendants from contacting any candidates or clients listed in its databases.

The court dismissed the motion, finding that the former employee was not a fiduciary and that the restrictive covenant was overly broad, ambiguous, and unenforceable because it was impossible to determine which names were in the databases.

The court also found that the plaintiff failed to establish irreparable harm or that the balance of convenience favoured an injunction.

The court sentenced an offender convicted of sexual assault and sexual interference against three complainants, all his granddaughters, arising from repeated sexualized touching and grooming conduct over several years within a family setting.

The court held that denunciation, deterrence, and separation from society were the dominant sentencing objectives in child sexual abuse cases involving a profound breach of trust by a family member.

Although the offender was elderly, had no prior record, had health issues, and faced hardship in custody, those mitigating circumstances justified only a modest reduction below the usual appellate range.

A conditional sentence was unavailable, and a penitentiary sentence of two and a half years concurrent was imposed together with ancillary orders.

A self‑represented former client brought an application seeking assessment of his former solicitor’s legal accounts under the Solicitors Act.

The accounts had been delivered more than 12 months earlier, requiring the applicant to establish “special circumstances” to permit assessment.

The court found special circumstances existed because the solicitor failed to promptly deliver properly signed and detailed accounts and sent several invoices by email long after services had been performed and after the retainer had ended.

Relying on appellate authority emphasizing the importance of the client’s right to assessment, the court exercised its discretion to permit the reference.

All legal accounts were ordered to be assessed by an Assessment Officer.

Following dismissal of a civil action for battery and negligence against healthcare providers and security personnel, the successful defendants sought costs.

The defendants had previously offered to consent to dismissal of the action without costs prior to trial.

The court held that, as the defendants were completely successful, they were entitled to recover their costs.

Costs were awarded on a partial indemnity basis and fixed in a lump sum.

The accused applied to exclude evidence obtained during the execution of a search warrant at their residence, alleging the warrant was invalid and the search violated s. 8 of the Canadian Charter of Rights and Freedoms.

They argued the information to obtain relied excessively on confidential informants whose reliability and motivations were insufficiently disclosed, and that the information failed to establish reasonable grounds linking the residence to drug trafficking.

The court reviewed the information to obtain under the Garofoli standard and held that the issuing justice had a sufficient evidentiary basis to authorize the warrant.

Surveillance evidence, corroborated informant information, and covert entries into a related suspect’s residence collectively established reasonable and probable grounds.

The applications to exclude the seized evidence were therefore dismissed.

Both parents brought motions to change a prior consent parenting order concerning custody, decision‑making, travel, and parenting arrangements for a child.

The court considered whether there had been a material change in circumstances sufficient to vary the order.

Evidence demonstrated persistent conflict and an inability to cooperate in joint decision‑making, including disputes about medical care, extracurricular activities, travel documentation, and scheduling.

The court concluded that joint decision‑making had become unworkable and granted the mother unilateral decision‑making authority following consultation with the father, while maintaining the existing parenting schedule.

The court also ordered retroactive and ongoing contributions for special or extraordinary expenses and an adjustment to guideline child support.

Contempt motions brought by both parties were dismissed despite findings that each had deliberately breached aspects of the order.

Media organizations sought certiorari to review and set aside a decision refusing access to a sealed information to obtain (ITO) used to obtain search warrants in a large criminal investigation.

The Crown argued that disclosure was prohibited by s. 193 of the Criminal Code because the ITO contained references to non-consensual wiretap interceptions.

The court held that s. 193 is an offence-creating provision and does not govern public access to court materials; instead, access to a sealed ITO is governed by s. 487.3 of the Criminal Code informed by the Dagenais/Mentuck test and the open court principle.

Alternatively, even if s. 193 applied, the disclosure fell within the exception in s. 193(2)(a) because an ITO constitutes evidence given in a criminal proceeding.

The prior order denying access was set aside and the applicants were permitted to proceed with their application to vary or terminate the sealing order.

The plaintiff, a 26-year employee, sued his former employer for constructive dismissal after he was removed from his long-standing position as a dock supervisor and offered a newly created, lesser role as a freight analyst.

The employer alleged performance issues, which the court found were unsubstantiated and part of a targeted effort to find fault.

The court held that the unilateral change in duties constituted a fundamental breach of the employment contract, amounting to constructive dismissal.

The court further found that the plaintiff was not required to mitigate his damages by accepting the demeaning new position in a toxic work environment.

The plaintiff was awarded 18 months' reasonable notice, but his claim for moral damages was dismissed.

The defendant bank moved to dismiss an action alleging fraudulent and negligent misrepresentation on the basis that the plaintiff breached the deemed undertaking rule under Rule 30.1 of the Rules of Civil Procedure by using documentary productions obtained in related litigation to commence a separate claim.

The court held that the plaintiff had indeed used documents obtained through discovery in the earlier proceeding to inform and support its decision to initiate the new action, thereby breaching the deemed undertaking rule.

However, considering the substantial overlap in parties, issues, and factual matrix between the two proceedings, and the minimal prejudice to the producing party, the court granted retroactive relief from the rule.

The court dismissed the bank’s motion to dismiss or stay the action but allowed the plaintiff limited permission to use the discovery materials in the new action.

Costs were awarded against the plaintiff due to its failure to seek leave before using the materials and its lack of candour in case management proceedings.

The applicants moved for the appointment of an Inspector as receiver/manager over 31 jointly owned commercial real estate corporations.

The court found significant evidence of oppressive conduct by the respondents, including the unauthorized placement of mortgages, misappropriation of funds for personal use, co-mingling of bank accounts, and failure to maintain proper books and records.

Concluding that the applicants' interests required protection and that the respondents had breached their contractual obligations, the court held it was just and convenient to appoint the receiver/manager.

The Attorney General of Canada moved to vary a Mareva injunction obtained by victims of terrorism seeking to enforce a U.S. judgment against Iran.

The motion concerned whether Iranian diplomatic property in Canada could remain subject to the injunction.

The court held that the plaintiffs had failed to make full and frank disclosure when obtaining the original ex parte orders, including failing to disclose unsuccessful attempts to attach similar Iranian diplomatic property in the United States and mischaracterizing relevant Canadian authority concerning the Vienna Convention and Crown prerogative.

Given the material nondisclosure and the principles of diplomatic immunity under the State Immunity Act and Foreign Missions and International Organizations Act, the court varied the Mareva order to exclude assets certified by the Minister of Foreign Affairs as diplomatic property.

Multiple defendants brought motions seeking the appointment of a litigation guardian for a self‑represented plaintiff pursuing four personal injury actions.

The court considered medical evidence from a psychiatrist assessing the plaintiff’s mental capacity under s. 6 of the Substitute Decisions Act, 1992 and Rules 7.01 and 7.04 of the Rules of Civil Procedure.

The expert concluded that the plaintiff suffered from a delusional disorder and was unable to understand information relevant to litigation decisions or appreciate the reasonably foreseeable consequences of those decisions.

The court found the plaintiff’s expectations of recovering approximately $26.9 million in damages to be grossly unrealistic and indicative of an inability to make rational litigation decisions.

On a balance of probabilities, the court determined the plaintiff was mentally incapable in respect of the litigation and required a litigation guardian.

The offender was convicted after trial of robbery arising from a planned home invasion robbery targeting jewellery vendors returning home with inventory worth approximately $250,000.

Although not present during the violent robbery, the offender aided the offence by renting a vehicle used in the operation and facilitating access to a building where stolen property was transported.

The court emphasized denunciation and deterrence given the violent home invasion involving masked perpetrators and serious psychological harm to the victims.

A conditional sentence was found unavailable because the offence constituted a serious personal injury offence within the meaning of the Criminal Code.

Considering parity with other participants, mitigating factors including the offender’s lack of criminal record, limited role, pre‑trial custody, restrictive bail conditions, and immigration consequences, the court imposed a custodial sentence of 18 months.