SCJ 2014

Child protection motion under the Child and Family Services Act seeking a temporary care and custody order.

The court considered evidence of chronic school absences, unsanitary living conditions including mold, concerns about supervision, sexualized behaviour by one child, and a positive hair follicle drug test for amphetamines/methamphetamines by the father.

The court found the father had not demonstrated the ability to protect the children from ongoing harm and instability.

It concluded that supervision would be insufficient to protect the children.

A temporary order placing the children in the care and custody of the child protection agency for six months was granted.

In CCAA proceedings arising from the liquidation of a multinational telecommunications company, bondholders claimed entitlement to post‑filing interest exceeding US$1.6 billion in addition to principal and pre‑filing interest of approximately US$4.092 billion.

The court considered whether the common law "interest stops rule" applies in CCAA proceedings, particularly in a liquidating CCAA context.

Applying insolvency principles of pari passu distribution and relying on Supreme Court guidance emphasizing the integrated nature of the CCAA and BIA regimes, the court held that post‑filing interest does not accrue against the insolvent estate.

The court rejected arguments that contractual entitlement to interest survives the filing or that distributions require a negotiated plan recognizing such interest.

Accordingly, crossover bondholders were limited to principal and pre‑petition interest claims.

The moving party regulator brought a motion to strike a lengthy statement of claim alleging various wrongs arising from disciplinary proceedings, settlement agreements, trustee services, and bankruptcy matters.

The court held that many allegations were barred by a prior settlement and release, constituted impermissible collateral attacks on regulatory decisions, were statute-barred, or disclosed no reasonable cause of action.

The court considered whether the pleadings could support the tort of misfeasance in public office but found that the material facts alleged did not establish deliberate unlawful conduct or knowledge of likely harm.

Even accepting the pleaded facts as true, the claim could not succeed in law and amendment would not cure the defects.

The action against the regulator was therefore dismissed and costs were awarded.

The applicant brought a motion to change a final order for spousal support following his retirement from the Ontario Provincial Police.

The court found that the applicant's retirement constituted a material change in circumstances that was not foreseen in the original order.

Applying the rule against double dipping, the court limited the applicant's income for support purposes to the non-equalized portion of his pension.

The court also imputed income to the respondent based on her ability to generate income from equalized assets.

Spousal support was reduced to $1,050 per month and a fixed termination date was set for October 31, 2021.

Residents of a Toronto apartment building sought certification of a class action following a fire allegedly caused by negligent maintenance of electrical systems and smart meters.

The proposed class sued the building owner, property managers, superintendent, and the electricity distributor.

The electricity distributor opposed certification, arguing the claim failed to disclose a viable negligence cause of action and that the certification criteria were not met.

The court held that the pleadings disclosed a viable negligence claim against the distributor and that the statutory and regulatory framework governing electricity distribution did not negate the claim at the certification stage.

The court certified the action as a class proceeding with a modified class definition excluding residents operating marijuana grow‑ops in the building.

During a jury trial for sexual assault, the accused brought a Corbett application seeking to exclude evidence of prior criminal convictions from cross-examination should the accused testify.

The defence sought to edit all adult convictions, while the Crown argued that the entire criminal record should remain available.

The court applied the established balancing test weighing probative value against prejudicial effect, considering factors such as similarity to the charged offence, relevance to credibility, and the number and timing of prior convictions.

Several convictions for assault, causing a disturbance, and harassing telephone calls were excluded due to similarity to the charged offence or lack of relevance to credibility.

Convictions for theft and multiple breaches of court orders were permitted as they bore directly on credibility and respect for the law.

A pharmacist who was an employee, shareholder, and pharmacy manager sued her employer following the sale of the business and termination of her employment.

The court considered whether a May 30, 2011 settlement agreement resolving employment issues was enforceable and whether the plaintiff was required to sign a broader non‑competition and non‑solicitation agreement demanded by the defendant.

The court held that the May 30, 2011 agreement was enforceable and that the defendant breached it by failing to make agreed payments.

The plaintiff’s refusal to sign the expanded restrictive covenants did not constitute repudiation because those terms were not contemplated in the agreement.

The court awarded common law reasonable notice damages and dismissed the defendant’s counterclaim.

The applicant sought to re-open ex parte proceedings under the Mutual Legal Assistance in Criminal Matters Act (MLACMA) that resulted in Gathering and Sending Orders.

The applicant alleged material non-disclosure by the Attorney General regarding the legality of search warrants, the need for disclosure in extradition proceedings, warrantless seizure of subscriber information, and the authority to detain seized items.

The court found no material non-disclosure that would have altered the outcome or justified granting the applicant notice and standing at the MLACMA hearings.

The application to re-open was dismissed.

The applicant provided funds to purchase a condominium but placed the title in the respondent's name to avoid capital gains taxes, based on an oral agreement that the respondent would hold it in trust.

The respondent later claimed he purchased the condominium with his own funds and refused to transfer title.

The court found the applicant's evidence credible and supported by banking records, while the respondent's evidence was contradictory and lacked documentary support.

The court held that a purchase money resulting trust arose, which was not rebutted.

The court also found that the doctrine of part performance applied, overcoming the Statute of Frauds requirement for a written contract.

The court declared the applicant the legal and beneficial owner of the condominium and ordered the respondent to transfer title and pay outstanding amounts.

Following a motion to set aside an ex parte injunction preventing the repatriation of an incapacitated individual to the United Kingdom for medical care, the successful party sought costs.

The court considered whether costs should be awarded on a full, substantial, or partial indemnity basis under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

The court found the moving party on the set‑aside motion was the successful party and that the circumstances justified substantial indemnity costs due to the expense incurred responding to the ex parte order and issues relating to disclosure.

However, the claimed amount was reduced to reflect proportionality and efficiency concerns, including duplication of work by counsel.

Substantial indemnity costs of $10,000 all‑inclusive were awarded.

The accused applied for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms, arguing that a 27.5‑month delay between charge and anticipated trial violated the right to be tried within a reasonable time.

The case involved multiple sexual offence allegations by three complainants and was largely a credibility-based trial expected to last less than a week.

The court found that most of the delay resulted from Crown disclosure failures, including late disclosure of a key video statement and defective recordings of two complainant interviews.

Applying the Morin framework and guidance from cases such as R. v. Godin, the court held that the delay significantly exceeded acceptable guidelines and caused prejudice to the accused’s ability to make full answer and defence.

The accused’s Charter rights were therefore breached and a stay of proceedings was ordered.

The plaintiff moved for summary judgment to enforce a second mortgage and obtain payment of funds paid into court following a power of sale.

The defendants alleged the mortgage had been fully paid through a combination of cheque and cash payments, relying primarily on internal payment spreadsheets and hearsay evidence from a bookkeeper.

The court held that the defendants failed to provide reliable proof of payment and that their evidence consisted largely of unsupported assertions.

Applying the summary judgment framework following Hryniak v. Mauldin, the court concluded there was no genuine issue requiring a trial.

Judgment was granted for the outstanding mortgage balance with interest and the plaintiff was declared entitled to surplus sale proceeds subject to set-offs.

The plaintiffs moved for an order requiring the defendant to post $40,000 as security for costs in relation to a counterclaim arising from mortgage enforcement and seizure of business assets.

The motion relied primarily on Rule 56.01(1)(c) of the Rules of Civil Procedure because previous costs orders against the defendant remained unpaid.

The court held that although the plaintiffs met the initial threshold for seeking security for costs, the defendant’s counterclaim substantially overlapped with his defence to the main action.

Requiring security would effectively condition the defendant’s ability to defend the claim.

The court also found that the defendant’s case was not frivolous and had a reasonable prospect of success.

The motion for security for costs was dismissed.

Following dismissal of an action for delay against several defendants, the court addressed the issue of costs.

The moving defendants sought partial indemnity costs exceeding $200,000.

The plaintiff did not dispute entitlement to costs but argued for nominal costs based on impecuniosity.

The court accepted that financial hardship may be considered but emphasized that impecuniosity cannot shield a litigant from the costs consequences of unreasonable conduct or prolonged delay.

Balancing the plaintiff’s financial circumstances against the lengthy litigation history, the court reduced the claimed costs and fixed costs at $50,000 for each group of defendants.

The accused was charged with indecent assault alleged to have occurred between 1969 and 1971 involving a child relative.

The complainant testified to a childhood incident of sexual touching while the accused denied the allegations and testified in his own defence.

Applying the credibility framework from R. v. W.(D.), the court assessed the complainant’s testimony alongside inconsistencies and the absence of corroborating evidence from other available witnesses.

The court found aspects of the complainant’s evidence raised concerns and concluded the accused’s testimony was credible and raised a reasonable doubt.

The Crown failed to prove the offence beyond a reasonable doubt.

The plaintiff appealed a Master's refusal ruling made during examinations for discovery in a wrongful dismissal action involving a senior trading employee.

The appeal challenged the Master's refusal to compel answers to certain discovery questions and requests for document production, including historical trading records, settlement negotiation materials, metadata, bonus pool information, and board approval materials for a deferred payment plan.

Applying the proportionality principles under the Rules of Civil Procedure, the court held that the requested production would be disproportionate or irrelevant and that the Master made no palpable or overriding error.

The court emphasized deference to Masters on discovery matters and reaffirmed that proportionality governs the scope of discovery.

The appeal was dismissed.

Parents sought a declaration that their homeowner’s insurer had a duty to defend and indemnify them in an action alleging they negligently failed to prevent or address bullying committed by their minor child.

The insurer denied coverage relying on policy exclusions for intentional acts and for failure to prevent abuse or harassment.

The court held that the negligence claims against the parents were distinct from the intentional tort allegations against the child and were not merely derivative.

Applying principles governing duty to defend and interpreting exclusion clauses narrowly, the court found the policy language did not clearly exclude negligent failure to prevent harassment.

The insurer was therefore obligated to defend and indemnify the parents.

The self-represented plaintiff brought a motion to transfer her Small Claims Court action against a home builder to the Superior Court of Justice, amend her claim to increase damages, and add a flooring contractor as a defendant.

The court dismissed the motion, finding that the plaintiff had deliberately chosen the Small Claims Court forum and that there were no new facts to justify a transfer.

Furthermore, the court held that the proposed new claims and the claim against the new defendant were statute-barred under the Limitations Act, 2002, as the plaintiff had knowledge of the defects more than two years before seeking to amend her claim.

The plaintiffs moved to reinstate an action that had been dismissed following a status notice process under the Rules of Civil Procedure.

The court considered the applicable reinstatement principles from Reid v. Dow Corning and the Faris test, including whether the delay was adequately explained and whether prejudice resulted.

The court found the plaintiffs failed to justify delay and failed to demonstrate absence of prejudice, particularly given the death of a key defendant whose evidence had not been preserved.

Settlement discussions and procedural missteps, including bringing the motion improperly and failing to advance the action, weighed against reinstatement.

The action against the remaining corporate defendant was dismissed with costs.

Following a two-day family law trial determining the quantum of spousal support, the court addressed costs.

The applicant spouse had obtained a result more favourable than her pre-trial settlement offer and was found to be entirely successful at trial.

Applying Rules 24(11) and 18(14) of the Family Law Rules, the court held that the presumption in favour of costs to the successful party applied and that the respondent’s intransigence necessitated the trial.

After reviewing the bill of costs and applying an overall reasonableness standard rather than a line‑by‑line assessment, the court fixed costs payable by the respondent.