SCJ 2014

The plaintiff mortgagee brought a motion for summary judgment seeking payment of a mortgage debt, possession of the mortgaged commercial property, dismissal of the defendants’ counterclaim, and leave to issue a writ of possession.

The defendants sought an adjournment to obtain counsel and additional documentation and argued that the mortgage assignment and notice requirements were defective.

The court held that the defendants failed to produce documentary evidence supporting their claims of mortgage renewal or payments and did not meet their obligation to put their best foot forward on the motion.

The court further found that notice of assignment through a notice of sale satisfied statutory requirements and that the mortgage was clearly in default.

Summary judgment and possession were granted, with issuance of a writ of possession delayed for thirty days to allow occupants to vacate.

The accused brought a Charter application seeking exclusion of evidence obtained pursuant to a search warrant.

The applicant argued the search violated s. 8 of the Canadian Charter of Rights and Freedoms and sought exclusion of the evidence under s. 24(2).

After considering the evidentiary record, including cross‑examination of the investigating detective and submissions from both parties, the court found no basis to exclude the evidence.

The application to exclude the fruits of the search warrant was dismissed.

Following a 20‑day trial in which the plaintiffs obtained judgment exceeding $2.3 million against their insurance broker for failure to procure appropriate coverage, the court determined issues relating to the calculation of the judgment, costs, and interest.

The plaintiffs had delivered a Rule 49 offer to settle for $1.95 million plus interest and costs, which was less than the amount ultimately awarded at trial.

Applying Rule 49.10 of the Rules of Civil Procedure, the court held that the plaintiffs were entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Considering proportionality, the conduct of the parties, the length of the trial, and duplication arising from a change of counsel, the court reduced the plaintiffs’ claimed costs and fixed total costs at $475,000 plus disbursements.

The accused was convicted after trial of unlawful possession of a loaded prohibited firearm and possession of a firearm while subject to a prohibition order under the Youth Criminal Justice Act.

The court considered aggravating factors including possession of a loaded handgun in public while under a prohibition order and while partially impaired by alcohol and marijuana, as well as the accused’s youth record.

Mitigating factors included the offender’s youth, lack of an adult criminal record, strong family and community support, employment prospects, and potential for rehabilitation.

Emphasizing denunciation and deterrence for gun crimes while recognizing rehabilitation prospects, the court imposed a total sentence of three and a half years.

Enhanced credit of 1.5:1 was granted for pre‑sentence custody, resulting in credit of 29 months.

In a motion arising from an application relating to municipal council conduct, the court addressed refusals made during examinations for discovery and whether the applicant must disclose the identity of individuals financing the litigation.

Respondent councillors had refused to answer questions about matters discussed during closed municipal council meetings under s. 239 of the Municipal Act.

The court held that in camera municipal meetings are not cloaked with confidentiality and that councillors may be required to disclose what transpired, subject only to solicitor-client privilege.

The court also ordered the applicant to disclose the identity of the person or persons who funded the legal retainer, rejecting claims that solicitor-client or litigation privilege protected the identity of the financiers.

Following a successful disability insurance action, the plaintiff sought costs on a substantial indemnity basis, arguing the defendants’ conduct before and after litigation justified enhanced costs.

Alternatively, the plaintiff sought partial indemnity costs up to the date of a settlement offer and substantial indemnity thereafter under Rule 49.

The defendants argued costs before the offer should be reduced due to the plaintiff abandoning a related wrongful dismissal claim.

The court held that partial indemnity costs remained the default before the settlement offer but reduced those fees by 25% to account for the abandoned claim.

Substantial indemnity costs were awarded from the date of the offer forward, resulting in a total costs award exceeding $114,000.

The defendant corporation moved for summary judgment dismissing a claim in which the plaintiff sought declarations of ownership of company shares and oppression relief under the Business Corporations Act.

The plaintiff alleged entitlement to common and Class B shares arising from an asset purchase agreement and option agreement connected to the sale of an engineering business.

The court held that the plaintiff failed to comply with the contractual requirements for subscribing to the shares, including payment and exercise of the option price specified in the agreements.

As a result, the plaintiff never acquired shareholder rights and the claim had no reasonable prospect of success.

Summary judgment was granted dismissing the action in its entirety.

The moving party sought an order under Rule 48.14(16) of the Rules of Civil Procedure setting aside a registrar’s order dismissing his action for delay.

The underlying action between brothers sought recovery of more than $400,000 allegedly arising from loans dating back to the 1990s.

The court reviewed the contextual factors governing motions to set aside dismissal for delay, including explanation for delay, inadvertence, promptness in bringing the motion, and prejudice to the responding party.

The court found lengthy unexplained inactivity, insufficient evidence of inadvertence, lack of prompt action after learning of the dismissal, and a failure to rebut presumed prejudice arising from limitation issues and evidentiary concerns.

In the circumstances, it was not just to permit the action to proceed.

The plaintiffs brought an urgent motion for interim and interlocutory injunctive relief to restrain the defendants from completing a share sale pursuant to a unanimous shareholders agreement in the context of a shareholder dispute.

The plaintiffs alleged improper termination of a director and employment relationship and sought to preserve the status quo pending trial.

Applying the test for interlocutory injunctions from RJR‑MacDonald v. Canada (AG), the court accepted that a serious issue to be tried existed but held that the plaintiffs failed to demonstrate irreparable harm.

The court found that the remedies sought, including share valuation and damages, could be adequately compensated monetarily at trial.

As a result, the motion for injunctive relief was dismissed and costs were awarded to the defendants.

The applicant sought mandamus compelling issuance of criminal process after a justice of the peace refused to issue process under s. 507(1) of the Criminal Code for proposed charges of theft over $5,000, fraud over $5,000, and forgery against a third party.

The court reviewed whether the justice of the peace committed jurisdictional error or failed to exercise discretion judicially in concluding that no prima facie case existed.

The evidence consisted largely of the applicant’s testimony concerning a company cheque and invoices allegedly connected to fraudulent conduct.

The court held the record contained no evidence establishing essential elements of the alleged offences, including personal receipt of funds, fraudulent deprivation, or creation of false documents by the proposed accused.

The justice of the peace properly exercised the gatekeeping function under s. 507(1), and mandamus was not available.

Investors brought negligence claims against their former financial advisor and related entities arising from failed hedge fund investments.

The defendants moved for summary judgment arguing the claims were statute‑barred under the Limitations Act, 2002.

The court held that the plaintiffs discovered or ought to have discovered their claim when they learned between 2005 and 2007 that the investment had failed and that it had been recommended by their advisor as low risk.

Knowledge of the precise cause of the fund’s collapse or later revelations about the advisor’s insurance status did not postpone discoverability.

The court also rejected allegations of fraudulent concealment.

The negligence claims relating to the investment were dismissed as statute‑barred.

A secured creditor sought disclosure of financial information under a general security agreement and s. 18 of the Personal Property Security Act after the debtor and another secured party failed to provide requested information.

The proceeding ultimately resolved after undertakings were given during cross‑examination and the disclosure was substantially provided.

On a subsequent costs motion, the court held the respondents had unreasonably resisted disclosure and filed extensive irrelevant evidence to delay the proceeding.

The court found this conduct constituted reprehensible litigation behaviour warranting elevated costs.

Substantial indemnity costs were awarded to the applicant.

The applicant father brought a motion for sole custody of the parties' two children, relying on a section 30 assessment that found the respondent mother was severely alienating the children.

The assessor testified that the mother's influence caused parentification, insecure attachment, and a shared delusion, including false allegations of abuse against the father.

Finding this to be an exceptional case where the assessor's recommendations must be acted upon immediately to prevent grave psychological harm, the court granted the father temporary sole custody, ordered no contact between the mother and children, and terminated the father's child support obligations.

The moving defendants sought to lift restrictions imposed by an earlier order preventing them from disposing of or encumbering property and related equipment pending a motion for a Mareva injunction.

The court characterized the prior order as a consent order reflecting an agreement between the parties, with undertakings that had expired but were subject to extension pending further order.

Applying the RJR‑MacDonald test for injunctive relief, the court found that the plaintiffs had established a serious issue to be tried regarding alleged fraudulent conveyances under the Fraudulent Conveyances Act.

The court also found a real possibility of irreparable harm if the property were encumbered to secure existing liabilities.

The balance of convenience favoured maintaining the restrictions, subject to a limited exception permitting encumbrances for bona fide new financing used in the ordinary course of business.

The accused brought a Charter application under ss. 8 and 24(2) seeking to exclude evidence seized pursuant to a search warrant for a residence and motor vehicle in a cocaine trafficking investigation.

The accused alleged misrepresentations, omissions, and insufficient grounds in the information to obtain (ITO), including issues relating to confidential informants and the accused’s connection to the searched residence.

Applying the Garofoli framework and the principles governing confidential informant information in Debot, the court reviewed the amplified record including cross-examination of the affiant.

Although certain information about the accused’s possible alternate address and “no fixed address” status had been omitted from the ITO, the court found the omissions were not made in bad faith and that sufficient grounds remained.

The court concluded there were reasonable and probable grounds to believe the accused was trafficking cocaine and that evidence would be found at the residence and vehicle.

In a proposed class proceeding under the Class Proceedings Act, 1992, the moving party brought an omnibus motion seeking multiple procedural and evidentiary orders affecting the record for a certification motion.

Most of the relief sought was either abandoned or dismissed, with only minor unopposed amendments granted.

The court held that the respondents were entitled to costs because the moving party was largely unsuccessful.

Although the respondents sought over $30,000 including substantial indemnity costs for abandoned claims, the court rejected punitive costs and applied the partial indemnity scale.

A proportionate costs award of $20,000 all-inclusive was ordered.

The plaintiffs sought damages for breach of contract and unjust enrichment arising from development credits issued by a municipality after road construction on land previously owned by the plaintiffs.

The land was sold multiple times, and the ultimate purchaser obtained a building permit and received the development credits.

The court applied the Supreme Court of Canada’s three‑part test for unjust enrichment and found that although the defendant received a benefit and the plaintiffs suffered a corresponding deprivation, recovery should be denied.

The court concluded that the reasonable expectations of the parties defeated the claim because the defendant paid a premium for the land reflecting the credits and had no knowledge that the credits were intended for the plaintiffs.

Following earlier family law reasons, the court addressed outstanding issues relating to child support and costs.

The moving party sought child support for an adult child, arguing the child remained a “child of the marriage” under the Divorce Act.

The court found the evidence did not establish that the adult child met the statutory definition and also found the responding party lacked the means to pay support.

On costs, success was divided: the responding party succeeded on spousal support but failed on the limitation issue relating to an equalization claim, while the moving party’s claim for child support failed.

In the circumstances, the court ordered that there be no order as to costs.

The defendant brought a motion seeking to discharge a certificate of pending litigation registered against disputed lands, to require the plaintiff to pay $300,000 into court in exchange for the certificate, and to compel answers and undertakings arising from examinations for discovery.

Due to time constraints, the motion proceeded only on the refusals and undertakings issues.

The court reviewed the disputed discovery questions and ordered several further and better answers, production of the plaintiff’s current insurance policy, and additional itemized responses regarding claimed expenditures and work performed on the property.

Some requests were found premature, while others required re‑attendance at discovery.

The balance of the relief sought was adjourned to a later date, with costs reserved.

The plaintiff contractor sued the defendant homeowners for unpaid progress payments and extras on a home renovation project.

The defendants counterclaimed for the cost of completing the work, correcting deficiencies, and delay damages, alleging the plaintiff abandoned the job.

The court found that the defendants breached the contract by refusing to pay a progress invoice and failing to negotiate reasonably.

The court awarded the plaintiff $19,978, calculated by taking the balance owed on the contract and extras, less credits to the defendants for incomplete and deficient work.