SCJ 2013

The plaintiff sought payment of $97,500 under a credit line life insurance policy following the death of her common‑law partner.

The insurers denied coverage on the basis that the insurance application contained material misrepresentations regarding the insured’s medical history and a prior life insurance application within the two‑year contestability period.

The court found the application contained inaccurate answers to clear health and underwriting questions and accepted expert underwriting evidence that the insurance would have been declined had accurate information been disclosed.

Applying s. 184(3) of the Insurance Act and established principles requiring full disclosure and utmost good faith in insurance contracts, the court concluded the insurer was entitled to void the coverage.

The claim was therefore dismissed.

Following a successful motion for summary judgment that resulted in dismissal of the action, the court addressed the issue of costs.

The court reiterated the general principle that costs follow the event and rejected submissions that costs should not be awarded.

Although the plaintiff raised concerns regarding mental health issues and impecuniosity, the court concluded that these circumstances did not justify departing from the ordinary rule.

The defendant’s claimed costs were found to be reasonable in light of the work performed and the parties’ bills of costs.

Costs were awarded to the defendant on a partial indemnity basis in the amount claimed.

The moving party sought to set aside a temporary spousal support order made in his absence, claiming he was out of the country when served.

The court dismissed the motion, finding that the moving party failed to satisfactorily explain his delay in bringing the motion to set aside the order after returning to Canada.

The court ordered the matter to proceed to a settlement conference.

The applicant, an absentee landlord living in Qatar, sought to reverse clean-up costs assessed against his property by the respondent municipality after a clandestine drug lab operated by his tenants caused a fire.

The municipality relied on a by-law prohibiting the use of property for the manufacture of controlled substances.

The court held that the by-law is a strict liability public welfare provision that does not require the owner to have actual knowledge of the prohibited activity.

The court found the municipality's decision to assess costs against the applicant was reasonable and that failing to do so would result in the applicant's unjust enrichment.

The application was dismissed.

The plaintiff masonry company brought an action for unpaid services under a verbal, cash-based contract for the installation of stone veneer and chimneys on the defendants' new home.

The defendants counterclaimed for the cost of remedial work, alleging the masonry was defective and not compliant with the building code.

The court found that both parties entered into an imprecise, 'under the table' arrangement and shared responsibility for the project's shortcomings.

Concluding that the plaintiff received less than expected but was entitled to less due to the final result, and that the defendants as builder/contractors bore responsibility for the conditions, the court dismissed both the main action and the counterclaim.

The applicant insurer appealed an arbitrator's award finding that the injured party and his girlfriend were 'spouses' under the Insurance Act, which would make the applicant liable for statutory accident benefits.

The Superior Court of Justice allowed the appeal, holding that the arbitrator erred in law by failing to properly apply the criteria for a conjugal relationship to the full three-year period prior to the accident.

The court found that the couple, who were teenagers living primarily with their respective parents during the relevant period, did not live together continuously in a conjugal relationship for three years.

The defendant moved to vacate Certificates of Pending Litigation obtained by the plaintiff on an ex parte basis over two properties.

The court held that a party seeking ex parte relief must make full and frank disclosure of all material facts.

The plaintiff failed to disclose a prior divorce settlement in which he had disclaimed any trust interest in the properties and misrepresented the contents of a lawyer’s letter regarding potential sale of the land.

These omissions and misrepresentations were material and could have influenced the original ex parte decision.

The court therefore set aside the order permitting the certificates, but required that 50% of the gross sale proceeds of the properties be paid into court as security pending resolution of the ownership dispute.

The appellant appealed his summary convictions and sentence for impaired driving, failing to remain at the scene of an accident, and refusing to provide breath samples following a multi-vehicle collision on the Gardiner Expressway.

The appellant argued the trial judge misapprehended evidence, improperly relied on an out-of-court statement, and rendered unreasonable verdicts.

The Superior Court of Justice dismissed the conviction appeals for those offences, finding the verdicts reasonable and supported by evidence, including the appellant's feigned attempts to provide breath samples.

The court allowed the appeal solely to enter an acquittal on a stayed dangerous driving charge.

The appeal against the sentence of four months' imprisonment and a $1,000 fine was dismissed as fit.

The plaintiff brought a motion to amend his amended Statement of Claim to add additional defendants, including all trustees or former trustees of a First Nation trust, the trust itself, and the Band Council.

The underlying action alleged breach of fiduciary duty, improper exercise of discretion, and conflict of interest arising from the denial of trust funding for the plaintiff’s business proposal.

The court held that the proposed amendments largely consisted of evidentiary material, repetitive or irrelevant allegations, and claims against entities not capable of being sued.

The court also found that the limitation period had expired for adding additional parties and that permitting the amendments would cause prejudice and further delay a long‑standing action already set down for trial.

The motion to amend was dismissed.

The plaintiffs brought a motion for partial summary judgment seeking specific performance of an agreement of purchase and sale for a commercial property.

The transaction failed to close on the agreed-upon date of August 3, 2012.

The court found that the parties had waived the 'time of the essence' provision by their conduct.

Furthermore, the defendants were not ready, willing, and able to close on that date and therefore could not rely on the provision to terminate the agreement.

The court granted partial summary judgment and ordered specific performance.

The Crown brought a bail review under s. 521 of the Criminal Code seeking to revoke the accused’s release order on serious firearms and criminal organization charges arising from a police investigation.

The reviewing judge found that the justice of the peace misapprehended aspects of the evidentiary record and failed to adequately analyze the tertiary ground factors under s. 515(10)(c).

Additional corroborative evidence, including a vehicle rental contract and extensive wiretap evidence, significantly strengthened the Crown’s case linking the accused to firearm trafficking activity.

Considering the apparent strength of the prosecution’s case, the gravity of the offences, the firearm-related circumstances, and the potential for lengthy penitentiary sentences, detention was necessary to maintain public confidence in the administration of justice.

The Crown’s application succeeded and the accused’s bail was revoked.

Following a jury conviction for fraud over $5,000, the court determined the appropriate sentence for the offender who misrepresented ownership of shares in a publicly traded company and obtained $50,000 from the victim.

The court considered aggravating factors including breach of trust, premeditation, lack of restitution, and a prior similar conviction, as well as mitigating factors such as employment history, family responsibilities, and medical issues.

The offender sought a conditional sentence, while the Crown sought incarceration.

The court held that denunciation and general deterrence were paramount in fraud offences of this nature and concluded that a conditional sentence would be inappropriate.

A custodial sentence followed by probation and a restitution order was imposed.

Dissident shareholders holding more than 5% of a public corporation sought orders under ss. 143 and 144 of the Canada Business Corporations Act requiring the board to call a shareholders’ meeting to remove and replace directors.

The court held the first requisition invalid because it was made by a beneficial rather than registered shareholder and failed to identify proposed director nominees.

Although a second requisition was valid, the directors were entitled to rely on the statutory exception in CBCA s. 143(3)(a) because a record date had already been fixed for an upcoming annual meeting.

While shareholders may in principle call a meeting under s. 143(4) even where a board relies on s. 143(3), the court declined to permit the proposed meeting in the circumstances due to delay by the applicants, limited prejudice from waiting for the scheduled AGM, and the costs of holding two meetings in close proximity.

The accused was charged with sexual assault, robbery, and uttering threats arising from a violent attack at a Toronto bus stop.

The complainant identified the accused in court and the Crown relied on circumstantial evidence including DNA on a hat found at the scene and the accused’s presence near the location that night.

The court found significant inconsistencies between the complainant’s descriptions of the attacker and the accused’s actual appearance, including eye colour, hair colour and length, and a missing front tooth.

The court also attached very little weight to the in‑court identification because no photo line-up including the accused had ever been conducted and the identification occurred years later.

Considering the frailties of eyewitness identification evidence and applying the principles from R. v. W. (D.), the court concluded that the Crown had not proven identity beyond a reasonable doubt.

The defendant brought a motion to dismiss or stay an Ontario action on the basis of res judicata, issue estoppel, and abuse of process, relying on a Minnesota default declaratory judgment obtained after the plaintiff declined to attorn to the jurisdiction of the U.S. court.

The Ontario court found that the Minnesota judgment did not determine the dispute on the merits and that the defendant failed to disclose the pending Ontario proceedings when seeking default judgment.

Applying the principles governing recognition of foreign judgments, the court held there was no real and substantial connection between the dispute and Minnesota sufficient under Canadian conflict of laws rules.

The court further concluded that the doctrines of res judicata and issue estoppel did not apply, and even if they did, discretion should be exercised to refuse their application to avoid injustice and the appearance of forum shopping.

The plaintiff contractor brought a construction lien action for unpaid invoices totaling $30,716.09 for home renovations.

The defendant homeowner counterclaimed for deficiencies, accommodation expenses, and a full refund, arguing the unwritten contract was unenforceable under the Consumer Protection Act.

The court found the defendant deliberately deceived the plaintiff by promising payment to ensure completion.

Applying section 93(2) of the Consumer Protection Act, the court held it would be inequitable not to enforce the contract.

The plaintiff was awarded the balance owing, less set-offs for minor deficiencies and cleaning.

The defendants brought a motion to dismiss or stay an Ontario action alleging negligent legal advice and breach of contract arising from legal services provided in connection with Quebec litigation.

The plaintiff argued Ontario had jurisdiction because the defendant law firm carried on business in Ontario and an Ontario lawyer participated in providing the impugned tax advice.

The court held that presumptive connecting factors established jurisdiction simpliciter under the framework from Club Resorts Ltd. v. Van Breda.

However, applying the doctrine of forum non conveniens, the court concluded Quebec was clearly the more appropriate forum given the Quebec retainer agreement, Quebec governing law, the location of most witnesses and events, and parallel proceedings in Quebec.

The Ontario action was therefore stayed.

The plaintiff brought a motion to amend a statement of claim to seek a declaration of an equitable mortgage over the defendants’ property and to obtain a Certificate of Pending Litigation (CPL).

The defendants opposed the CPL, arguing the claim was raised outside the limitation period and that registering a CPL years after the action commenced would cause prejudice because the property had been used to secure financing for their defence.

The court held that the proposed amendment flowed from the existing pleading and did not constitute a new cause of action, and therefore leave to amend should be granted under Rule 26.01 of the Rules of Civil Procedure.

However, the court declined to issue a CPL, finding that the plaintiff delayed more than three years before seeking the remedy and that granting it would cause significant prejudice to the defendants.

Costs were awarded to the defendants.

The applicant mother brought a motion seeking reversal of a prior custody order and a no-contact order against the respondent father, together with orders requiring participation in a reunification program.

The respondent brought a motion to set aside parts of a prior consent order directing attendance at the program.

The court found that the program involved a lengthy process with extensive decision‑making authority delegated to its director and that there was no independent or peer‑reviewed evidence of its efficacy.

The judge held that the court could not cede its statutory responsibility to determine the best interests of the children to a program lacking evidentiary support.

The respondent’s motion to vacate portions of the July 4, 2013 order was granted and the applicant’s motion was dismissed.

The young person, an aboriginal youth, pleaded guilty to manslaughter after fatally stabbing his cousin during an altercation.

The court considered the chaotic social conditions of his remote community, his history of solvent abuse, and Gladue factors.

The court declined to grant enhanced credit for pre-trial custody.

The young person was sentenced to two years, comprising six months of pre-trial custody credit, three months in secure custody, and 15 months of conditional supervision in the community with conditions to attend school and address substance abuse and anger issues.