SCJ 2014

The appellant appealed a conviction for disobeying a court order under s. 127 of the Criminal Code arising from conduct outside an abortion clinic.

The alleged breach involved a civil injunction prohibiting certain activities within 500 feet of the clinic, including intimidation of patients and others.

The appeal court held that criminal liability for breach of an order requires proof that the accused violated a specific term of the order.

The evidence established only peaceful leafleting and silent protest, which did not constitute intimidation or other prohibited conduct within the meaning of the injunction.

The conviction was therefore unreasonable and unsupported by the evidence.

Following an unsuccessful motion for leave to appeal and the abandonment of an urgent access motion, the parties disputed costs.

The father sought costs for both the leave motion and the abandoned emergency access motion on a partial indemnity basis.

The court held that although the leave motion was not unreasonable, the father was required to prepare for and respond to both proceedings and effectively prevailed.

Considering the circumstances and cost consequences of unsuccessful motions in family litigation, the court fixed costs in a reduced lump sum amount inclusive of disbursements and HST.

The defendant vehicle owner brought a motion for summary judgment dismissing a personal injury action arising from a truck accident, arguing that the Workplace Safety and Insurance Act barred the claim because the negligent driver was a protected worker.

The Workplace Safety and Insurance Appeals Tribunal had previously barred claims against the driver and employer but permitted a limited action against the vehicle owner.

The court considered whether s. 29 of the Workplace Safety and Insurance Act precluded a statutory vicarious liability claim against the owner under s. 192 of the Highway Traffic Act.

The court held that the workers’ compensation regime eliminates joint liability with protected defendants but does not abolish statutory vicarious liability claims against unprotected vehicle owners.

Because the statute did not clearly remove such liability, the claim against the owner could proceed.

Following a trial in a civil action based on the tort of conversion, the court addressed the quantum of costs payable after awarding damages of $270,735 to the plaintiff.

The defendant conceded liability for costs on a partial indemnity scale but disputed the amount claimed.

The court considered the factors in Rule 57.01(1) of the Rules of Civil Procedure, including proportionality, counsel time spent, and the adequacy of disbursement evidence.

Concerns were raised about duplication of effort after the plaintiff changed counsel and insufficient breakdown of certain disbursements.

The court fixed costs at $75,000 in fees plus HST and $5,000 in disbursements inclusive.

Following a settlement conference in a family law proceeding where the parties reached final Minutes of Settlement, the court determined costs relating to the conference.

The applicant sought full indemnity costs due to the respondent’s conduct, alleging rudeness, lack of preparation, and failure to participate constructively in settlement discussions.

The court reviewed the principles governing costs under the Courts of Justice Act and Family Law Rules, including the presumption that a successful party is entitled to costs and the factors relevant to fixing the amount.

While the respondent’s behaviour was criticized, the court noted that the matter ultimately settled and declined to award full indemnity costs.

The respondent was ordered to pay $1,500 in costs for the settlement conference.

The plaintiffs moved to amend their statement of claim to include allegations regarding the defendants' instructions to their counsel in a related proceeding.

The court dismissed the motion, finding the proposed amendments irrelevant and immaterial to the issues pleaded.

The court also addressed the defendants' motion to compel answers to undertakings, finding the plaintiffs liable for the costs reasonably attributable to securing the undertakings.

In a family law dispute involving a jointly operated cleaning business following marital separation, the applicant sought an order vesting ownership of several business vehicles in her name to permit insurance and continued business operations.

The respondent opposed and brought a cross-motion for contempt based on alleged non-payment of draws and salary under a prior consent order, and sought control of the business.

The court held that contempt was unavailable for enforcement of monetary obligations and found the respondent’s actions had interfered with the business, including cancelling vehicle insurance.

To protect the ongoing viability of the enterprise pending trial, the court vested the vehicles in the applicant subject to conditions on maintenance and disposition.

The respondent’s contempt motion and related requests were dismissed.

The appellant appealed a summary conviction for assault under s. 266 of the Criminal Code arising from a domestic dispute in which he grabbed a tape recorder from the complainant’s hand.

The trial judge had concluded that the act of grabbing the object constituted a non-consensual touching and therefore an assault.

On appeal, the court considered whether taking an object from another person’s hand necessarily constitutes the application of force required for assault and also addressed allegations of judicial bias arising from comments made by the trial judge during the proceedings.

The court held that although the trial judge’s comments were unnecessary, they did not meet the high threshold for a finding of reasonable apprehension of bias.

However, the court found that the trial judge erred in law by concluding that grabbing the recorder constituted an assault in the absence of evidence of force applied to the complainant.

The conviction was quashed and a new trial ordered.

The plaintiffs brought a motion to amend the statement of claim to add the estate of a deceased youth as a defendant, add the deceased rescuer through a litigation administrator as a plaintiff, increase damages, and have related actions tried together.

The court considered Rule 5.04(2) of the Rules of Civil Procedure and the doctrine of special circumstances under the Trustee Act permitting addition of parties after expiry of the limitation period.

Applying authorities including Joseph v Paramount Canada’s Wonderland and Bikur Cholim Jewish Volunteer Services v Penna Estate, the court found special circumstances and no non‑compensable prejudice to the proposed defendant estate.

The court also found the presumption of prejudice rebutted given the existence of related proceedings and prior involvement of the estate in litigation arising from the same incident.

Leave to amend the claim and add the parties was granted and the related actions were ordered to be tried together.

Following dismissal of a motion brought in a certified class proceeding seeking disclosure about how insurance proceeds were expended, the successful defendants sought costs.

The representative plaintiffs argued success on the motion was divided because certain insurance information had been disclosed before the motion.

The court rejected this characterization and held the defendants were the successful party.

However, exercising discretion under the costs principles governing interlocutory motions, the court found the amount claimed exceeded what the unsuccessful party could reasonably expect to pay.

Partial indemnity costs were reduced and fixed at $4,500 inclusive.

Costs decision following a motion by the Attorney General seeking a stay of an order pending a motion for leave to appeal.

The underlying order directed that more than $4 million seized in an in rem forfeiture proceeding be released to the respondents.

The court found that although the Attorney General brought the motion on very short notice, the respondents’ opposition was unreasonable given the risk that releasing the funds could render the appeal moot and cause irreparable harm by allowing the money to leave the jurisdiction.

However, the respondents should not bear costs that would have been incurred even if the motion had been brought on consent.

The court fixed partial indemnity costs payable by two respondents jointly and severally.

The moving party, Echelon, sought production of a transcript of an examination under oath of the defendant vehicle owner, conducted by his insurer, Peel Mutual.

Peel resisted production, claiming litigation privilege.

The Master found that Peel failed to meet the evidentiary onus to establish that the dominant purpose of the examination was reasonably anticipated litigation, as the evidence indicated the primary purpose was adjusting a property damage claim.

The motion for production was granted.

The defendant in a solicitor's negligence action brought a motion for the production of documents over which the plaintiff claimed settlement and solicitor-client privilege.

The court reviewed the documents and found that privilege had been waived or exceptions applied, as the documents related to the implementation of a settlement and the plaintiff's access to independent legal advice, which were central to the defence.

The court ordered the plaintiff to produce the documents, allowing only one redaction for specific legal advice.

The accused was convicted by a jury of multiple firearm possession offences and pleaded guilty to simple possession of cocaine.

He was also convicted of possessing a firearm while prohibited following the jury’s findings.

The court considered the sentencing principles in s. 718 of the Criminal Code and emphasized denunciation and deterrence in relation to illegal handgun possession while also weighing the offender’s background, remorse, and prospects for rehabilitation.

The court rejected the Crown’s request for an eight‑year sentence and determined that the appropriate range for a second firearm possession offence without additional aggravating factors was lower than that proposed.

A global sentence of five years and nine months’ imprisonment was imposed, including a consecutive term for breaching a firearms prohibition order, with credit for pre‑sentence custody.

In a family law proceeding, the respondent brought a motion under Rule 16 of the Family Law Rules seeking summary judgment to enforce an alleged oral settlement reached during a settlement meeting.

The applicant argued that no binding settlement had been reached because essential terms remained unresolved and the parties intended any agreement to be finalized only through a comprehensive written separation agreement.

The court reviewed the governing principles for determining whether a binding settlement exists, including the requirement of consensus on all essential terms and objective evidence of a meeting of the minds.

Examining the parties’ post‑meeting correspondence and the proposed terms, the court found ongoing negotiations, material variations between proposals, and clear indications that a final written separation agreement was required.

As a result, the court concluded that no enforceable settlement had been reached.

The moving party brought a motion to change a 1999 divorce order requiring monthly child support of $762, seeking termination of support effective December 1999 and rescission of accumulated arrears.

The court considered whether a material change in circumstances existed under s. 17 of the Divorce Act and the Child Support Guidelines.

Evidence established that the payor had never earned the income assumed in the original order and had operated a consistently unprofitable business while accumulating significant debt and relying on loans for subsistence.

The court imputed modest income beginning in 2006 and recalculated historical support obligations.

Because the payor had already paid more than what the recalculated guideline amounts required, all arrears were rescinded and prospective support was set based on an imputed income.

A non-party lawyer appealed a costs order requiring him to personally pay $3,000 to opposing counsel following an order made by a Master.

After leave to appeal was granted, the parties engaged in settlement negotiations but disagreed on the wording of the resulting order.

The moving party sought confirmation that the settlement included both allowing the appeal and setting aside the impugned paragraph of the Master’s costs order.

The court held that setting aside the impugned portion necessarily meant the appeal was allowed and found the parties were ad idem in their settlement.

The motion to confirm the settlement was granted and the settlement enforced.

The plaintiffs moved for summary judgment following the defendant’s failure to close an unconditional agreement of purchase and sale for a farm property.

The defendant admitted breach but argued the plaintiffs failed to mitigate their damages by relisting the property in the fall rather than waiting until spring and by failing to move back into the property to reduce carrying costs.

The court applied the principles from Hryniak v. Mauldin regarding summary judgment and held there was no genuine issue requiring a trial.

The plaintiffs acted reasonably in relisting the property promptly and accepting the first reasonable offer.

However, the court reduced certain ancillary damages due to partial failure to mitigate, ultimately awarding damages reflecting the resale price difference and several carrying costs.

The defendant subcontractor brought a motion under s. 47 of the Construction Lien Act to discharge the plaintiff's claim for lien, arguing it was filed out of time.

The plaintiff had stopped providing hoisting services to the defendant due to unpaid arrears but continued providing services on the project after the general contractor agreed to pay for them directly.

The court found a genuine issue for trial regarding whether the subsequent services were provided under a continuing contract with the defendant or a new contract with the general contractor.

The motion was dismissed.

The defendant insurance broker brought a motion seeking production of documents relating to a prior broker and leave to amend its statement of defence in an action alleging negligent placement of umbrella insurance coverage.

The underlying dispute concerned denial of excess insurance coverage following a serious motor vehicle accident involving a leased transport truck, exposing the plaintiff to potential liability beyond primary insurance limits.

The court permitted production of certain documents in the plaintiff’s possession but declined to require the plaintiff to obtain the full file from the prior broker at this stage.

On the pleading motion, the court refused amendments that would effectively withdraw admissions or introduce prejudicial and contradictory pleadings, but allowed amendments asserting contributory negligence based on the plaintiff’s alleged failure to review policy documents.

Costs were awarded to the plaintiff due to partial success on the motion.