SCJ 2014

The plaintiff brought a motion to set aside a registrar’s order dismissing the action for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the contextual analysis and the four Reid factors governing motions to set aside dismissal orders.

The court found the plaintiff failed to provide an adequate explanation for extensive litigation delay, failed to establish that missing the deadline was inadvertent, and failed to bring the motion promptly after learning of the dismissal.

Although the defendants did not establish significant litigation prejudice, the court emphasized finality, chronic delay, and deficient evidence from the plaintiff.

The motion to set aside the dismissal order was dismissed.

A systems integration contractor sued an electrical subcontractor for breach of contract on two correctional facility projects involving integrated security systems.

The dispute concerned the scope of work, including responsibility for supplying and installing wiring and terminating field devices.

The court found the subcontractor breached the contracts by refusing to perform required work and drew an adverse inference due to spoliation of electronic evidence and fabricated quotes.

The subcontractor’s counterclaim for unpaid work was dismissed.

The court also held the company’s principal personally liable for breach of the statutory trust under the Construction Lien Act but declined to declare the debt non‑dischargeable in bankruptcy.

A corporation operating under a registered business name commenced a construction lien action seeking payment of management fees, reimbursable expenses, and loss of profit arising from a residential construction management contract.

The homeowners disputed the lien, arguing they believed they were contracting with individuals rather than the corporation and alleging improper invoicing under the Business Names Act.

The court found the parties clearly understood that the corporation operating as the business name was the contracting construction manager and that any technical deficiency in identifying the corporate name on invoices caused no prejudice.

The court upheld the lien claim, finding the disputed charges fell within the contractual reimbursement and management fee provisions.

The homeowners’ counterclaim and a separate personal action against the corporate principals were dismissed.

A construction lien dispute arose between a masonry contractor and homeowner defendants concerning the pricing method for bricklaying and stone masonry work on a new residential build.

The contractor asserted a pricing structure based on a per‑brick charge for brickwork and a per‑square‑foot charge for stone, while the homeowners argued that all work was priced solely on a per‑square‑foot basis.

The court preferred the contractor’s interpretation of the contract and found the defendants’ calculation incorrect.

The court also held the lien was preserved and perfected within the time limits under the Construction Lien Act because minor finishing work remained when the lien period began running.

Judgment was granted for the contractor for the unpaid balance and the homeowners’ counterclaim and related personal action against the company principal were dismissed.

Following a trial where the plaintiffs succeeded on liability for nuisance and trespass against a neighbouring trucking company, the Court of Appeal ordered that the plaintiffs recover their costs of the liability portion of the trial, with quantum to be determined by the trial judge.

The court considered the principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including proportionality, indemnity, reasonable expectations of the losing party, complexity, and the hours reasonably expended.

The court rejected arguments that the plaintiffs’ trial preparation time was excessive and accepted that approximately 75% of the trial concerned liability rather than damages.

Applying partial indemnity rates and allocating costs proportionately, the court fixed the recoverable trial costs and apportioned joint and several liability for the trespass portion of the claim.

The plaintiff brought a motion for leave to amend its statement of claim to substitute two corporate defendants after discovering that the originally named defendant corporation never existed.

The proposed substitutions were sought on the basis of misnomer under Rules 5.04(2) and 26.01 of the Rules of Civil Procedure.

The court held that the circumstances constituted misnomer because the litigation was clearly directed at corporations controlled by the same principal, and a reasonable reader would understand that the claim was intended for those entities.

The court further found no non‑compensable prejudice, as the proposed defendants had knowledge of the claim and had effectively defended the action from the outset.

Leave to amend and substitute the proper corporate defendants was granted, and the substituted defendants were ordered to satisfy a prior interlocutory costs order.

The accused applied to exclude evidence, including a loaded handgun, seized from a hotel room following a warrantless police entry.

The accused argued the initial police entry violated s. 8 of the Canadian Charter of Rights and Freedoms and sought exclusion under s. 24(2).

The court held that the accused did not have a reasonable expectation of privacy in the hotel room because his lawful entitlement to occupy the room had expired before police entered.

In the alternative, the court found that the brief warrantless entry by police was justified as a safety search to secure a firearm and ensure no persons remained in the room.

The application to exclude the evidence was dismissed.

The court imposed sentence following a second finding of civil contempt for breach of a prior sentencing order that required the contemnor to remain within Ontario.

Despite a stay expiring and an obligation to return to Canada, the contemnor chose to remain in Europe to complete a vacation, making only minimal efforts to alter travel arrangements.

The court found significant aggravating factors, including the repeat contempt and a demonstrated disregard for court authority, while identifying minimal mitigation.

Emphasizing denunciation and specific deterrence, the court imposed a seven‑month conditional sentence and extended probation with strict travel restrictions and community service.

Following a prior decision on a family law motion concerning custody and parenting arrangements, the court determined the issue of costs.

The respondent mother was found to be the successful party.

The court rejected the argument that costs should not be awarded in custody and access disputes and applied the Family Law Rules governing costs, including Rule 24(11).

After reviewing the parties’ conduct, the reasonableness of settlement offers, and the complexity and importance of the issues affecting the children, the court reduced the claimed fees to a reasonable level.

The applicant father was ordered to pay fixed costs to the respondent.

The Crown appealed a sentence imposed after the respondent pleaded guilty to offences under ss. 153(a) and 153(c) of the Customs Act for falsely declaring imported goods and wilfully attempting to evade duties and taxes exceeding $20,000.

The sentencing judge had granted a conditional discharge with probation and community service.

The appeal court found the sentencing judge erred by concluding the respondent had not deliberately attempted to evade duties despite the guilty plea to a wilful offence.

While the judge properly considered civil penalties and immigration consequences, the deliberate nature of the offence made a conditional discharge contrary to the public interest.

The appeal court set aside the discharge and imposed fines while maintaining probation and community service.

Following a successful motion to strike the respondent’s motion to change support orders in a matrimonial proceeding, the applicant sought costs of $11,719.07.

The respondent filed no written submissions opposing the costs request.

The court reviewed the applicant’s bill of costs and found the amount fair and reasonable.

Full costs were awarded payable within 30 days.

Following a prior decision granting summary judgment on liability to the plaintiff, the court considered the issue of costs.

The plaintiff sought costs of the summary judgment motion and the proceeding to date.

The court noted that the potential range of damages remained uncertain and could significantly affect the appropriate costs disposition.

Because damages might ultimately be minimal or reflect only disgorgement of profit, the court held that the proper allocation of costs could not yet be determined.

Costs were therefore reserved pending the final determination of damages.

The defendant brought a motion for summary judgment seeking dismissal of claims arising from alleged oral agreements among siblings relating to a condominium investment in China and loans allegedly advanced to the defendant to purchase a property in Ontario.

The defendant argued lack of jurisdiction, forum non conveniens, abuse of process due to a parallel Small Claims action, and that the claims were statute‑barred under the Limitations Act, 2002.

The court held that it possessed in personam jurisdiction over the Ontario-resident defendant and that the claims sought damages rather than a declaration of title to foreign land.

The court further concluded that Ontario was not an inappropriate forum and that genuine issues requiring a trial existed, including the existence of the alleged agreements and the discoverability of the limitation periods.

The defendant’s summary judgment motion was dismissed and the plaintiffs’ cross‑motion to amend pleadings and transfer and consolidate the Small Claims Court action was granted.

Following a lengthy family law trial addressing custody, access, and support, the successful parent sought costs of approximately $47,000 after obtaining a shared parenting regime through joint custody.

The moving party relied on multiple offers to settle under the Family Law Rules and argued entitlement to full recovery of costs from the dates of the offers.

The court confirmed the presumption that the successful party is entitled to costs and found the claimed legal fees, hourly rates, and disbursements reasonable.

However, exercising discretion under the Family Law Rules, the court reduced the requested amount due to the responding party’s financial circumstances, the parties’ income disparity, and the need to avoid exacerbating conflict in a newly established shared parenting regime.

The court awarded partial indemnity costs of $30,000 and permitted set-off against the equalization payment but declined to permit set-off against child support arrears.

The accused applied for release following a detention review under s. 525 of the Criminal Code after remaining in custody following a denied bail hearing.

The Crown argued that the court could only conduct a detention review under s. 515(10) where unreasonable delay in the proceedings had first been established.

The court rejected that interpretation and held that s. 525 allows the reviewing judge to consider whether continued detention is justified even absent proven delay.

The accused presented a new release plan involving supervision by her parents and participation in treatment for substance abuse.

The court concluded that continued detention was not justified and ordered release on strict conditions.

In ongoing restructuring proceedings under the Companies’ Creditors Arrangement Act, the debtor company sought court approval of a coke conversion agreement with its parent corporation.

The motion was brought on an urgent basis due to operational deadlines relating to coal shipments and winter shipping constraints on the Great Lakes.

The monitor supported the agreement and reported that it would be cash‑flow positive, would recall employees from temporary layoff, and would not interfere with the ongoing sales and restructuring process.

The court held that it had jurisdiction under s. 11 of the CCAA and found the agreement appropriate in the circumstances.

A sealing order was also granted to protect confidential commercial information contained in an unredacted version of the agreement.

Following a three‑vehicle rear-end collision, the middle driver and the corporate owner of the vehicle sought summary judgment dismissing a co‑defendant driver’s crossclaim for contribution and indemnity.

The uncontested evidence established that the moving party’s vehicle had been stopped at a red light for several seconds before being struck from behind and pushed into the plaintiff’s vehicle.

The responding party relied primarily on an affidavit from counsel asserting potential issues for trial.

The court held that lawyers’ affidavits generally do not provide admissible evidence of “specific facts” required under Rule 20.02 of the Rules of Civil Procedure and cannot substitute for firsthand evidence.

Finding no evidence capable of establishing liability against the moving party, the court granted summary judgment and dismissed the crossclaim.

The plaintiff insurance brokerage sought an interim interlocutory injunction restraining former employee producers and their new employer from soliciting or dealing with certain customers pending a full motion hearing.

The court applied the three‑part test from RJR–MacDonald for interlocutory injunctions.

While there appeared to be a strong prima facie case against one former employee, the evidence against the others was largely speculative, and the alleged harm was found to be quantifiable through damages given the nature of the brokerage business.

Considering the balance of convenience, delay by the plaintiff, and the availability of undertakings proposed by the defendants, the court declined to grant the requested interim injunction and instead accepted undertakings pending the return of the motion.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg under the Criminal Code.

The appeal argued that the trial judge erred in determining that the breath samples were taken within two hours of the appellant last operating the vehicle, thereby improperly applying the statutory presumption under s. 258.

The appellate court reviewed the trial judge’s credibility findings concerning a civilian witness and police officer regarding the timing of events.

It held that the trial judge was entitled to accept portions of the witness’s evidence while rejecting others and that the factual findings were supported by the evidence.

No palpable or overriding error was found in the determination that the breath tests were taken within the required two‑hour window.

During a criminal trial for drug importation, the accused challenged a second strip search conducted by RCMP officers after a prior search by border officials had already occurred.

The search was conducted in a cell with the door open and video surveillance operating, without supervisory authorization and without confirming whether a prior strip search had already taken place.

The court held that the second strip search was conducted as a matter of routine and lacked reasonable grounds, breaching the accused’s s. 8 Charter right against unreasonable search.

Applying the framework from Grant, the court concluded that the seriousness of the institutional breach outweighed the other factors.

The accused’s recorded police statement, obtained shortly after the search, was excluded under s. 24(2).