SCJ 2014

Following a successful Rule 21 motion striking the plaintiff’s amended statement of claim for failure to disclose a reasonable cause of action, the defendant sought costs of approximately $32,247.

The plaintiff argued the amount was excessive and emphasized his limited financial means, reliance on social assistance, and mental health challenges preventing stable employment.

The court reviewed the principle of reasonableness governing costs awards and the jurisprudence on whether a party’s impecuniosity may be considered.

The court concluded the claimed amount was excessive and determined that, in the circumstances, it was appropriate to consider the plaintiff’s financial hardship.

Exercising its discretion, the court declined to award any costs.

A former senior executive sued for wrongful dismissal after termination without cause.

The dispute concerned whether a later employment document replaced an earlier agreement containing a 12‑month severance clause, the appropriate reasonable notice period, and entitlement to bonus payments.

The court held the later document constituted a new employment agreement that displaced the earlier severance provision, leaving notice to be determined under the common law.

Applying the Bardal factors, the court awarded a 12‑month reasonable notice period despite the employee’s relatively short tenure and rejected the employer’s proposed three‑month period.

The court also denied the employee’s claim to bonus payments because the bonus plan required active employment at the payout date.

The plaintiff brought an undefended action seeking damages after her checked luggage went missing during international air travel from Canada to Togo.

She claimed extensive expenses, medical costs, emotional distress, and punitive damages following delays in recovering the baggage.

The court held that liability for lost or delayed baggage in international carriage by air is governed by the Montreal Convention, 1999, incorporated into Canadian law by the Carriage by Air Act, which limits recovery to 1,000 Special Drawing Rights unless additional insurance was purchased.

Claims for pain and suffering, emotional distress, and punitive damages were barred by the Convention.

The court awarded the capped compensation amount for delayed baggage together with reimbursement of an improperly charged airline upgrade fee.

A manufacturing company sued a scrap metal dealer in conversion after stolen industrial dye blocks and related materials were sold to the dealer by a third party thief.

The court held that conversion is a tort of strict liability and that the dealer was liable for purchasing and reselling property belonging to the plaintiff, even if done in good faith.

Arguments that the plaintiff had been on notice of potential theft or contributorily negligent were rejected.

Due to incomplete records and uncertainty regarding the precise quantity of stolen goods, the court approximated the amount converted and assessed damages based primarily on replacement metal cost and associated fabrication expenses rather than scrap value.

Judgment was awarded for damages reflecting the value of converted dye blocks and related losses.

An elderly condominium unit owner was allegedly injured when an unleashed dog owned by other residents attacked her on the condominium’s common elements.

The plaintiff sued the dog owners under the Dog Owners' Liability Act and the condominium corporation for negligence and under the Occupiers’ Liability Act.

The condominium corporation brought a Rule 21 motion to dismiss the action, arguing that the Dog Owners’ Liability Act exclusively governed liability and that it was not a dog owner or harbourer.

The court held that the Act does not preclude negligence or occupiers’ liability claims against a non‑owner of the dog and that it was not plain and obvious the claim against the condominium corporation could not succeed.

The motion to dismiss was therefore refused.

The plaintiffs brought a motion to amend their statement of claim in a negligence action arising from a fatal motor vehicle collision.

They sought to add claims for post‑traumatic stress disorder suffered by a surviving spouse and related income loss, as well as expanded Family Law Act damages for a child.

The defendants argued the amendment introduced a new cause of action outside the limitation period and improperly pleaded evidence.

The court held the proposed amendment merely added a new head of damages arising from the same material facts already pleaded and therefore did not constitute a new cause of action.

The amendment was permitted, except for portions that improperly pleaded evidentiary details.

The plaintiff brought a motion to set aside a registrar’s dismissal of a personal injury action arising from a motor vehicle accident under Rule 48.14 of the Rules of Civil Procedure.

The court applied the four factors from Reid v. Dow Corning Corp., namely explanation for the litigation delay, inadvertence in missing the deadline, promptness in bringing the motion, and prejudice to the defendant.

The court found that the plaintiff failed to adequately explain extensive delays in advancing the litigation, failed to demonstrate inadvertence, and did not bring the motion promptly, waiting over three years after learning of the dismissal.

Although there was no evidence of actual prejudice to the defendant, the court held that the principle of finality constituted prejudice after such an inordinate delay.

The motion to set aside the dismissal was therefore dismissed.

Shareholder applicants brought a contempt motion alleging that a respondent failed to comply with a prior court order requiring disclosure of financial documents and restrictions on dealing with corporate trading account funds.

The motion had previously been adjourned due to inadequate notice and dismissed without prejudice due to lack of evidence of service.

The applicants attempted to re‑bring the motion supported by an affidavit of service sworn by their own counsel.

The court held that Rule 4.02(1) of the Law Society of Upper Canada Rules of Professional Conduct prohibits counsel appearing as advocate from submitting their own affidavit except in unusual circumstances, which were not present.

The court adjourned the contempt motion sine die until proper evidence of service and compliance with procedural and professional conduct rules were provided.

The court-appointed receiver moved for approval of the sale of the debtor's real property, approval of its fees, and authorization to make distributions.

The debtor opposed the motion, seeking disclosure of the unredacted purchase agreement and confidential appendices without signing the receiver's proposed confidentiality agreement.

The court held that the confidentiality agreement was reasonable and necessary to protect the integrity of the sales process.

Applying the Soundair criteria, the court found the receiver's marketing process and the proposed sale were commercially reasonable.

The court approved the sale, the receiver's fees, and the interim distribution, and granted a sealing order for the confidential appendices.

The moving party sought an order at the commencement of trial declaring entitlement to enforce notarized debt acknowledgments against the respondents as if judgments had already been obtained, and requiring payment of the amounts stated in those instruments.

The motion relied on a prior decision determining that the applicable limitation period for enforcement of German Submissions for Compulsory Enforcement was 30 years and argued that the earlier ruling created issue estoppel preventing the respondents from contesting certain matters at trial.

The court held that the prior motion addressed only the applicable limitation period and did not finally determine questions regarding the identity of the holder of the acknowledgments, the validity of their assignment, or the amount owing.

Because those issues were not essential to the earlier decision and were not conclusively determined, the doctrine of issue estoppel did not apply.

The respondents were therefore entitled to raise those issues at trial.

Following an unsuccessful summary judgment motion brought by a third party in a slip-and-fall action, the court determined the appropriate costs award payable to the defendant municipality.

The motion had concerned contractual interpretation, contribution and indemnity between a municipality and its snow removal contractor, and the applicable negligence standard.

The court held that summary judgment was inappropriate due to the absence of the plaintiff’s evidence and the need to determine fault at trial.

Applying section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed what was fair and reasonable in light of the parties’ competing cost submissions.

Costs were fixed at a midpoint between the amounts proposed by the parties.

Four accused were charged with possession of cannabis resin for the purpose of trafficking after police intercepted shipping containers from Pakistan containing chromium ore concealing approximately 4.6 metric tons of cannabis resin.

Police removed the drugs and conducted a controlled delivery of a sample to a Toronto warehouse, where the accused were arrested after entering the premises.

The Crown relied on circumstantial evidence including surveillance, fingerprint evidence, and the accused’s association with the shipment and each other.

The court held that the evidence did not establish beyond a reasonable doubt that any accused had knowledge or control of the hidden drugs.

Alternative inferences consistent with innocence remained available, including the possibility that the accused were unwitting participants in the shipment’s handling.

The offender was convicted of three counts of robbery and three counts of using an imitation firearm during a robbery.

The Crown sought to prove a real firearm was used, but the court found it was an imitation firearm.

The court considered aggravating factors, including the vulnerability of the victims and the impact on them, and mitigating factors, including the offender's youth, lack of criminal record, and impending deportation.

The court sentenced the offender to a global term of five years imprisonment, less 28 months credit for pretrial custody.

The applicant father sought to vary a prior custody order under s. 17 of the Divorce Act to obtain sole custody of the parties’ child, relying heavily on an Office of the Children’s Lawyer report recommending a transfer of custody.

The court found the OCL report unreliable because key witnesses were not properly interviewed with interpreters and relevant medical and daycare information was not considered.

Evidence showed the child was thriving in the respondent mother’s care and that allegations of medical neglect and safety concerns involving the mother’s friend were unsupported by the evidence and prior investigations.

The court also found the father not credible and concluded that no material change in circumstances had been established within the meaning of s. 17(5) of the Divorce Act.

Even if a material change had been proven, transferring custody would not have been in the child’s best interests.

Following a family law motion concerning the matrimonial home, child support, and a parenting coordination agreement, the court addressed costs.

The respondent on the motion argued he was the successful party and sought full indemnity costs based on an offer to settle and alleged bad faith by the other party.

The court found that neither party’s offer complied with the strict requirements of Rule 18(14) of the Family Law Rules and therefore full indemnity costs were not mandatory.

However, the court determined the respondent was largely successful on the dominant issue and that the applicant had engaged in unreasonable conduct by listing and negotiating the sale of the matrimonial home without meaningful involvement from the other party.

Considering hardship but maintaining the principle that costs follow the event, the court awarded partial indemnity costs.

The plaintiffs, judgment creditors of the defendant Sandy DiFlorio, brought a motion for leave to issue a certificate of pending litigation against a property owned by Sandy's son.

The plaintiffs alleged that a $300,000 mortgage advance from Sandy to his son was a fraudulent conveyance designed to defeat creditors.

The court applied the criteria under section 103(6) of the Courts of Justice Act and found the plaintiffs had a reasonable claim to an interest in the land.

The motion for a certificate of pending litigation was granted.

A secondary motion to strike a statement of defence for unpaid costs was dismissed with leave to renew if costs remained unpaid.

The applicant brought a fourth motion seeking to have the respondent found in contempt for allegedly breaching a prior order restricting him from receiving income or benefits from his corporation while in default of spousal support obligations.

The respondent was significantly in arrears and had previously been found in contempt related to enforcement of support and security obligations.

The applicant argued that the respondent violated the order by receiving corporate-paid benefits including a vehicle, cell phone, and insurance coverage.

The court held that these items were legitimate business expenses necessary for the operation of the respondent’s real estate business and did not constitute prohibited benefits within the meaning of the earlier order.

The motion for contempt was dismissed and costs were reserved to the judge hearing the ongoing motion to change support.

In a criminal proceeding involving allegations of sexual offences against students, the accused sought to introduce evidence that he offered to take a polygraph test during a police interview.

The defence argued that the offer demonstrated consciousness of innocence and constituted admissible after-the-fact conduct.

The court reviewed the governing principles from appellate authority concerning prior consistent statements and the limited probative value of offers to take polygraph tests.

It held that such an offer, particularly where the accused had received legal advice and the results would be inadmissible, was essentially a self-serving protestation of innocence with no meaningful probative value.

The court concluded that the evidence would risk prejudicing the trial process and dismissed the application to admit it.

Following several complex family law motions concerning support issues, the court was required to determine the appropriate costs award.

The applicant sought $45,000 plus additional preparation costs, asserting complete success and unreasonable conduct by the respondent.

The respondent argued the applicant achieved only partial success and that significant reductions to child and spousal support constituted substantial success for him.

Applying the flexible approach to costs under r. 24 of the Family Law Rules and emphasizing proportionality and reasonable expectations, the court found the applicant was mostly successful but that the amount claimed was excessive.

The court awarded $15,000 inclusive of disbursements and HST, enforceable through the Family Responsibility Office as expenses related to support.

In a criminal prosecution involving multiple sexual offence allegations against a teacher, the defence sought to admit the accused’s out-of-court statements to police as evidence of his reaction to the accusations pursuant to the exception recognized in R. v. Edgar.

The court considered whether the statements qualified as spontaneous prior consistent statements capable of admission for credibility purposes.

Applying appellate authority, the court held that the spontaneity requirement was not met where the accused had significant time to reflect, consult others, receive legal advice, and prepare a written account before speaking to police.

Because the statements were not made upon first confrontation with the allegation and were preceded by hours of deliberation, they could not be admitted under the Edgar exception.