SCJ 2014

The defendant insurer brought a motion for summary judgment in an action seeking accident benefits and alleging bad faith in the handling of the claim.

The court found the action was commenced outside the two-year limitation period under s. 281.1 of the Insurance Act, which began running from the insurer’s clear refusal of benefits.

The plaintiff had also failed to submit a disability certificate certifying the statutory criterion required for non-earner benefits.

The court further held the allegations of bad faith were unsupported by evidence and subject to the same limitation period.

Summary judgment was granted dismissing the action.

The applicants sought an initial order under the Companies’ Creditors Arrangement Act to commence restructuring proceedings and implement a proposed recapitalization supported by secured noteholders holding the majority of the applicants’ debt.

The court found the applicants qualified as debtor companies under the CCAA and were insolvent due to defaulted secured notes exceeding $110 million and an inability to meet obligations as they became due.

The court approved the initial order, including a stay of proceedings, administration and directors’ charges, authorization to pay certain pre‑filing obligations, and appointment of a monitor with authority to seek Chapter 15 recognition in the United States.

The court also granted a claims procedure order and a meetings order permitting creditors to vote on a proposed plan of compromise and arrangement, including classification of creditor groups and authorization to proceed with a consolidated plan.

Property owners sought declarations that a proposed paintball facility on land zoned “rural” was a permitted use under a municipal zoning by-law.

The municipality maintained the proposed use constituted a commercial recreational activity requiring rezoning.

Applying modern principles of statutory interpretation to municipal by-laws and considering the zoning by-law within the broader framework of the municipality’s Official Plan, the court held that a “Private Park” under the by-law referred to passive recreational open space intended for limited private use rather than commercial recreation offered to the public.

The court concluded the proposed paintball facility more closely resembled a “Place of Recreation” where recreation is provided for a fee and therefore constituted a new commercial use.

As new commercial uses in the rural designation required a zoning amendment, the applicants’ request for declaratory relief was refused.

The defendant Ministry of Transportation brought a motion seeking orders requiring the plaintiff to complete a further future cost of care assessment at her home and to attend a defence psychological examination under Rule 33 of the Rules of Civil Procedure and s. 105 of the Courts of Justice Act.

The action arose from a motor vehicle accident and was scheduled for trial in less than three months.

The court held that the moving party failed to demonstrate that additional occupational therapy assessment time or a further psychological examination was necessary to ensure trial fairness.

The existing medical evidence and prior defence examinations were sufficient to permit the defence to respond to the plaintiff’s claims.

The motion was dismissed, although leave was granted for the defence psychiatrist to provide a limited supplemental report responding to a recent expert report.

Following a trial concerning a passing of accounts relating to the estate of a deceased person, the successful objector sought over $87,000 in costs on a full indemnity basis.

The court emphasized that costs are discretionary and guided by proportionality under Rule 57.01 of the Rules of Civil Procedure.

Although the objector had succeeded in requiring repayment of $10,000 and a reduction in compensation claimed by the estate trustee, the court found the requested costs grossly disproportionate to the amounts at issue and the manner in which the litigation was conducted.

The proceedings involved limited witnesses, no discoveries, and inefficiencies arising from personal family disputes.

The court therefore fixed modest costs to reflect proportionality and the limited financial stakes of the litigation.

The accused brought an application under s. 278.3 of the Criminal Code seeking production of counselling records from a woman’s abuse counsellor relating to the complainant’s allegations of sexual assault.

The defence argued the records were relevant to credibility and reliability and necessary to challenge alleged fabrication.

The court applied the two‑stage framework governing third‑party records under ss. 278.1–278.7 and considered whether the accused met the threshold of likely relevance.

The court found that the defence failed to demonstrate that the counselling records were likely to contain new or contradictory information beyond material already disclosed, including medical notes and police statements.

Given the high privacy interests attached to therapeutic counselling records and the absence of a demonstrated impairment to the accused’s ability to make full answer and defence, the application was dismissed at the first stage.

The plaintiff, who was wrongfully convicted of murder and later acquitted, brought an action against police officers and the Attorney General for malicious prosecution and negligence.

The plaintiff moved to amend his statement of claim to add allegations of negligence against Crown attorneys for failing to disclose evidence.

The court dismissed the motion with respect to the negligence claims, holding that Crown attorneys are immune from civil suits based in negligence, and that the only tenable cause of action against them is for malicious prosecution.

The plaintiffs obtained an ex parte Mareva injunction and certificates of pending litigation (CPLs) against assets of several defendants after discovering alleged fraud by their accountant.

A co-defendant spouse moved to discharge the CPL registered against her property and to lift the freezing of her personal bank accounts, asserting sole ownership and lack of knowledge of the alleged fraud.

The court found the plaintiffs failed to provide full and frank disclosure and did not establish a strong prima facie case linking the spouse’s property or accounts to the alleged fraud or demonstrating a proprietary claim.

Given the absence of evidence, the prolonged delay following the ex parte order, and the prejudice to the affected party, the court lifted the injunction and discharged the CPL against the spouse’s property.

Following a motion decision dismissing a request to amend a statement of defence to add a cross‑claim against Ontario and Canada as statute‑barred, the court addressed Ontario’s claim for costs.

The unsuccessful party argued that Ontario acted opportunistically by waiting until after the limitation period expired to raise the limitation defence and submitted that each party should bear its own costs or that Ontario’s rates should be reduced.

The court rejected the allegation of opportunism and confirmed that costs for the Crown are assessed based on fairness and reasonableness rather than actual internal billing rates.

After considering the hours claimed, the applicable partial indemnity rate guidance, and comparative information regarding Canada’s costs settlement on the same motion, the court exercised its discretion to reduce the requested amount.

Costs were awarded to Ontario in the amount of $6,000 inclusive.

The applicant sought various parenting, support, and enforcement orders following the respondent’s failure to comply with disclosure obligations and court orders, resulting in his pleadings being struck and the matter proceeding as an uncontested trial.

The court addressed issues including custody, access, retroactive child support, extraordinary expenses, imputation of income, life insurance security, relocation, and restraining relief.

Applying the best interests of the child under s. 24 of the Children’s Law Reform Act, the court declined to terminate access entirely but ordered supervised access at the discretion of the custodial parent and guided by professional recommendations.

The court ordered retroactive child support, retroactive special and extraordinary expenses, ongoing child support based on imputed income due to the respondent’s failure to disclose income information, and repayment of joint debt.

Requests for a restraining order and vesting orders were denied.

The accused were tried for multiple offences arising from the armed robbery of a restaurant.

The Crown's case relied entirely on circumstantial evidence, including the accused's presence at an apartment where stolen property was found shortly after the robbery.

The court found that the evidence against one accused was not sufficient to prove his involvement beyond a reasonable doubt, as his presence could be explained by other rational inferences.

However, the court found the other accused guilty, concluding that his prior employment at the restaurant, possession of stolen currency, and other circumstantial factors proved beyond a reasonable doubt that he was a party to the robbery.

The accused was charged with sexual assault, sexual interference, and invitation to sexual touching involving a complainant who was under sixteen years old at the time of the alleged incidents.

The case turned primarily on credibility, with only the complainant and the accused testifying.

The court rejected the accused’s testimony as unreliable but nonetheless found that the Crown had not proven the allegations beyond a reasonable doubt.

Concerns included the absence of corroborative evidence, inconsistencies in the complainant’s statements on material points, and aspects of the account that appeared implausible.

Applying the criminal standard of proof and credibility principles including those discussed in R. v. W.(R.), the court concluded that a reasonable doubt remained.

A father sought to vary a separation agreement by obtaining equal shared parenting and termination of child support.

The court found the existing joint custody arrangement, with the children residing primarily with the mother during the school week and spending alternate weekends and mid‑week time with the father, was functioning well and in the children’s best interests.

The father provided no expert or other persuasive evidence demonstrating that a shift to equal time would benefit the children, and his proposed schedules were found to prioritize his shiftwork rather than the children’s stability.

The court also determined the agreed child support amount significantly undercut the Child Support Guidelines and that the father failed to establish any special provision justifying the deviation.

Guideline child support was therefore ordered retroactive to the date of the responding claim.

The plaintiff sued her accident benefits insurer for breach of contract and bad faith after the insurer refused to pay non-earner benefits following a motor vehicle accident.

The insurer moved for summary judgment on the basis that the claim was statute‑barred under the two‑year limitation period in the Insurance Act and the Statutory Accident Benefits Schedule.

The court held that the limitation period began when the insurer clearly refused the non‑earner benefit in 2004, or alternatively when income replacement benefits were discontinued in 2006.

A subsequent application for non‑earner benefits years later could not restart the limitation period.

The court also found no evidentiary basis for claims of bad faith or mental distress in the administration of the claim.

Police seized $100,000 in cash from the trunk of a rental vehicle during a traffic stop and detained it as offence-related property under s. 490(1) of the Criminal Code.

The accused applied under s. 462.34(4) of the Criminal Code for release of a portion of the seized funds to retain counsel for upcoming criminal proceedings.

The Crown argued the court lacked jurisdiction to release offence-related property for legal expenses.

The court rejected that position, relying on jurisprudence recognizing access to seized funds for reasonable legal fees where necessary to preserve the right to counsel and a fair trial.

The court ordered $25,000 released to defence counsel in trust for legal fees, subject to accounting safeguards.

The plaintiff brought a civil action for slander, malicious prosecution, and intentional infliction of mental suffering arising from his arrest at a cheque‑cashing store after attempting to cash a cheque that store staff believed to be fraudulent.

The court found that although defamatory words were communicated to police and employees, the statements were protected by qualified privilege and there was no proof of malice.

The malicious prosecution claim failed because the defendant did not initiate the prosecution and reasonable and probable grounds existed for the police investigation and charges.

The claim for intentional infliction of mental suffering also failed because the defendant’s conduct was not flagrant or outrageous and causation of the plaintiff’s psychiatric condition was not established.

In addition, the claim was statute‑barred under the Limitations Act, 2002 because the plaintiff did not prove incapacity to suspend the limitation period.

In the context of the global insolvency of Nortel Networks, the UK Pension Claimants (UKPC) asserted multiple claims against the Canadian debtors (NNC and NNL).

The UKPC claimed for a contingent Financial Support Direction (FSD) under UK pension law, amounts under a Funding Guarantee and a Swift Guarantee, and remedies for oppression and unjust enrichment.

The court dismissed the FSD claim as too remote and speculative to constitute a provable claim in the CCAA proceedings.

The court also dismissed the claims under the Swift Guarantee, oppression, and unjust enrichment.

However, the court allowed the UKPC's claim under the Funding Guarantee, finding NNL liable for £339.75 million.

Following convictions for manslaughter by failing to provide the necessaries of life to a child, a publication ban had been imposed under s. 486.5 of the Criminal Code protecting the identities of surviving siblings and information that could identify them.

A media organization sought to narrow or vary the ban, while counsel for the convicted parents requested the appointment of amicus curiae to advance the interests of the affected children.

The Crown ultimately supported narrowing the ban but took no position on the appointment of amicus.

The court considered competing interests between freedom of expression and the protection of vulnerable children.

The court appointed a child advocacy legal clinic as amicus curiae to assist in determining the proper scope of the publication ban before sentencing.

The defendant, a pharmacist, pleaded guilty to making a false or misleading statement under the Controlled Drugs and Substances Act after dispensing morphine to an undercover officer without a prescription.

The Crown sought a suspended sentence, while the defence sought a discharge.

The court found that the defendant's actions were motivated by a misguided desire to help someone he perceived to be in withdrawal, rather than for financial gain.

Considering the defendant's good character, lack of criminal record, and the potential professional repercussions of a conviction, the court granted an absolute discharge.

Following the dismissal of an application seeking to set aside a by-law passed at a general meeting of a temple organization, the court addressed costs.

The unsuccessful applicants argued that no costs should be awarded because they were public interest litigants and alleged governance concerns within the organization.

The court rejected the characterization of the applicants as public interest litigants, finding the litigation was primarily driven by efforts to regain control of the organization rather than a broader public interest.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court determined the respondents were entitled to substantial indemnity costs.

Costs were fixed at $30,000 payable jointly and severally by the applicants.