SCJ 2013

In complex receivership and bankruptcy-related proceedings involving a charitable foundation and associated corporations, the court addressed scheduling and procedural issues arising after prior bankruptcy orders.

Motions concerning the removal of directors and issues involving a third-party entity were adjourned on consent to dates to be set by the trial coordinator.

Examinations of certain responding parties were cancelled due to immigration concerns relating to re-entry into the United States.

The court directed that the examinations proceed in Buffalo, New York under Ontario procedural law, ordered the responding parties to seek necessary U.S. visa permissions, and required advance funding of travel costs for opposing counsel and the receiver.

The endorsement also addressed potential venue issues in a related promissory note action.

A bankrupt applied for discharge from bankruptcy while his former spouse opposed the discharge based on alleged failure to disclose income during family law litigation and significant outstanding support arrears enforced through the Family Responsibility Office.

The court reviewed the statutory framework under ss. 172, 173, and 178 of the Bankruptcy and Insolvency Act.

Evidence suggested potential non‑disclosure of income from a cash-based business and questionable disposition of business assets prior to bankruptcy.

While support obligations survive bankruptcy, the court held that conditions on discharge could be imposed to address conduct and arrears.

The discharge was therefore granted subject to payment of $25,000 to the trustee to be credited toward support arrears and a one‑month suspension of the discharge.

During a jury trial for multiple sexual offences involving two young complainants, the Crown brought an application to admit similar act evidence across counts of the indictment.

The Crown argued that the allegations shared sufficient similarities and were relevant to issues including the actus reus, credibility of the complainants, motive, and pattern of behaviour.

The defence argued the allegations were materially different and that admitting the evidence would create a substantial risk of prejudice, particularly given the weaker evidence supporting one count.

The court held that the similarities were limited and the probative value of the evidence was slight, while the prejudicial effect—particularly the risk of improper propensity reasoning and wrongful conviction—was significant.

The Crown failed to establish that the probative value outweighed the prejudicial effect, and the application was dismissed.

The plaintiff brought a motion to amend the statement of claim to add the vehicle owner as a defendant after the expiry of the limitation period following a motor vehicle accident.

The proposed defendant opposed the amendment, arguing that the limitation period had expired and that the plaintiff had not exercised due diligence to discover the proper owner earlier.

The court considered the discoverability doctrine under the Limitations Act, 2002 and the amendment provisions of the Rules of Civil Procedure.

Although the court noted that the plaintiff’s investigation appeared careless and that obvious steps such as obtaining a police accident report or conducting a vehicle search had not been taken, the evidentiary threshold on a pleadings motion was low.

The court held that the plaintiff provided sufficient explanation to raise a triable issue on discoverability and allowed the amendment, permitting the new defendant to plead a limitations defence.

The plaintiffs requested that the court settle and issue a formal order reflecting an earlier endorsement that imposed interim injunctive terms restraining the defendants from disseminating defamatory allegations pending the disposition of an injunction motion.

The defendant argued that the earlier endorsement had become stale because a contemplated cross‑motion had not been argued and other events had intervened.

The court rejected that submission, finding the delay in advancing the cross‑motion was entirely attributable to the defendants and that the interim terms were not contingent on the cross‑motion being heard on a particular date.

The court held that the defendants could not benefit from their own failure to advance the motion and that the plaintiffs remained entitled to have the order formally issued.

The judge therefore signed the draft order reflecting the earlier endorsement.

The insurer applied for a determination of whether s. 45 of the Statutory Accident Benefits Schedule requires an insured to identify a single accident when applying for a catastrophic impairment designation.

The insured had been involved in three motor vehicle accidents and submitted a single OCF‑19 application claiming catastrophic impairment based on the cumulative effects of all three accidents.

The court interpreted the legislation and regulatory scheme and concluded that the catastrophic impairment determination must be anchored to a single identified accident.

However, the insured may still rely on the cumulative impact of prior accidents where the specified accident represents the tipping point leading to catastrophic impairment.

The court therefore granted the application in part and declared that the application must specify one accident.

Following the dismissal of summary judgment motions brought by the defendants, the plaintiff sought costs on a partial indemnity basis for successfully defending the motions.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including success, complexity, proportionality, and the conduct of the parties.

While the defendants’ motions were brought reasonably and with the objective of shortening the proceedings, the plaintiff was substantially successful in resisting them, though some issues remained for trial.

The court concluded that costs should be fixed immediately rather than deferred to the trial judge.

Costs were awarded to the plaintiff on a partial indemnity basis.

The parties brought competing motions for temporary custody, child support, and exclusive possession of the matrimonial home.

The applicant father sought a 'Bird's Nest' order where the parents would rotate in and out of the home, while the respondent mother sought sole custody and exclusive possession.

The court dismissed the request for a 'Bird's Nest' order, finding it unnecessary and disruptive to the mother's home-based employment.

The court ordered joint custody with primary residence to the mother, granted her exclusive possession of the home, and ordered the father to pay child support based on an imputed income of $71,000.

The mother's request for a restraining order was dismissed due to lack of objective evidence.

Following dismissal of a champerty motion brought by the defendant seeking to stay a libel action as an abuse of process, the court determined the appropriate costs award.

The defendant had argued that the plaintiff should not receive costs because her legal fees were funded by her employer, and that the affected party university had no entitlement to costs.

The court rejected these arguments, holding that third‑party funding does not preclude an award of costs and that the university, as an affected party under Rule 37.07(1) of the Rules of Civil Procedure, was entitled to participate and recover costs.

Applying the Rule 57 factors, including complexity, extensive evidentiary record, and the reasonable expectations of the unsuccessful party, the court fixed partial indemnity costs in favour of both the plaintiff and the university.

Following a trial in which the defendant was entirely successful despite having admitted liability, the court addressed the issue of costs.

The plaintiff had sought millions of dollars in damages but ultimately proved none at trial.

The defendant sought costs of $498,815.97, including partial indemnity fees up to April 21, 2010 and substantial indemnity fees thereafter based on unaccepted offers to settle.

The court found the amount fair and reasonable given the complexity of the damages theory advanced by the plaintiff, the unnecessary lengthening of the trial, and the plaintiff’s failure to accept settlement offers that should have been accepted.

Full costs in the amount claimed were awarded to the defendant.

The appellant appealed a summary conviction decision finding him not criminally responsible on account of mental disorder for assault and uttering threats after spitting on and threatening a bus driver.

The trial judge had accepted psychiatric evidence diagnosing schizophrenia and concluding that delusional beliefs rendered the appellant incapable of knowing his actions were wrong under s. 16 of the Criminal Code.

On appeal, the appellant argued the NCR finding was unreasonable because the expert did not explicitly ask whether he knew his actions were wrong and because he testified that he did.

The Superior Court held that the trial judge reasonably relied on the psychiatric evidence and the appellant’s disorganized testimony to conclude that his delusions prevented him from knowing his actions were morally wrong.

The evidentiary record supported the NCR finding on a balance of probabilities.

The defendants moved for summary judgment dismissing a solicitor’s negligence claim arising from a commercial real estate transaction involving a building encroaching on a municipal laneway.

The plaintiffs alleged their lawyers failed to warn that the municipality might require payment to convey the laneway and that the title insurance obtained did not cover such a cost.

The court rejected arguments that the claim was statute‑barred and held that expert evidence was unnecessary because the failure to warn of a significant legal risk was apparent on the record.

Applying the “but for” causation test, the court found that had proper advice been given the plaintiffs likely would have sought protection such as a holdback or price abatement.

The motion for summary judgment was dismissed and partial summary judgment was granted to the plaintiffs, leaving only the assessment of damages and the claim against the title insurer for trial.

Costs decision following motions for a certificate of pending litigation (CPL) and for partial summary judgment in a real estate dispute.

The plaintiffs sought costs on a substantial indemnity basis based on an earlier offer to settle.

The court held the plaintiffs were entitled to costs for both motions due to their success but declined to award substantial indemnity costs for the CPL motion because the offer to settle was made after that motion was determined.

However, substantial indemnity costs were awarded for the partial summary judgment motion because the plaintiffs had made a reasonable settlement offer that, if accepted, would have resolved the litigation.

The court fixed costs at $55,000 plus HST and disbursements.

The plaintiff brought a civil claim for false arrest against the defendant police services board arising from his arrest at home following a domestic disturbance.

The court applied the two-stage analysis for false arrest, requiring the plaintiff to prove detention and the defendant to justify the arrest as lawful.

Police had responded to a 911 call from the plaintiff’s spouse reporting violent conduct, including smashing glassware and displaying threatening behaviour in a home containing numerous weapons.

Considering the officers’ observations, the complainant’s distress, and prior domestic violence history, the court held that the officers had reasonable and probable grounds to arrest for assault with a weapon under the Criminal Code.

The claim was dismissed.

Competing motions for summary judgment arose from a failed real estate transaction involving a vacant residential lot.

The purchasers claimed the parties had reached a binding agreement of purchase and sale and sought specific performance and damages.

The vendors argued their counter‑offer contained an express irrevocability deadline and was never accepted before expiry.

The court applied basic contract principles of offer and acceptance, holding that the vendors’ amended document constituted a counter‑offer that lapsed when the purchasers failed to communicate acceptance within the stated time.

As no meeting of the minds occurred, no enforceable agreement existed and the purchasers’ action was dismissed.

The applicants brought a motion for the production of documents subject to solicitor-client privilege relating to the negotiation of a tax indemnification provision in an agreement.

The applicants sought rectification of the agreement, arguing the parties had a common understanding that was mistakenly omitted.

The respondent relied on affidavits from its principal and its former legal counsel to assert its intention regarding the provision.

The court held that by relying on these affidavits, which implicitly put the respondent's state of mind and legal advice in issue, the respondent had waived solicitor-client privilege.

The court ordered reciprocal disclosure of all solicitor-client communications relating to the negotiation of the agreement.

The Crown brought an application seeking a ruling on whether the new self‑defence provisions enacted by the Citizen’s Arrest and Self‑defence Act, which replaced former Criminal Code ss. 34–37 and came into force March 11, 2013, applied retrospectively to offences committed before that date.

The accused was charged with multiple assault‑related offences arising from an incident in his apartment and intended to rely on self‑defence and defence of property at a judge‑and‑jury trial.

The court reviewed conflicting authorities across Canadian jurisdictions regarding whether the new provisions operate prospectively only or also apply to earlier conduct.

Emphasizing the remedial purpose of the amendments and the need for clear jury instructions, the court concluded that the presumption against retrospectivity was rebutted in these circumstances.

The jury would therefore be instructed under the new self‑defence provisions.

The applicant commenced a Charter challenge against an Ontario regulation that terminated OHIP funding for sex reassignment surgery.

After years of complex litigation and shortly before the hearing on the merits, the government repealed the impugned regulation, rendering the application moot.

The applicant sought her costs thrown away.

The court held that the applicant was substantially successful in achieving her goal through the policy change and awarded her partial indemnity costs fixed at $200,000, noting the importance of not penalizing pro bono counsel in public interest litigation.

Costs decision following an application concerning ownership and control of a lakeside promenade shown on a subdivision plan.

The municipality was largely successful in establishing ownership of the land held for the benefit of the public and immunity from claims of adverse possession, though it failed on its argument that the land constituted a public highway and the respondents secured a future trial on laches regarding existing shoreline structures.

The respondents argued that the proceeding constituted public interest litigation and that success was divided.

The court found the municipality to be the more successful party but recognized the respondents’ contribution to resolving a longstanding public dispute and to advancing legal issues affecting public access.

Applying reductions for the public interest component and the respondents’ cooperative conduct, the court substantially reduced the municipality’s recoverable costs.

The applicant appealed a summary conviction for having care and control of a motor vehicle while his blood alcohol concentration exceeded the legal limit, contrary to s. 253 of the Criminal Code.

He argued that the trial resulted in a miscarriage of justice and that the evidence did not establish care and control or an intention to operate the vehicle.

The appeal court held that the trial judge made supported credibility findings and had an evidentiary basis to accept the police officer’s testimony that the accused was seated in the driver’s seat with the key in the ignition and the engine running.

Applying the realistic risk of danger test from R. v. Boudreault, the court found no error in the trial judge’s conclusion.

The appeal was dismissed.