SCJ 2013

In CCAA proceedings involving the Nortel group, the joint administrators of certain European, Middle Eastern, and African debtor entities brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking production of documents from a non‑party accounting firm relating to transfer pricing arrangements and intellectual property development.

The court reviewed the governing principles for non‑party production, including the requirement that such orders be granted only in exceptional circumstances and where it would be unfair to require the moving party to proceed to trial without the documents.

The court found that many of the requested documents had already been communicated to the client and were likely produced through existing discovery processes.

For documents not communicated to the client, the moving party failed to demonstrate their importance or any evidentiary gap justifying exceptional production.

The court concluded that proceeding to trial without the requested materials would not be unfair and dismissed the motion with costs.

High-conflict custody and access trial involving two children following a brief marriage marked by extensive criminal complaints, CAS investigations, and prolonged supervised access.

The applicant father sought shared or joint custody of the younger child and access to his adopted teenage son, while the respondent mother sought sole custody, supervised access, and a restraining order.

Allegations included sexual misconduct toward the older child and concerns about parenting ability, but police and CAS investigations did not substantiate criminal wrongdoing.

The court applied the best-interests analysis under the Divorce Act and Children’s Law Reform Act and evaluated risk using a continuum approach to alleged abuse.

Finding extremely low risk to the younger child and strong evidence of a positive father‑child relationship, the court ordered joint custody with primary residence to the mother and a phased transition to unsupervised access.

The defendant moved to strike the plaintiff's statement of claim and dismiss the action for failure to comply with a consent order requiring the plaintiff to answer outstanding undertakings.

The plaintiff, representing himself, willfully refused to answer the undertakings, claiming they were irrelevant and too much work.

The Master found no evidence that the plaintiff was under a legal disability and concluded that his failure to comply constituted a willful and intentional disregard of a court order.

The action was dismissed with costs fixed at $2,800 on a partial indemnity scale.

The plaintiff sought leave to appeal an interlocutory order dismissing a motion to compel answers and document production arising from a cross‑examination on an affidavit filed in a class proceeding certification motion.

The underlying dispute concerned whether defendants were required to answer questions relating to a proposed statutory cause of action under Part XXIII.I of the Ontario Securities Act when the affidavit had been filed only for purposes of certification under the Class Proceedings Act.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court held that leave to appeal requires either conflicting authority or good reason to doubt the correctness of the order, together with sufficient importance of the issue.

The court found neither conflicting decisions nor any basis to doubt the motion judge’s ruling that the refused questions were irrelevant to the certification motion.

Leave to appeal was therefore denied.

The appellant appealed a conviction for impaired operation under s. 253(1)(b) of the Criminal Code following a summary conviction trial.

He argued that he was not operating the vehicle, that his investigative detention was arbitrary contrary to s. 9 of the Charter, and that the seizure of his breath samples violated s. 8 of the Charter due to improper administration of the approved screening device.

The appeal court held that the trial judge’s credibility findings and factual determinations were entitled to deference and were supported by the evidence.

The officer had reasonable grounds to detain the appellant while investigating a nearby collision and subsequently developed reasonable suspicion of impaired driving.

The roadside breath demand and arrest were found lawful, and the breath sample procedure was properly conducted.

Unit owners sought an order compelling mediation and arbitration under s.132 of the Condominium Act, 1998 regarding directions issued by the condominium corporation concerning interactions with neighbours, security staff, and board members, and use of common facilities.

The corporation argued the dispute should proceed in court rather than through the Act’s mandatory mediation/arbitration process.

The court held that the impugned directions were minor administrative measures relating to day‑to‑day condominium management and did not give rise to a genuine dispute requiring mediation, arbitration, or litigation.

Applying the de minimis principle, the court concluded the issues were too insignificant to justify legal proceedings.

The application was dismissed with reduced costs payable to the condominium corporation.

A condominium corporation sought a declaration that a developer agreement and related by-law limiting the developer’s liability for construction deficiencies were void and ultra vires under the Condominium Act, 1998.

The impugned agreement limited claims against the developer to those available under the Ontario New Home Warranties Plan Act and had been disclosed to purchasers and registered on title.

The court held that the pre-turnover board had authority to enter into such an agreement and that limiting developer liability in this manner was not inconsistent with the Condominium Act.

The arrangement was part of the commercial framework under which the condominium project was developed and sold, and purchasers had notice of the limitation.

The application was dismissed and costs awarded to the respondent.

Following an unsuccessful motion by the defendant seeking to dismiss the plaintiff’s action on the basis of res judicata, the court determined the appropriate costs payable to the successful plaintiff.

The motion involved complex legal issues including the doctrine of res judicata, conflict of laws, and analysis of a United States declaratory judgment forming the basis of the defendant’s argument.

The plaintiff sought substantial partial indemnity costs reflecting extensive research, including evidence from U.S. counsel regarding American law.

The court found the claimed hours excessive for a one‑day motion but accepted that the issues were complex and important.

The court fixed reasonable partial indemnity costs and allowed the claimed disbursements.

The plaintiff self-regulatory organization brought a motion for summary judgment to recover $80,000 in costs ordered by its disciplinary hearing panel against a former registrant.

The defendant had previously been found guilty of misconduct involving undisclosed financial interests in client accounts and was permanently banned and fined by the disciplinary panel.

Appeals to the securities regulator and the Divisional Court were dismissed, and the defendant failed to pay the ordered costs.

The court held that membership in the regulatory organization created a contractual obligation to comply with its by-laws, rules, and disciplinary orders, including costs awards.

The court concluded that the costs order was enforceable through a civil action for breach of contract.

The applicant sought temporary child support and contribution to section 7 expenses, while the respondent sought parenting-related relief including a 50/50 parenting schedule.

The court considered whether income should be imputed to the respondent, who reported no current income while serving as CEO of a biotechnology company without salary.

Applying s. 19 of the Federal Child Support Guidelines, the court determined that despite the absence of reported income, the respondent maintained a high standard of living and income should therefore be imputed based on his expenses.

Income was imputed at $123,000 annually and guideline child support was ordered accordingly.

The court declined to order contribution to section 7 expenses due to insufficient evidence and maintained the existing parenting schedule pending further discussion at a settlement conference.

The defendants sought leave to appeal to the Divisional Court from an order requiring production of an environmental report over which litigation privilege was claimed.

The report had been referenced in an affidavit and supported by an invoice attached as an exhibit.

The court considered whether referencing the report and attaching payment documents constituted a waiver of litigation privilege and whether the dominant purpose test had been properly applied.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court found conflicting authority and concluded there was reason to doubt the correctness of the earlier order compelling production.

Because the issues regarding litigation privilege and waiver had broader importance to litigation practice, leave to appeal was granted.

The applicant mother brought a motion for interim custody, child support, and spousal support following the parties’ separation.

A preliminary issue arose as to whether a prior custody and support order made during an earlier separation remained in force after the parties reconciled for several years.

The court held that the reconciliation terminated the earlier order, requiring the court to determine custody and support afresh.

On an interim basis, the court granted the mother sole custody of the child, established an access schedule for the father, fixed the father’s income for support purposes, and ordered interim child and spousal support.

The plaintiff employer moved for default judgment against two former employee accountants alleged to have misappropriated corporate funds over several years.

Evidence from an internal investigation and a forensic consulting report established that the defendants conducted numerous fraudulent withdrawals and falsified accounting records.

The court held the pleadings and affidavit evidence established liability for conversion, fraud, and breach of fiduciary duty and granted judgment for proven losses totaling over $1.96 million, but declined to include certain suspicious transactions that could not be adequately traced to the defendants.

Punitive damages were awarded due to the deliberate and prolonged abuse of positions of trust, though the amount sought was reduced after considering the defendants’ gambling disorder evidence, ongoing criminal proceedings, and proportionality.

The court also awarded investigative costs and substantial indemnity legal costs.

The applicant brought a motion concerning parenting time, child support, and spousal support following separation.

The court ordered an interim shared parenting arrangement with the children residing with each parent on alternate weeks.

The principal financial issue concerned whether annuity payments from a structured settlement arising from a catastrophic personal injury should be treated as income for child support purposes.

The court held that only the portion of the settlement attributable to loss of earning capacity should be included in income and excluded portions intended for future care and personal damages.

Based on this calculation, the respondent’s income for support purposes was set at a reduced amount and child support and interim spousal support were ordered.

The plaintiff by counterclaim brought a motion to amend pleadings to add an investment subsidiary as a defendant to the counterclaim after the limitation period had allegedly expired.

The court considered s. 21 of the Limitations Act, 2002 and the doctrine of misnomer.

It found that the counterclaimant had always intended to pursue claims against both the banking and investment arms of the financial institution and that the proposed defendant knew it was the intended defendant.

The amendment therefore constituted a correctable misnomer rather than the addition of a new party after the limitation period.

The motion to add the party was granted, subject to further particulars being provided for certain defamation allegations.

The court addressed costs arising from prior family law endorsements ordering disclosure relating to the respondent’s income and business interests for purposes of spousal support and equalization.

The applicant successfully obtained disclosure from the respondent and a related corporation concerning valuation and financial records.

The court held that the disclosure should not have been resisted and emphasized the importance of full financial disclosure in family proceedings.

Applying the Courts of Justice Act and Rule 24 of the Family Law Rules, the court awarded substantial costs to the applicant.

Costs were fixed at $30,000 payable forthwith, jointly and severally by the respondent and the non-party corporation.

The applicant sought an order requiring the respondent to pay $84,610 in interim disbursements pursuant to Rule 24(12) of the Family Law Rules in advance of trial.

The motion was heard shortly before trial and significant affidavit evidence was excluded under Rule 14(20)4, limiting the applicant’s evidentiary record.

The court reviewed the principles governing interim disbursements, including the need to demonstrate that the claim has sufficient merit and that the moving party lacks the financial ability to pursue the litigation without assistance.

Although there was a significant income disparity between the parties, the applicant failed to establish that the requested disbursements were necessary, reasonable, or that she was incapable of funding the litigation, particularly where substantial amounts had already been paid.

The motion was dismissed and costs were awarded to the respondent.

The applicants sought certiorari to quash a provincial offences information alleging contraventions of s. 122(1)(c) of the Securities Act, arguing that the Ontario Court of Justice exceeded jurisdiction when it refused to quash a second information sworn without obtaining new prosecutorial consent.

The court held that the impugned ruling concerned the validity of the information and therefore fell within matters for which certiorari relief is barred where an appeal route exists under s. 141(3) of the Provincial Offences Act.

In any event, the court found the justice properly determined that the second information merely split an existing count to reflect statutory amendments and introduced no new offences.

The original consent to prosecute therefore remained valid.

The certiorari application was dismissed.

The corporate plaintiff sought leave to appeal an order requiring it to post $62,000 as security for costs in a negligence and breach of fiduciary duty action against solicitors involved in a business sale transaction.

The applicant argued that the motions judge erred in finding the corporation was not impecunious, failed to assess the merits of the claim, and did not adequately address delay in bringing the security motion.

The court held that modern jurisprudence permits consideration of a corporation’s ability to obtain funding from shareholders or creditors when assessing impecuniosity and found no conflicting authority warranting appellate clarification.

It further held that the motions judge properly exercised discretion by considering fairness to the defendants and the evidentiary record.

Leave to appeal was refused because there was no reason to doubt the correctness of the decision and the issues lacked broader importance.

The accused brought a Charter application alleging a breach of s. 8 arising from a search of a cell phone conducted pursuant to a warrant.

The court found the warrant was issued based on an Information to Obtain sworn by an officer with no personal knowledge of the investigation, rendering the authorization unreasonable.

Although the investigating officer had not acted in bad faith, the warrant process involved material deficiencies and non‑disclosure affecting the reliability of the authorization.

Applying the framework in R. v. Grant, the court held the Charter breach was moderately serious and had a significant impact on the accused’s privacy interests in the contents of a personal smartphone.

Evidence obtained from the search, including alleged child pornography images, was excluded under s. 24(2).