SCJ 2014

The owner of a condominium construction project moved to reduce posted security and obtain summary judgment discharging or reducing a contractor’s construction lien claims.

The moving party argued the contractor’s liens should be eliminated or reduced because a subcontractor’s lien action had been dismissed, because contract prices allegedly contained PST eliminated by the introduction of HST, and because the owner paid $40,000 directly to a sub‑subcontractor.

The court held that dismissal of the subcontractor’s lien did not affect the contractor’s lien rights, as lien entitlement is based on the contract price between owner and contractor under the Construction Lien Act and not on the subcontractor’s separate claims.

The court also rejected the alleged PST credit due to insufficient evidence.

The motion succeeded only to the extent that the contractor’s liens and posted security were reduced by $40,000 corresponding to the direct payment to the sub‑subcontractor.

Following a prior motion decision, the parties were unable to agree on costs and sought a determination from the court.

The defendants sought substantial indemnity costs, arguing the motion was vexatious and unnecessary, while the plaintiff sought partial indemnity costs and argued the motion was required to secure payment of outstanding costs awards and attendance for an examination in aid of execution.

The court held that success on a motion must be assessed by comparing the circumstances before and after the motion and whether the motion induced compliance.

The court found the motion was necessary to obtain payment of outstanding costs awards and to secure attendance for examination.

Partial indemnity costs were awarded to the plaintiff, reduced to reflect lack of success on one issue.

Following an undefended trial in a common-law family dispute, the court addressed claims for child support, spousal support, and property remedies grounded in unjust enrichment, constructive trust, and proprietary estoppel.

The applicant alleged that the respondent used her assets to acquire numerous investment properties in Canada and Florida and concealed ownership through corporations solely controlled by him.

The court found that the parties had engaged in a joint family venture and that the respondent had wrongfully diverted and concealed assets, depriving the applicant of her contributions.

Applying principles from Kerr v. Baranow and related authorities, the court awarded a constructive trust remedy and ordered the respondent to pay US$2.2 million reflecting the value of the Florida properties.

The court also imputed income to the respondent for support purposes and ordered child support, lump sum spousal support, and related financial relief.

A third party brought a motion for summary judgment seeking dismissal of a third party claim arising from a multi-vehicle collision on the Gardiner Expressway.

The moving party relied primarily on an affidavit sworn by counsel that included excerpts from police reports and discovery transcripts, including the moving party’s own discovery evidence.

The court held that such evidence was largely inadmissible under the Rules of Civil Procedure and noted the absence of direct affidavit evidence from the moving party with personal knowledge of the events.

Given conflicting evidence about whether the third party caused the defendant to swerve and lose control, the court concluded that there was a genuine issue requiring a trial.

The motion for summary judgment was therefore dismissed and costs were awarded against the moving party.

The plaintiff commenced an action challenging a disciplinary decision made approximately 28 years earlier by the Law Society that required his resignation as a member.

The statement of claim contained brief allegations asserting unlawful conduct and fraud by the defendants but did not articulate a recognizable cause of action.

The court invoked Rule 2.1 of the Rules of Civil Procedure to screen the proceeding as potentially frivolous, vexatious, and an abuse of process.

Because the plaintiff could not be reached and the claim was plainly defective on its face, the court waived service of the Rule 2.1 notice and summarily dismissed the action.

Costs were made available to the defendants with assessment referred to an assessment officer if pursued.

The applicant sought retroactive and ongoing spousal support pursuant to the Spousal Support Advisory Guidelines despite a separation agreement that effectively eliminated further support through a net disposable income formula tied to child support payments.

Applying the two‑stage test in Miglin v. Miglin, the court examined both the circumstances surrounding the agreement’s formation and whether its continued enforcement remained consistent with the objectives of the Divorce Act.

The court concluded that enforcement of the agreement would be unconscionable because it failed to recognize the applicant’s compensatory and non‑compensatory entitlement arising from career sacrifices, primary caregiving responsibilities, and health issues.

The court found that the parties could not reasonably have contemplated that the agreement would eliminate ongoing spousal support once the respondent regained stable employment.

The court therefore overrode the relevant provisions of the separation agreement and fixed mid‑range SSAG spousal support retroactive to March 1, 2012, while extending the termination date of support.

The applicant brought a motion seeking a finding of contempt against the respondent for removing the parties’ child to Australia and remaining there for an extended period contrary to the spirit and effect of a prior custody order.

Although the original judgment permitted occasional extended trips to Australia, the court found that the respondent’s prolonged stay and failure to provide return information constituted deliberate and wilful disobedience.

The court concluded that the elements of contempt were proven beyond a reasonable doubt.

As a remedial measure, the court granted the applicant compensatory access time and addressed travel concerns, while emphasizing that family law contempt remedies should focus on promoting compliance rather than punishment.

Costs of $7,000 were awarded to the applicant, recoverable as a credit against child support through the Family Responsibility Office.

The appellant appealed convictions for sexual assault, sexual interference, sexual touching, and committing an indecent act, arguing that the trial judge misapplied the framework from R. v. W.(D.) and failed to properly consider whether the accused’s evidence, even if disbelieved, could raise a reasonable doubt.

The appellant contended that the trial judge’s language suggested the burden shifted to the accused to raise a defence.

The appellate court reviewed the reasons as a whole and concluded that the trial judge understood and correctly applied the W.(D.) framework and the reasonable doubt standard.

Any problematic wording was characterized as a language issue rather than a legal error.

Deference was owed to the trial judge’s credibility findings on a summary conviction appeal.

Plaintiffs commenced an action alleging fraud, deception, and improper conduct arising from a series of mortgage and financial transactions involving real estate properties and business dealings.

The court held the action turned primarily on credibility and preferred the defendant’s evidence over that of the principal plaintiff.

The court found the plaintiff’s testimony inconsistent and unreliable, and concluded many claims were barred by the Limitations Act, 2002 and further defeated by the corporate veil where the transactions involved corporate entities rather than the individual plaintiff.

The plaintiffs failed to establish any contractual or legal basis for personal recovery.

The action was dismissed and judgment was granted on the defendant’s counterclaim for the outstanding mortgage balance.

The parties brought cross-motions regarding temporary care of their children, spousal support, and exclusive possession of the matrimonial home.

The father sought an equal shared parenting schedule to align with his shift work, while the mother sought temporary spousal support and exclusive possession of the home.

The court dismissed both motions, maintaining the status quo of the children residing primarily with the mother for five out of eight nights.

The court also declined to award spousal support due to minimal income disparity and dismissed the request for exclusive possession as the father had voluntarily vacated the home without disturbing the mother's possession.

Sentencing following convictions for repeated sexual assault, sexual interference, and physical assaults committed by an adult offender against a vulnerable child over approximately two years.

The court held that denunciation, deterrence, and separation from society predominated under the Criminal Code, found the complainant's age, vulnerability, grooming, repeated intercourse, violence, non-traditional trust relationship, and concealment from child protection authorities to be significant aggravating factors, and gave minimal weight to the offender's own abuse history.

The court declined to grant credit for restrictive bail conditions because the offender breached those conditions and reoffended while on release.

A penitentiary sentence of eight years was imposed together with lifetime sex offender registration, DNA, weapons prohibition, and lifetime child-contact restrictions.

Following summary judgment determining that a franchisor’s 12‑month termination notice to a long‑time franchisee was inadequate, the court determined the appropriate reasonable notice period and resulting damages.

The court rejected arguments that the notice period should correspond to a proposed franchise renewal term or to employment-law notice ranges exceeding 20 months.

While acknowledging that franchise relationships share characteristics with employment relationships, the court emphasized that franchisees remain independent contractors and must bear business risk.

Considering the length of the relationship, the franchisee’s satisfactory performance, the absence of bad faith, and the independent contractor status, the court held that 18 months’ notice was reasonable.

Damages equal to six additional months of income were awarded.

Following a jury verdict awarding the plaintiff $108,000 for injuries sustained in a motor vehicle collision, the defendants brought a threshold motion under the Insurance Act.

The defendants argued the plaintiff failed to prove a permanent serious impairment of an important physical function.

The court preferred the evidence of the plaintiff's chronic pain expert over the defence's orthopaedic surgeon, finding the plaintiff suffered a permanent and serious impairment that prevented her from continuing her employment as an exotic dancer.

The defendants' motion was dismissed.

The applicant and respondent dentists operated a joint venture general dentistry practice.

The respondent returned to school to become a specialist, reducing his hours but maintaining his draw.

The applicant gave 90 days' written notice to terminate the joint venture.

When the parties could not agree on the mechanics of separation, the applicant sought a declaration of termination and sole ownership.

The court granted the application, declaring the joint venture terminated effective June 30, 2014, ordering the respondent to vacate the practice, and directing the parties to proceed with a valuation and buyout of the respondent's interest.

A commercial property owner sought reimbursement from a real estate brokerage for marketing and advertising expenses incurred after retaining a third-party marketing firm during a listing agreement.

The owner argued the agreement required the brokerage to bear marketing and promotional costs.

The court interpreted the agreement in light of the factual matrix and commercial reasonableness, emphasizing that external marketing costs were subject to mutual agreement and that the brokerage was engaged primarily to sell or lease real estate, not to underwrite independent marketing initiatives.

The court also considered the owner's subsequent conduct, including retaining a marketing firm without consultation and raising the reimbursement claim only after receiving a demand for signage costs.

The court concluded that the agreement did not obligate the brokerage to reimburse the owner for the claimed expenses.

The accused, charged with drug trafficking offences, brought a Charter application alleging violations of his rights under sections 8 and 9.

He argued his warrantless arrest was arbitrary and that the search of his motel room was unreasonable due to a defect in the Information to Obtain (ITO) and the search warrant.

The court found the police had reasonable and probable grounds for the arrest based on tipster information and surveillance.

The court also held that the search warrant was valid despite an inadvertent error in the ITO, as the issuing justice could not have been misled and there were ample grounds to grant the warrant.

The Charter application was dismissed.

A municipality sought a costs award of approximately $93,000 in relation to an application concerning enforcement orders under the Building Code Act, 1992 tied to the conversion of a former school into a retirement residence.

The application had not been finally adjudicated and most issues appeared to have been resolved without substantive judicial determination after the eventual issuance of a building permit.

The court held that entitlement to costs requires findings regarding success and the parties’ conduct, which were absent due to the lack of adjudication on the merits and limited judicial involvement.

Given the possibility that the matter resolved through compromise and the absence of clear success by either party, the court declined to exercise its discretion to award costs.

The municipality’s motion for costs was therefore dismissed.

The plaintiff brought a motion seeking to compel the defendants to participate in binding arbitration, appoint an arbitrator, and stay the court action pending arbitration arising from a commercial services contract.

The contract containing the arbitration clause was between the plaintiff and one defendant only, while the action also named a second defendant who was not a party to the arbitration agreement.

The court held that under s. 7 of the Arbitration Act, 1991 a party who commenced a court proceeding cannot move for a stay of that proceeding in favour of arbitration.

The court further found that compelling arbitration against only one defendant while staying the action against the other would risk multiplicity of proceedings and inconsistent results.

The motion was dismissed and the matter allowed to proceed in a single court proceeding.

The accused was charged with two counts of obstruction of justice and two counts of intimidation of justice system participants after confronting individuals connected to sexual assault allegations against her spouse.

The Crown alleged the accused attempted to pressure witnesses to recant statements made to police.

The court found the accused engaged in aggressive conduct toward the father of one complainant, including repeated accusations of lying, threats of civil litigation, and emotionally charged statements intended to influence the complainant’s testimony.

The court concluded that this conduct constituted a wilful attempt to obstruct justice contrary to s. 139(2) of the Criminal Code.

However, the evidence relating to alleged intimidation and obstruction involving the accused’s daughter raised a reasonable doubt, and the accused was acquitted on those counts.

The court conducted an assessment of damages following a prior ruling that the defendant’s security interest in the plaintiff’s equipment was invalid under s. 89(1) of the Indian Act.

The defendant had seized the equipment based on the invalid security interest, constituting the tort of conversion.

The court determined the fair value of the seized equipment using expert appraisal evidence and awarded damages reflecting the depreciated condition of the equipment.

The court also awarded limited loss of income damages, finding the plaintiff failed to adequately mitigate losses and restricting compensation to a one‑year period with a modest adjustment for borrowing difficulties.

Punitive damages were additionally awarded after the defendant’s agent improperly involved police in what was a civil debt dispute and falsely characterized the plaintiff as a thief.