SCJ 2013

The plaintiffs brought a motion seeking contempt findings against the defendants for failing to comply with multiple court orders issued during a prolonged civil trial.

The court found beyond a reasonable doubt that the defendants had wilfully and repeatedly breached clear and unambiguous orders, including a prior order requiring compliance with all outstanding trial directions.

Evidence demonstrated a deliberate strategy to delay the proceedings and obstruct the plaintiffs’ ability to advance the action.

Rather than striking the defence immediately, the court ordered the defendants to pay $35,000 into court as security for costs associated with motions and wasted trial time.

The court emphasized the need to impose sanctions to protect the administration of justice and prevent ongoing delay tactics.

The plaintiffs sought continuation of a Mareva injunction against a defendant alleged to be holding assets on behalf of other defendants to shield them from potential judgment enforcement.

The court found a strong prima facie case that the defendant remained in possession and control of substantial assets belonging to related defendants and that those assets were being concealed to avoid seizure.

The court also found a high likelihood that the defendants would continue to dissipate or conceal assets without court intervention.

Credibility concerns were raised regarding the evidence of key defendants.

The Mareva injunction was continued until final disposition of the action.

The defendants brought a Rule 21.01(1)(b) motion to strike portions of the statement of claim alleging intentional interference with economic relations in a defamation action.

They argued the plaintiffs failed to plead the constituent elements of the tort, including unlawful means directed at a third party and resulting economic loss.

The court held that the pleadings, read generously and together with the particulars provided, sufficiently alleged the elements of the tort, including allegations of intimidation and pressure directed at customers.

It was not plain and obvious that the claim would fail.

The motion to strike was therefore dismissed.

Following a concluded child protection trial in which the court ordered Crown wardship without access for the child, the court addressed a related proceeding under the Children's Law Reform Act involving claims for custody, access, and child support.

Because the child protection order had already determined the child’s status and eliminated parental access, the court found no basis to continue adjudicating the family law claims.

The court therefore dismissed all outstanding claims in the CLRA proceeding as moot in light of the Crown wardship order made in the child protection file.

Following a motion to change concerning the interpretation of a separation agreement and the calculation of child support, the court determined the issue of costs.

The parties achieved mixed success, with the moving party prevailing on the interpretation of the agreement and retroactive child support period, while the responding party succeeded on the residence of the child for support purposes.

Applying the principles under s. 131(1) of the Courts of Justice Act and Rule 24 of the Family Law Rules, the court found the moving party was more successful overall but that full indemnity costs were not warranted.

Costs of $5,000 inclusive of HST and disbursements were awarded to the moving party and characterized as support for enforcement purposes.

The court also approved a payment schedule proposed by the responding party for retroactive child support.

The applicants brought an urgent motion in a dependants’ relief proceeding seeking preservation of estate assets and the appointment of an Estate Trustee During Litigation (ETDL).

The deceased’s will left the entire estate to his second spouse and made no provision for his minor child from a prior marriage, who had special needs.

Evidence raised concerns regarding the administration and disclosure of estate assets, including corporate holdings and potential transfers by the named estate trustee.

The court held that a neutral administrator was required to preserve and transparently manage the estate during litigation and to determine the true value of the estate assets.

The court therefore appointed an independent accountant as ETDL without requiring the posting of a bond.

Following a family law motion concerning a restraining order, temporary spousal support, disclosure, reimbursement of expenses, and a cross‑motion for occupation rent and credits, the court determined the issue of costs.

The moving party was successful on the majority of issues, although she did not obtain the restraining order sought and received less spousal support than requested.

The responding party obtained only a modest credit for occupation rent and support already paid.

Applying s. 131(1) of the Courts of Justice Act and Rule 24 of the Family Law Rules, the court held that costs should follow the event but that full indemnity costs were not appropriate.

The court awarded partial costs of $4,000 inclusive of HST and disbursements to the moving party.

In a motor vehicle collision action involving a police officer driver, co-defendants sought an order compelling a police officer witness to re-attend for cross-examination and to answer previously refused questions regarding internal police review reports assessing fault and potential charges.

The dispute concerned whether undisclosed internal police “tracking reports” prepared by senior officers reviewing the collision investigation were relevant and producible under Rule 30.02(1) of the Rules of Civil Procedure.

The court held that relevance in discovery is broadly construed and that the senior officers’ assessments of fault formed part of the investigative process relating directly to the issue of liability.

The fact that the officer involved was not charged did not render the internal reports irrelevant.

The motion was granted and the police defendants were ordered to disclose the tracking report and permit further cross‑examination.

The applicant brought a motion at the start of trial seeking to strike the respondent’s pleadings due to his failure to comply with a prior order requiring monthly spousal support payments.

The respondent admitted unilaterally reducing the ordered payments and accumulating arrears of $10,032 but claimed an inability to pay due to business difficulties.

The court found the respondent provided no reliable evidence of inability to pay and noted a history of non‑compliance with support and disclosure orders.

While recognizing that striking pleadings is a drastic remedy of last resort under Rule 14(23) of the Family Law Rules, the court imposed a conditional sanction.

The respondent was permitted to attend and cross‑examine but was barred from presenting his own evidence unless he paid the full arrears before the close of the applicant’s case.

The requesting state sought the committal of the person sought for extradition to the United States to face prosecution for fraud arising from a large-scale fraudulent debt collection scheme targeting U.S. law firms.

The court considered whether the certified Record of the Case and Supplemental Records disclosed evidence sufficient to justify committal under the Extradition Act.

Although the case against the person sought was largely circumstantial, the court held that the evidence linking email accounts, IP addresses, and communications with co-conspirators created reasonable inferences that the person sought directly participated in verifying counterfeit cheques during the scheme.

Applying the low committal threshold for extradition proceedings, the court concluded that a properly instructed jury could convict on the Canadian equivalent offence of fraud.

The court therefore ordered committal for extradition.

During a jury trial, the defence requested that the trial judge include a Vetrovec warning in the jury charge concerning the credibility of the complainant and another Crown witness due to their criminal histories and credibility concerns.

The court considered the governing principles regarding when a special caution to the jury about unreliable witnesses is appropriate.

The judge held that the complainant did not fall within a category of witnesses requiring such a warning because his credibility issues were apparent and could be assessed by the jury without special instruction.

However, the court exercised its discretion to provide a Vetrovec warning regarding the second witness, whose extensive criminal record included crimes of dishonesty and whose testimony conflicted with police evidence.

The jury would therefore be cautioned to scrutinize that witness’s evidence and consider whether it was confirmed by other evidence.

Following a family law motion to change involving child support and post‑secondary expenses for adult children, the court addressed costs.

Both parties argued divided success, with the respondent seeking $15,606 and the self‑represented moving party seeking $15,080.94 including compensation for her own time.

The court applied Rule 24 of the Family Law Rules and the principles in Fong v. Chan regarding recovery by self‑represented litigants.

Although the moving party devoted significant effort, she could not recover for her own time because she had not forgone remunerative activity.

Finding she had largely prevailed on the motion, the court awarded her documented costs of $9,080.94, enforceable as support through the Family Responsibility Office.

The applicant spouse brought a motion seeking interim spousal support, occupation rent for the matrimonial home, and an order for the sale of the matrimonial home.

The court declined to grant interim relief, noting the matter was already scheduled for trial within two months and that the requested orders would require credibility findings and fuller financial disclosure.

The court held that issues relating to occupation rent, ownership interests, equalization, and entitlement to spousal support should be determined by the trial judge after a full evidentiary hearing.

Concerns also existed regarding incomplete financial disclosure and the respondent’s ongoing payment of household and child-related expenses.

The motion was dismissed with costs reserved to the trial judge.

The parties brought cross-motions for interim custody, child support, spousal support, and exclusive possession of the matrimonial home.

The court granted the mother interim sole custody, finding her proposed schedule minimized third-party care for the young children.

The father was ordered to pay interim child support of $1,273 per month based on his income.

Spousal support was denied at this time due to the father's assumption of significant family debt to purchase the mother's interest in the matrimonial home.

The father was granted 60 days of exclusive possession to complete the buyout.

An Ontario resident brought a proposed securities class action against a U.K. issuer alleging secondary market misrepresentation under Part XXIII.1 of the Securities Act following the Deepwater Horizon oil spill.

The defendant moved to stay the action in part, arguing Ontario lacked jurisdiction over claims of investors who purchased securities on foreign exchanges and that the matter should proceed in U.S. or U.K. courts.

The court held that the statutory cause of action under s. 138.3 constitutes a statutory tort presumptively connected to Ontario where an Ontario investor is deemed to have relied on the misrepresentation.

The legislation did not restrict claims to purchases on Ontario exchanges, and the defendant failed to rebut the presumptive connecting factor.

The court further found the defendant did not establish that foreign courts were clearly more appropriate forums.

The plaintiff brought a civil action for wrongful dismissal and damages for discrimination under the Human Rights Code following termination after approximately 16 months of employment.

The employer conceded insufficient notice but argued that termination resulted from a corporate restructuring and sale of a business division.

The court applied the Bardal factors and determined reasonable notice to be three months given the employee’s age, position, and short tenure.

The court further found that the employer’s insistence on a complete recovery before permitting a return to work and its conduct surrounding termination demonstrated that the employee’s disability was a significant factor in the dismissal, contrary to s. 5(1) of the Human Rights Code.

The plaintiff was awarded damages for wrongful dismissal and $20,000 in compensation under s. 46.1 for discrimination.

A purchaser of assets from a bankrupt estate brought a motion to amend a prior court approval order to expressly include intellectual property within the assets conveyed.

The original order had approved the sale of the bankrupt’s residual assets, but the trustee refused to execute a bill of sale including trademarks, asserting uncertainty about whether they formed part of the estate.

The court held that the approval order clearly conveyed all remaining assets and criticized the trustee for failing to deal with the issue promptly and for raising concerns inconsistent with the record.

The court concluded that the motion should not have been necessary and that the trustee’s conduct justified a personal costs award.

Partial indemnity costs were ordered against the trustee.

During a jury trial for aggravated assault and weapons offences, the accused young person brought an application to exclude his adult criminal record, which consisted of a single conviction for first degree murder.

The defence had vigorously cross-examined the primary Crown witness on his extensive criminal record.

The court applied the Corbett framework and dismissed the application, finding that the probative value of the murder conviction on the accused's credibility outweighed its prejudicial effect, and that excluding it would create a serious imbalance given the attack on the Crown witness's credibility.

A law firm sought to replace existing carriage counsel in a proposed pharmaceutical class action on the basis of unreasonable delay in bringing a certification motion.

The court held that under s. 12 of the Class Proceedings Act, 1992 it has supervisory jurisdiction to entertain a carriage transfer motion.

The court established a four-part test requiring proof that the delay is clearly unreasonable, that it causes actual prejudice to class members, that the explanation for the delay is inadequate, and that compelling certification within a fixed timeline would be unworkable or not in the class’s best interests.

Applying this test, the moving party failed to demonstrate unreasonable delay or prejudice, and the explanation for the delay was credible.

The motion to replace carriage counsel was therefore dismissed.

A municipality sought an order requiring demolition of a waterfront structure constructed on Lake Rosseau, asserting that the respondent had built a boathouse with living accommodations in violation of zoning and planning by-laws.

The respondent argued the structure was a water aerodrome registered with Transport Canada and therefore immune from municipal regulation under the doctrine of interjurisdictional immunity.

The court examined the chronology of events, the respondent’s intentions, and the actual use and design of the structure.

It concluded the aerodrome registration was an attempt to circumvent municipal zoning restrictions and that the structure functioned as a boathouse rather than an aeronautical facility.

The court held that municipal planning and zoning laws applied and ordered demolition of the structure.