SCJ 2014

The defendant bank sought leave to appeal to the Divisional Court from an order certifying a class proceeding arising from unauthorized access to customer information by a bank employee.

The proposed appeal challenged the class definition, the certification of a waiver of tort claim, and the certification of claims for non‑pecuniary damages in negligence and contract without proof of psychiatric injury.

The court held that the certification judge had applied the correct low threshold applicable at the pleadings and certification stage and that the bank had not shown conflicting authority or good reason to doubt the correctness of the order under Rule 62.02(4) of the Rules of Civil Procedure.

The court further held that the class definition was not impermissibly over‑inclusive and that the waiver of tort issue met the “some basis in fact” standard for certification.

Leave to appeal was therefore refused.

The respondent brought a motion to set aside a final family law order obtained by default after failing to file an Answer to an application.

The court considered whether the respondent acted promptly, whether he had a viable defence, whether the outcome might have differed, and whether he acted in good faith.

The evidence raised serious concerns about whether the application had been properly served, including deficiencies in the affidavit of service and conflicting evidence regarding who received the documents.

The court accepted that the respondent first learned of the order when his pension was garnished and found he acted promptly thereafter.

In the interests of justice, the default final order addressing property, custody, and support was set aside.

The court addressed procedural disputes arising in a construction-related action where the plaintiff sought repayment of funds allegedly paid for electrical work not performed, while the defendant denied liability and counterclaimed.

A prior order had transferred the matter to Toronto and contemplated referral to a master managing related construction lien proceedings.

The plaintiff appealed the venue decision and sought a stay pending appeal while simultaneously attempting to schedule a summary judgment motion.

The court emphasized that lawyers’ duty to fearlessly advance their client’s case must be exercised consistently with fairness, cooperation, and the goals of accessible civil justice.

To resolve procedural gridlock, the court ordered that the plaintiff’s motion for a stay pending appeal and the defendant’s motion to refer the matter to the master be heard together on an expedited basis.

The defendant moved for summary judgment dismissing a claim arising from a share purchase agreement in which the plaintiff withheld escrow funds alleging breach of a non‑competition covenant.

The plaintiff asserted that the defendant assisted a competitor by facilitating access to a refrigerated trailer through related entities, thereby providing a competitive “springboard.” The court found the plaintiff’s escrow payment request failed to comply with the contractual notice requirements and, more importantly, that the evidentiary record did not establish that the defendant affirmatively assisted or induced any competitive business in breach of the covenant.

The trailer was owned and leased by a separate corporation and was not unique or provided without compensation.

The court concluded there was no genuine issue requiring a trial and that summary judgment was appropriate.

In a family law motion concerning child support, section 7 expenses, and spousal support, the court addressed competing motions to vary support and determine arrears following a lengthy separation and prior temporary orders.

The parties agreed that all support arrears prior to December 2010 should be rescinded pursuant to a reconciliation agreement.

The court fixed post‑2011 child support arrears and section 7 expense arrears in the amounts claimed by the recipient spouse and ordered ongoing guideline child support based on an imputed income to the payor of $96,000 beginning in 2015.

The court found entitlement to spousal support based on need, but reduced the amount sought and ordered limited retroactive support together with ongoing support calculated under the Spousal Support Advisory Guidelines.

Annual financial disclosure and adjustments to support were also ordered.

An employer appealed a Master's order granting a motion to amend a statement of claim to add the employer as a defendant in an action against an insurer for termination of long‑term disability benefits.

The employee, a unionized worker, sought to claim that the employer was liable for disability benefits after the insurer stopped payments.

The court held that the employee’s entitlement to disability benefits against the employer arose from the collective bargaining agreement and therefore fell within the exclusive jurisdiction of labour arbitration.

Because the employer was not an insurer under the policy and could not be sued in court for obligations arising under the collective agreement, the amendment adding the employer as a party was improper.

The appeal was allowed and the Master's order set aside.

The parties separated after a short marriage and had one child.

The mother moved to Trenton and initially denied the father access, while the father remained in Kingston.

The father sought joint custody and for the child's primary residence to be in Kingston, while the mother sought sole custody and to remain in Trenton.

The court ordered joint custody, finding that the mother's actions created the communication difficulties and that the father was a capable parent.

The court ordered the child's residence to be in Kingston with an alternating weekly schedule, and dismissed the mother's claims for an equalization payment and occupation rent.

A custodial parent sought child support for five children, including retroactive adjustment of support and reimbursement of special and extraordinary expenses.

The court found that the payor parent failed to comply with prior disclosure orders and provided incomplete financial information, requiring the court to rely on the best available evidence to determine income.

Applying the Federal Child Support Guidelines, the court determined that the payor’s income between 2009 and 2014 warranted significantly higher table support than previously paid.

Arrears for base child support and special expenses were calculated and ordered payable on a structured schedule.

Claims of undue hardship and lack of notice for special expenses were rejected.

The respondent father brought a motion seeking to vary an interim access order requiring a nanny to accompany the child during access visits.

The nanny had resigned, leading to a stalemate in which the applicant mother refused unsupervised access while the father refused supervision, resulting in the child not seeing the father for several weeks.

The court interpreted the earlier order and held that the term “accompany” did not mean supervision.

In the child’s best interests, the court ordered temporary unsupervised access for the father, with supervised transitions between the parents.

The court also permitted the mother to travel temporarily with the child to California for a limited visit with her family.

The applicant brought a motion to vary an existing spousal support order following a change in circumstances after obtaining sole custody of the parties’ children.

The court accepted that the custodial change and resulting financial responsibilities constituted a material change since the earlier support order.

Applying the Spousal Support Advisory Guidelines and considering the applicant’s reduced income and increased childcare obligations, the court set support at the mid-range of the guideline amounts.

Requests by the respondent for additional costs and for the applicant to assume full responsibility for a professional’s fees were rejected.

The prior order was varied to reduce the monthly spousal support obligation.

The plaintiff mortgagee brought a motion seeking payment out of court of funds deposited by the defendant after redeeming a replacement vendor take‑back mortgage in foreclosure proceedings.

The defendants asserted an equitable set‑off defence alleging negligent fill operations, excess fill, and contamination affecting the property.

The court found the allegations unsupported by evidence and noted the mortgage required payment without deduction or abatement.

The defendants failed to particularize or substantiate the set‑off claim and did not demonstrate prejudice warranting a stay of payment.

The court ordered the funds paid out to the plaintiff while leaving the equitable set‑off issue to be determined separately.

The respondent father brought a motion to change interim custody of the parties' three children from the applicant mother to himself.

Following separation, the mother unilaterally relocated with the children multiple times, changing their schools and living arrangements without the father's consent or a court order.

The court found that the mother's actions disrupted the children's stability and placed her own needs ahead of theirs.

Concluding that there were compelling reasons to change the status quo, the court granted interim custody to the father, ordered access for the mother, and terminated the father's child support obligations.

A child protection proceeding concerning a newborn apprehended shortly after birth due to concerns about the mother's substance use, mental health, and ability to parent a special-needs infant.

The applicant society sought a declaration that the child was in need of protection and an order for Crown wardship without access for the purpose of adoption.

Expert psychiatric evidence concluded the mother lacked parenting capacity and would require years of intensive treatment and counselling before being able to parent safely.

The court found the child remained in need of protection and that the mother had not addressed the underlying concerns despite significant services offered.

Considering the statutory best interests factors, the court concluded that Crown wardship without access was necessary to ensure stability and permanency.

The accused brought an application under s. 520 of the Criminal Code seeking review of a detention order made by a justice of the peace.

The applicant argued that the doctrine of issue estoppel required the second bail court to follow an earlier decision releasing him on separate charges arising from related events.

The reviewing judge held that issue estoppel applies only where the identical issue was previously decided between the same parties.

Because the earlier bail hearing addressed a different charge and did not determine the risk assessment relating to the possession of stolen property offence, the issue had not previously been adjudicated.

The justice of the peace therefore committed no error of law in conducting a fresh bail analysis and ordering detention.

A commercial tenant brought an action alleging breach of an exclusive use clause in a shopping mall lease, claiming loss of profits after its restaurant business failed.

The landlord counterclaimed for unpaid rent and utilities and sought to enforce a personal guarantee provided by the tenant’s principal.

The court dismissed the tenant’s claim and found that lease covenants are independent, meaning rent remained payable regardless of the alleged breach.

The guarantor could not rely on alleged oral amendments or the absence of a separate indemnity document to avoid liability under the written guarantee.

Judgment was granted on the counterclaim for rent arrears with contractual interest and substantial indemnity costs.

During a judge‑alone criminal trial, the accused applied for a directed verdict of acquittal after the Crown closed its case.

Police executing a search warrant at an apartment discovered a loaded restricted firearm hidden inside a couch cushion and quantities of cocaine and marihuana elsewhere in the unit.

The accused was present in the living room but was not a resident of the apartment, which was leased to another individual.

The court held that the circumstantial evidence could not reasonably support inferences of knowledge or control over the firearm or drugs, which were either hidden or insufficiently connected to the accused beyond proximity.

As a result, the evidence was incapable of supporting convictions for possession of the firearm or drugs for the purpose of trafficking.

A self‑represented immigration detainee brought a habeas corpus application challenging the legality of his ongoing detention under the Immigration and Refugee Protection Act and alleging restricted access to legal resources while held in a provincial correctional institution.

The respondents argued the matter was res judicata and that the Superior Court should decline jurisdiction because the Federal Court provides a comprehensive statutory review scheme for immigration detention decisions.

The court held the res judicata argument was not established on the record.

However, it found the evidentiary record insufficient to determine whether the applicant had a meaningful remedy available through Federal Court judicial review.

The court therefore reserved its decision on jurisdiction and the merits and adjourned the application to allow the applicant to attempt to pursue remedies in Federal Court and obtain legal resources.

Following a successful second trial in an insurance coverage dispute concerning aircraft damage, the court addressed costs and pre‑judgment interest.

The plaintiff sought increased pre‑judgment interest under s.130 of the Courts of Justice Act and substantial indemnity costs under Rule 49.10 based on an earlier offer to settle.

The court exercised its discretion to increase pre‑judgment interest to 1% due to changes in market rates and the lengthy litigation, fixing interest at $7,000.

However, the plaintiff was not entitled to substantial indemnity costs because the offer to settle equaled the eventual judgment and included substantial indemnity provisions that made the judgment less favourable than the offer.

Costs for the second trial were therefore fixed on a partial indemnity basis with a reduction for the use of two senior counsel.

Following the dismissal of a motion to change seeking to terminate or reduce spousal support, the successful party sought costs on a substantial indemnity basis.

The court applied the presumption of costs under Rule 24(1) of the Family Law Rules and considered the factors under Rule 24(11).

The moving party had failed to provide reliable medical evidence supporting his alleged inability to pay support and had unilaterally ceased making support payments, leaving the responding party dependent on limited pension income.

The court found the motion lacked a proper evidentiary foundation and forced the responding party to incur unnecessary legal expenses to defend support that was critical to her livelihood.

Substantial indemnity costs were awarded.

In a class action under the Class Proceedings Act, 1992, the court determined the costs consequences of an earlier production motion concerning potentially privileged documents.

The moving parties sought production of documents held by other law firms that were within the power, possession, or control of the plaintiff.

The court had previously granted production with respect to one set of documents but denied production for another.

On the costs issue, the court held that the moving parties were successful and were entitled to costs, but that the costs should be payable in the cause given the plaintiff’s legitimate need to protect solicitor-client privilege.

The court awarded each successful moving party $10,000, all inclusive, payable in the cause.