SCJ 2014

Family members and the estate of a deceased driver brought a negligence action arising from a fatal collision with a fire truck driven by a municipal firefighter responding to an emergency.

The defendants moved under Rule 21 to dismiss the claim against the firefighter, relying on statutory immunity under s. 74 of the Fire Prevention and Protection Act, 1997.

The plaintiffs sought leave to amend their statement of claim and argued that the statutory immunity constituted a defence rather than negating the existence of a cause of action.

The court held that the statutory protection for firefighters acting in good faith operates as a defence to be proven by the defendant and does not render the negligence claim legally untenable at the pleading stage.

Because it was not plain and obvious that the claim could not succeed, the motion to dismiss was refused.

Following competing interim motions in a family law proceeding, the respondent sought substantial indemnity costs of approximately $11,368, arguing he had been substantially successful and that the applicant had taken unreasonable positions.

The court reviewed the cost principles under Rule 24 of the Family Law Rules, including the presumptive entitlement of a successful party to costs, the relevance of offers to settle, and the impact of unreasonable conduct.

While the respondent had greater success overall, the applicant succeeded on several important issues.

The court also considered that the respondent had breached an interim separation agreement by failing to return to Canada with the children, which contributed to the litigation.

In the circumstances, the court concluded that success was divided and declined to award costs to either party.

The offender was convicted by a jury of possessing a loaded prohibited firearm, possessing marijuana for the purpose of trafficking, and related offences.

He was subsequently found guilty of two counts of possessing a firearm contrary to prohibition orders.

The offender, a repeat firearms offender, was transporting the drugs and loaded firearm to a known drug dealer.

The court sentenced him to a total of nine years in prison, reduced to four years and ten months after granting enhanced credit for pre-sentence custody due to onerous remand conditions and the justice of the peace's failure to make a written notation under s. 515(9.1) of the Criminal Code.

The plaintiffs brought a motion under Rule 3.02 of the Rules of Civil Procedure seeking an extension of time to serve their statement of claim after the service deadline had expired.

The delay resulted from inadvertence and administrative errors by the plaintiffs’ counsel, and the motion itself was also brought after additional delay.

Applying the principles from Chiarelli v. Weins, the court focused on whether the defendant would suffer prejudice caused by the delay.

The defendant provided only general assertions of potential prejudice and no specific evidence demonstrating prejudice arising from the late service.

The court held that the absence of demonstrated prejudice favoured permitting the action to proceed on its merits and granted the extension, with no order as to costs.

The defendant, a former employee residing in Alberta, brought a motion to stay or dismiss the plaintiff's action in Ontario for repayment of training expenses.

The court found that Ontario had jurisdiction simpliciter because the employment contract was made in Ontario when the defendant faxed his acceptance to the plaintiff's head office.

However, the court stayed the action on the basis of forum non conveniens, concluding that Alberta was clearly the more appropriate forum given that the applicable law was Alberta law, the factual matters arose in Alberta, and the majority of witnesses resided in Alberta.

The applicant, an inmate awaiting sentencing for attempted murder and aggravated sexual assault related to HIV transmission, applied for habeas corpus to be removed from administrative segregation and placed in the general prison population with a cellmate.

The applicant argued a denial of procedural fairness and failure to conduct mandated five-day reviews.

The court found that while there was a denial of procedural fairness in how the reviews were documented, the applicant was aware of the reasons for his segregation.

Due to the high risk the applicant posed to other inmates, the court held that administrative segregation was lawful and necessary for safety.

The application was dismissed, but the institution was ordered to continue offering alternative accommodation proposals.

During a criminal jury trial involving allegations including kidnapping and extortion, the Crown sought to introduce oral statements attributed to one accused that differed from the version summarized in an earlier pre‑trial ruling on voluntariness.

The updated police testimony suggested that the accused named co‑accused as involved in the offence.

The trial judge held that the credibility of the differing versions of the statement was a matter for the jury and that the earlier ruling on voluntariness could not be revisited mid‑trial based on a changed evidentiary landscape.

Applying the discretionary exclusionary framework for prejudicial evidence, the court concluded that the probative value of the “new” version was not outweighed by prejudice to the co‑accused.

The statement would therefore be admitted without editing, with appropriate limiting instructions to the jury that it could only be used against the declarant accused.

The plaintiff brought a motion seeking leave to deliver a fresh as amended statement of claim alleging tortious interference with inheritance rights, to add a new defendant, compel a capacity assessment of the defendant mother, examine her lawyer regarding preparation of a will, lift solicitor‑client privilege, and exempt evidence from the deemed undertaking rule.

The proposed amendments were based on allegations that the defendant lacked testamentary capacity when she executed a new will reducing the plaintiff’s inheritance.

The court found the proposed claims lacked material particulars, were unsupported by evidence, and were likely statute‑barred under the applicable limitation period.

The court also held the amendments would unduly expand and delay a focused action involving property accounting disputes.

Leave to amend and related relief were refused, but a limited extension was granted for the action to be set down for trial.

The court-appointed receiver sought approval for its counsel's fees totaling $255,955 for a 69-day receivership of a family farm.

The debtor opposed the fees as excessive.

The court found the receivership was relatively straightforward, the estate was modest, and the fees charged by senior Toronto counsel were disproportionate and inefficient.

The court reduced the approved fees to $157,500, applying local London rates.

The applicant brought a motion seeking several forms of post‑judgment relief including equal division of the respondent’s pension, amendments to an access schedule, access arranged according to the father’s availability, and orders relating to life insurance securing support obligations.

The court held that many of the requested financial remedies had not been raised at trial and the trial judgment was final, rendering the court functus officio with no jurisdiction to alter the property division or support security terms.

The court also declined to amend the detailed access provisions previously ordered, finding the existing order already governed communication and scheduling issues and that the parties’ conflicting affidavit evidence was insufficient to justify modification.

The respondent was directed only to provide documentary confirmation that the applicant had been designated trustee of his life insurance policy as required by the prior judgment.

The applicant wife sought to set aside a cohabitation agreement executed shortly before the parties purchased a home and later married.

The agreement provided that each party would retain their initial contribution to the home and share the remaining equity 70/30 in favour of the respondent husband.

The applicant argued she did not understand the nature and consequences of the agreement and received inadequate independent legal advice.

The court found the independent legal advice was deficient but concluded the applicant was not under duress, the terms were not unconscionable, and the respondent did not take advantage of her.

The court declined to set aside the agreement.

The accused, a parish priest and high school chaplain, was charged with sexual assault and sexual touching involving a 16‑year‑old student.

The complainant alleged that during an overnight visit at a rectory the accused entered his room and sexually touched him and forced contact with the accused’s genitalia.

Applying the credibility framework from W(D), the court rejected the accused’s denial, accepted the complainant’s testimony, and relied on corroborative circumstantial evidence including parental evidence about the overnight visit.

The court held that the complainant was a young person dealing with a figure of authority and that delay in reporting and lack of verbal resistance could not ground an adverse inference.

The court found the accused abused a position of trust and authority and proved the offences beyond a reasonable doubt.

The applicant mother brought a motion for interim child support and section 7 expenses, seeking to impute income to the respondent father who claimed to be unemployed.

The court drew an adverse inference against the respondent due to evidence of hidden income and past fraudulent income declarations.

The court ordered the remaining proceeds from the sale of the matrimonial home held in trust to be transferred to the applicant for child support.

The respondent's request for supervised access was granted on consent, at his own expense.

Following a motion and cross‑motion in a family law proceeding concerning custody, access, and child support, the court addressed the issue of costs.

The moving party had been largely successful in opposing a motion to vary an earlier custody order, in resisting attempts to eliminate child support arrears and ongoing support, and in clarifying holiday access.

Applying Rule 24 of the Family Law Rules, the court considered success, complexity, proportionality, and the reasonable expectations of the self‑represented opposing party.

The court determined that costs should be awarded on a partial indemnity basis.

Costs were fixed at $3,500 plus HST and ordered payable as child support.

A commercial tenant sought a declaration that its lease had been validly renewed for an additional five‑year term and alternatively requested relief from forfeiture under s. 20 of the Commercial Tenancies Act.

The court held that the renewal clause, as amended, was unenforceable because it required rent to be determined by future agreement without providing a mechanism such as arbitration, making it an agreement to agree.

The tenant also failed to satisfy the conditions precedent for renewal, including timely written notice and compliance with lease obligations.

The court further found that s. 20 of the Commercial Tenancies Act did not apply where the landlord was not seeking re‑entry during the existing term, and equitable relief was unavailable because the tenant sought to obtain a new right rather than preserve an existing one.

Waiver and estoppel arguments were rejected, particularly given a non‑waiver clause and the involvement of third‑party leasing arrangements.

The plaintiffs brought a motion seeking a declaration that several Guatemalan defendants were properly served with a fresh statement of claim outside Ontario or, alternatively, an order validating service.

The proceeding alleged a $400 million conspiracy and fraud causing damage in Ontario.

The court considered Rules 17.02 and 17.05(2) of the Rules of Civil Procedure governing service outside Ontario in non‑contracting states under the Hague Service Convention.

The court held that where the foreign jurisdiction is not a contracting state, parties may serve originating process using Ontario service rules rather than the foreign state's service regime.

Personal service on corporate defendants was valid, and service on individual defendants was validated under rule 16.08 because the claim came to their attention despite attempts to evade service.

In an estate accounting dispute, a residual beneficiary sought disclosure of legal accounts issued by the estate solicitor to the estate trustee, alleging possible double billing to both the trustee personally and the estate.

The estate trustee resisted production on the basis of solicitor‑client privilege.

The court held that communications between an estate trustee and solicitor regarding administration and distribution of the estate are not privileged as against beneficiaries due to the “joint interest” principle.

Because the documents related to estate administration rather than personal protection of the trustee against claims, privilege did not apply.

The court ordered production of the legal fee documents and noted that, if discovery were necessary, the trustee could be examined by written questions due to medical limitations.

A condominium corporation brought a motion seeking an order requiring a unit owner to sell her condominium unit due to persistent and serious misconduct in the building.

Evidence established repeated violent incidents and intolerable behaviour affecting residents, many of whom were senior citizens.

The respondent failed to appear despite being served multiple times.

Applying the principles governing enforcement under the Condominium Act, the court found a breach of s. 117 and concluded that the respondent’s behaviour was incorrigible and unmanageable.

The court ordered the forced sale of the unit under s. 134 and awarded full indemnity costs to the condominium corporation.

Supplementary reasons clarifying aspects of an earlier medical negligence judgment arising from treatment provided at a hospital and by several physicians.

The court clarified that the action was dismissed against one physician and the hospital.

The court also clarified the appearance of additional defence counsel for two of the remaining physician defendants.

The reasons supplement the earlier judgment and resolve ambiguity in the disposition and counsel record.

The applicant sought certiorari to quash a preliminary inquiry committal for trial on charges including kidnapping and multiple firearm offences.

The case was entirely circumstantial and relied on cell phone tower evidence, a firearm magazine found at the scene, and the ownership of a vehicle linked to the incident.

The court held there was sufficient evidence capable of supporting a reasonable inference of the applicant’s involvement in the kidnapping for the purpose of committal.

However, the preliminary inquiry judge erred in concluding that the presence of a firearm magazine supported an inference that a firearm was used during the offence.

As there was no evidentiary foundation capable of satisfying a jury beyond a reasonable doubt that a firearm was used, the firearm-related committals were quashed while the kidnapping and related offences remained.