SCJ 2013

A secured creditor applied for the appointment of a receiver over a group of integrated technology companies operating in Canada and the United States following defaults under a loan agreement and the expiry of a forbearance arrangement.

The creditor also sought approval of a stalking horse asset purchase agreement and sales process.

The court found the debtors insolvent and concluded that appointing a receiver under s. 243 of the Bankruptcy and Insolvency Act and s. 101 of the Courts of Justice Act was just and convenient, particularly to facilitate a cross-border restructuring and prevent fragmented enforcement actions by creditors.

Applying the principles governing receiver sales from Royal Bank of Canada v. Soundair Corporation, the court approved the stalking horse process and sealed confidential commercial appendices containing sensitive information.

Orders appointing the receiver, approving the sales process, and sealing the confidential materials were granted.

Following the breakdown of a 22‑year marriage, the court determined the quantum and duration of spousal support.

The applicant sought approximately $2,700 per month based on the Spousal Support Advisory Guidelines, while the respondent argued he could afford only $800–$1,000 per month due to financial obligations.

The court found the applicant entitled to support under the Divorce Act and the Family Law Act and rejected the respondent’s arguments for imputing income to her, accepting evidence that she had made extensive efforts to obtain employment.

Considering the parties’ circumstances, including the respondent’s income, debts, and ongoing support for adult children, the court ordered spousal support slightly below the guideline range.

Retroactive support was also awarded applying the principles in Kerr v. Baranow.

The appellant father appealed a decision of the Ontario Court of Justice dismissing his motion to vary a separation agreement governing child support obligations and quantifying arrears for special expenses.

The father argued that a material change in circumstances existed due to a decline in his income and an increase in the mother’s means, and that the trial judge erred by failing to adjust his support obligations accordingly.

Applying the principles from Willick v. Willick and the deferential appellate standard described in Housen v. Nikolaisen and Hickey v. Hickey, the court held that the alleged financial deterioration was foreseeable and largely the result of the father’s own choices regarding employment and business ventures.

Because the circumstances relied upon were apparent at the time the agreement was executed and did not constitute a qualifying material change, the refusal to vary the agreement was upheld.

The respondent mother’s cross‑appeal seeking trial costs was also dismissed, as the costs determination fell within the trial judge’s discretion.

Following earlier estate litigation and an unsuccessful appeal concerning the beneficiaries of an estate and a notice of objection to the issuance of a certificate of appointment of estate trustee, the respondents sought further costs against the applicant.

The applicant had failed to withdraw his notice of objection despite explicit direction from the Court of Appeal and required additional steps by the respondents to have the registrar remove it.

The court considered the costs discretion under s.131 of the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure.

While the applicant’s conduct justified a costs award, the court found it did not rise to the level of sanctionable behaviour warranting elevated costs.

Costs were therefore awarded on a partial indemnity basis.

The father brought a motion for contempt after the mother unilaterally suspended court‑ordered access following two incidental encounters between the child and a third party referenced in the prior access order.

The mother asserted the encounters breached the order and raised concerns about the child’s emotional well‑being and moral objections to the relationship involving the third party.

The court held that the order did not prohibit chance encounters and that the father’s conduct did not breach the access restriction.

The mother’s refusal to facilitate four scheduled visits constituted a deliberate breach of the 2008 access order.

The court found the mother in contempt, ordered four make‑up access weekends, but declined to impose a fine while reserving costs.

The mother brought a motion to change seeking sole custody and a variation of the father's access schedule to accommodate the child's minor hockey schedule.

The parties had previously entered into a separation agreement providing joint custody and alternate weekend access with the father, who resided a significant distance away.

The court held that the agreement's flexibility clause did not permit the mother to unilaterally cancel the father's access to accommodate extracurricular activities.

Given the limited parenting time available to the father and the absence of evidence that the child could not continue playing hockey if some games were missed, the court declined to vary the regular access schedule.

The court maintained the existing access arrangement with a limited exception for a specific tournament weekend and granted the father alternating March Break access beginning in 2014.

Competing motions arose in estate litigation challenging the validity of a deceased's remarriage and seeking declarations affecting the validity of a prior will.

The plaintiffs sought to amend the statement of claim to abandon damages and pursue declaratory relief, add the estate as a defendant, replace the litigation guardian, obtain disclosure of medical and capacity records, and adjust the timetable.

The defendants opposed and moved for security for costs, arguing the litigation guardian had relocated outside Ontario and that substitution of another guardian was an attempt to avoid security obligations.

The court granted leave to amend the claim and add the estate, but imposed terms including payment of costs thrown away and substantial security for costs.

Security for costs of $100,000 and additional security for wasted costs were ordered before further steps could be taken.

Following a successful medical negligence trial, the plaintiffs sought costs after achieving complete success on liability and damages of $190,000.

The plaintiffs had made a Rule 49 offer of $150,000 inclusive of prejudgment interest prior to trial and argued that the judgment exceeded the offer by 31%, entitling them to substantial indemnity costs from the offer date.

The defendant argued the claimed costs were disproportionate to the damages and that agreeing to damages prior to trial prevented a determination that the offer had been beaten.

The court found the plaintiffs had repeatedly attempted settlement and that the defendant displayed intransigence in proceeding to trial despite the standing offer.

Applying the principles of fairness, reasonableness, and the reasonable expectations of the parties, the court awarded the plaintiffs their full claimed costs and disbursements.

The accused, charged with historical sexual offences including gross indecency, brought pre-trial applications seeking to declare former s. 157 of the Criminal Code invalid under s. 15 of the Charter and s. 1(b) of the Bill of Rights.

He also sought a stay of proceedings under ss. 7 and 11(a) of the Charter due to delay in being informed of the specific offences.

The court dismissed the applications, finding that the Charter did not apply retrospectively to the historical offences, the former Code provisions did not violate the Bill of Rights, and the delay was largely attributable to the defence's tactical decisions without establishing prejudice to fair trial interests.

The plaintiff sought return of a commercial lease deposit after an agreement to lease premises for a spa/fitness centre failed because the proposed use, which included massage services, was not permitted under existing zoning.

The lease contained a condition requiring the tenant to obtain the necessary licence within four months.

The court held that the intended use included massage services and therefore required a holistic centre licence, which could not be obtained because zoning did not permit that use at the relevant time.

The landlord had warranted zoning compliance and was therefore in breach when the agreement was executed.

The court rejected arguments that the tenant misrepresented the intended use, waived the condition, or was estopped from relying on it, and ordered return of the deposit.

On an interim parenting motion involving a young child, the court was asked to determine temporary custody and access in the context of highly conflicting allegations including abuse, parental alienation, and interference with access.

Police and child protection investigations had occurred, but the evidentiary record remained limited and untested.

Applying the best interests of the child analysis, the court emphasized stability, the importance of maintaining the status quo on interim motions, and the need to minimize parental conflict while preserving meaningful contact with both parents.

Temporary custody was granted to the mother with structured access to the father and restrictions relating to the paternal grandfather.

The court also ordered the involvement of the Office of the Children’s Lawyer to assist in determining final custody and access issues.

A motion arose in bankruptcy litigation concerning whether portions of a trustee’s report disclosed privileged communications from a prior joint retainer between the trustee and a creditor.

The creditor argued the materials were protected by solicitor‑client privilege, settlement privilege, and common interest privilege and sought to prevent their disclosure.

The court held that, in a dispute between former joint clients over removal of counsel, solicitor‑client privilege does not apply between the clients themselves, allowing the full record to be considered on that motion.

However, for the trustee’s broader motion for advice and directions involving third parties, several documents remained privileged because privilege jointly held by co‑clients cannot be unilaterally waived.

The court therefore ordered certain materials sealed for the removal motion but redacted from the public record for other proceedings.

After a trial concerning a commercial lease dispute, the plaintiff municipality obtained judgment for damages and the defendant’s substantial counterclaim was dismissed.

The court addressed the issue of costs following written submissions from the plaintiff and no submissions from the defendant.

The court considered the discretion under s. 131 of the Courts of Justice Act, the proportionality principle, and the effect of Rule 76 of the Rules of Civil Procedure regarding simplified procedure.

Although the plaintiff sought more than $68,000 in partial indemnity costs, the court held that the amount was disproportionate to the recovery and complexity of the case.

The court fixed costs at $40,000 inclusive of HST and disbursements.

The plaintiffs sought leave to appeal a case management judge's order that amended the definition of an Ontario global class by removing members who participated in a court-approved settlement of parallel U.S. proceedings.

The plaintiffs argued the judge lacked jurisdiction, was barred by issue estoppel, and erred in recognizing the U.S. settlement without evaluating its merits.

The Superior Court of Justice dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no palpable or overriding errors in the motion judge's exercise of discretion or application of international comity principles.

Criminal trial for importing marijuana into Canada and possession of marijuana for the purpose of trafficking.

Border officers discovered approximately 150 pounds of marijuana in duffel bags hidden in the sleeper compartment of a commercial truck entering Canada, along with US$23,000 concealed under a passenger seat.

The accused claimed a stranger had placed the bags in his truck while he briefly left it unlocked and that he did not know their contents.

The court rejected the explanation and held that the accused either knew the contents or was willfully blind, having accepted payment and failed to make obvious inquiries.

The Crown proved the essential elements of both offences beyond a reasonable doubt.

The defendants moved under Rule 24 of the Rules of Civil Procedure to dismiss a long‑standing action for delay or, alternatively, to terminate an interim order freezing a bank account.

The dispute concerned whether certain real property and a bank account were held in trust for the estate of a deceased parent or beneficially owned by two siblings who held legal title.

The action had been commenced more than fourteen years earlier and virtually no steps had been taken to advance it, allegedly due to related estate litigation in the Philippines.

The court found no continuing justification for maintaining the freeze order on the bank account, particularly given the lack of evidence supporting the alleged trust claim and the hardship imposed on the defendants.

The freeze order was vacated and the plaintiffs were ordered to set the matter down for trial within 30 days, failing which the action could be dismissed and the certificate of pending litigation vacated.

The defendants moved to stay the plaintiff's action on the basis that the dispute was subject to an arbitration agreement contained in a Share and Asset Purchase Agreement.

The plaintiff had commenced an action claiming oppressive conduct regarding the calculation of EBITDA, which affected the purchase price of the remaining shares.

The court found that it was arguable the dispute fell within the arbitration clause, which covered disputes over any amount shown in an EBITDA report.

The action was stayed pending the arbitrator's determination of jurisdiction and the merits.

The plaintiff brought a motion for leave to amend his Statement of Claim to add personal defendants and an alternative claim for an oppression remedy.

The original claim was based on a promissory note, which the defendant alleged was a forgery.

The court dismissed the motion, finding that the original pleading contained no facts to support an oppression remedy, and the proposed amendment constituted a new cause of action for which the limitation period had expired.

The plaintiff successfully sued the defendant for defamation and obtained an injunction prohibiting the defendant from communicating about him.

The defendant breached the injunction by communicating with a Member of Parliament, claiming it was an act of conscience, and was found in civil contempt.

The court sentenced the defendant to a 90-day conditional sentence with house arrest, followed by 18 months' probation and 200 hours of community service, finding that jail was not necessary.

The defendant was also ordered to pay substantial indemnity costs of $24,377.41.

A mother sought custody, child support, retroactive support, section 7 expenses, and enforcement remedies after the father failed to participate in the proceedings and failed to pay support following separation.

The court imputed income to the father at $60,000 during periods where he had the capacity to work as a journeyman electrician and later used his Ontario Disability Support Plan income to calculate ongoing support.

Retroactive child support and section 7 expenses were awarded along with ongoing support obligations.

To secure payment of arrears and future support, the court ordered the transfer and vesting of one-half of the father’s locked-in RRSP pursuant to s. 66(4) of the Pension Benefits Act.

The father was also ordered to obtain life insurance naming the child as beneficiary to secure ongoing support.