SCJ 2014

A charitable organization applied for a declaration that premises it occupied under leases were exempt from municipal property taxation under s. 10 of its incorporating statute.

The applicant argued that the statutory phrase “buildings, lands, equipment and undertaking of” the association extended to leased premises used for its charitable activities.

The respondents contended that the exemption applied only to property owned by the organization.

The court applied principles of statutory interpretation and held that the phrase “lands of the association” refers to land owned by the association, not leasehold interests.

Because the properties at issue were leased rather than owned, the exemption did not apply.

The moving party sought default judgment against the defendants for fraudulently obtaining pre‑retirement death benefits and health and welfare benefits by falsely claiming that a union member had died.

The defendants had previously pleaded guilty in criminal proceedings involving the same fraudulent scheme and were noted in default in the civil action.

The court held that the admitted facts established fraud, deceit, fraudulent misrepresentation, conspiracy, conversion, and unjust enrichment.

Judgment was granted for the amounts paid out under the benefit plans, together with punitive damages and declarations preventing the defendants from receiving future benefits until the debt was repaid or permitting set‑off against any future entitlements.

Following a family law trial primarily concerning access to the parties’ child, the court considered submissions on costs.

The applicant sought a modest costs award to recover some legal preparation expenses, while the respondent claimed substantial costs as the successful party.

The court applied Rules 24(1), 24(6), and 24(11) of the Family Law Rules and concluded that overall success in the litigation was mixed.

After reviewing both parties’ offers to settle under Rule 18(14), the court determined that neither party achieved an order as favourable as their respective offers.

In the circumstances, the court declined to award costs.

The moving party (former husband) brought a motion to vary a 2003 spousal support order due to a reduction in his income after changing employment.

The responding party (former wife) opposed and sought retroactive post-secondary expenses for their adult child.

The court found the moving party's income reduction from an average of $420,303 to $270,153 constituted a material change in circumstances.

Spousal support was varied from $7,000 to $5,850 per month, retroactive to January 2010, resulting in $46,750 in arrears owed to the responding party.

The court also ordered the moving party to pay $43,598, representing his 65% proportionate share of the child's reasonable retroactive post-secondary expenses.

Following a scheduled review of custody and access arrangements in a high‑conflict family law matter, the court considered updated evidence including affidavits, a clinical investigator’s report from the Office of the Children’s Lawyer, and counselling records.

The court addressed preliminary issues including whether unpaid costs should bar a party from further participation and whether privileged interview notes obtained inadvertently should be returned and destroyed.

Assessing the best interests of the children, the court found significant evidence of parental alienation by the respondent affecting the youngest child’s perceptions of the applicant.

The court determined that maintaining the existing shared arrangement risked further damage to the child’s relationship with the applicant.

Custody was therefore confirmed with the applicant, with the youngest child ordered to primarily reside with the applicant and the respondent receiving alternate‑weekend access.

The accused was charged with importing cocaine and possession for the purpose of trafficking after a brick of cocaine wrapped in his T-shirt was found in the fuse box of a commercial truck he was a passenger in.

The truck was driven by a co-accused who testified against him.

Applying the W. (D.) test and a Vetrovec caution, the court rejected the accused's testimony as incredible and found him guilty on both counts based on circumstantial evidence, video surveillance, and the co-accused's testimony.

The applicant sought review of a detention order under s. 520 of the Criminal Code after bail was denied on secondary grounds.

He argued the justice of the peace misapplied the Gladue principles and presented a new release plan involving multiple sureties and structured cultural and community activities.

The reviewing judge found the justice of the peace had sufficient evidence regarding the applicant’s Indigenous background and properly considered Gladue factors when assessing detention.

The court further concluded the proposed bail plan lacked meaningful community support and that the proposed sureties minimized or denied the applicant’s extensive violent criminal history.

The application was therefore dismissed and the detention order maintained.

The court-appointed receiver brought a motion to determine entitlement to the proceeds of the sale of a leased truck and past lease payments.

The respondent lessor had trespassed and seized the truck from the receiver without court approval.

The court found that while the lessor remained the owner of the truck and was entitled to past lease payments, its failure to sign a new security agreement or file a financing change statement after the original lessee's bankruptcy rendered its security interest unperfected.

The unperfected interest was subordinate to the receiver and secured creditors, so the lessor was ordered to pay the sale proceeds to the receiver, along with full indemnity costs due to its reprehensible self-help conduct.

Sentencing decision following conviction for transferring a firearm without authorization contrary to s. 99(1) of the Criminal Code.

The court determined that the applicable minimum sentence was three years under s. 99(2), rejecting the defence argument that the one‑year minimum under s. 99(3) applied.

Although the offence involved no violence and the firearm was quickly recovered by police, the accused had a lengthy criminal record.

The court declined to apply Gladue principles due to insufficient evidence establishing Indigenous identity or a connection between background factors and the offence.

The accused received the mandatory minimum sentence with enhanced credit for difficult pre‑sentence custody conditions.

In bankruptcy proceedings involving the debtor, the court addressed two issues: post‑judgment interest on a foreign judgment and the proposed terms of a Mareva injunction in aid of execution.

The parties agreed that simple interest on the foreign judgment would run from April 20, 1998 to September 28, 1998 at 10% per annum, which the court ordered.

The moving party sought a broad Mareva injunction restricting the debtor’s dealings with assets and requiring extensive disclosure.

Given emerging concerns about the adequacy of disclosure by the moving party in earlier proceedings and the fact that the trial judge would be hearing additional evidence on sanctions, the court declined to rule on the Mareva relief and left the issue to the trial judge.

The moving defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the statement of claim for disclosing no reasonable cause of action.

The self-represented plaintiff alleged defamation, conspiracy, harassment, and mental distress arising from a commercial lease dispute and related litigation.

The court held that the pleadings failed to properly plead the elements of any recognized cause of action and consisted largely of vague and conclusory allegations.

The claim against the moving defendants was struck as it was plain and obvious that it disclosed no reasonable cause of action.

However, the plaintiff was granted leave to amend the statement of claim within 45 days.

Following a motion to change child support, the court determined costs under Family Rule 24 and s.131 of the Courts of Justice Act.

The applicant father was substantially successful in obtaining an order reducing child support to nil and fixing arrears payable by instalments.

Although the respondent mother argued she lacked the ability to pay costs, the court found that she ignored the litigation process and failed to engage with settlement opportunities.

The court held that the successful party is presumptively entitled to costs and that the amount sought represented only a small portion of the applicant’s actual legal expenses.

Costs of $5,000 were awarded to the applicant, with child support arrears permitted to be set off against that amount.

Mortgagees obtained summary judgment in a mortgage action and subsequently obtained an order permitting the issuance of writs of possession.

The corporate mortgagor defendants brought a motion to set aside or vary the order granting leave to issue the writs, alleging the order was obtained without notice and based on misleading facts.

The court held that the motion without notice was permitted under the Rules of Civil Procedure and that there was no evidentiary basis supporting the allegations of misrepresentation.

The defendants admitted the mortgage debt but provided no evidence demonstrating the ability to repay the amounts owing.

The court found no basis to interfere with the master's order and dismissed the motion.

A contractor sued a municipal owner after being terminated from a major civic construction project shortly before substantial completion.

The owner alleged the contractor was in default for failing to meet milestones and failing to comply with scheduling and change directives.

The court held that even if breaches occurred, they did not amount to a fundamental breach justifying termination, particularly where the project was approximately 95–98% complete and delay damages could be compensated in money.

The court further found the owner had compromised the consultant’s contractual role of impartiality by directing the consultant’s notice of default and failed to act in good faith under the dispute resolution provisions.

The termination was therefore wrongful and invalid.

The applicant sought a declaration that the respondents were not entitled to treat the retirement of his transition support loan as a taxable benefit and issue a T4.

The applicant argued that the loan documents, specifically a Q&A document, implied the loan would be retired without financial consequence to him.

The court found no ambiguity in the loan documents and held that they did not restrict the manner in which the respondents could retire the loan.

The application was dismissed, as the court could not rewrite the contract to impose an obligation to retire the loan tax-free.

A municipal administrator brought an action for wrongful dismissal alleging he had been hired under a three‑year fixed‑term contract as CAO/Clerk of a municipality.

The municipality asserted that the appointment was temporary and that services were provided through the plaintiff’s consulting company on an interim basis while a permanent replacement was sought.

The court rejected the authenticity and reliability of an alleged email exchange said to form a fixed‑term employment contract and found that the municipal by‑laws and surrounding evidence demonstrated a temporary acting appointment.

The court further concluded the services were provided through the plaintiff’s corporation as an independent contractor arrangement.

As the temporary engagement ended when the municipality appointed a permanent replacement, no notice or damages were owed.

Following an unsuccessful motion by certain defendants seeking removal of the plaintiff’s counsel from the record, the plaintiff sought costs.

The plaintiff requested substantial indemnity costs alleging the motion contained meritless allegations and misstatements of fact amounting to reprehensible conduct.

The court found the motion lacked merit and was ill‑conceived but declined to characterize the conduct as reprehensible.

The court held that reasonably generous partial indemnity costs were appropriate in the circumstances and fixed costs accordingly.

The defendant First Nation brought a motion to strike portions of the plaintiff’s statement of claim under Rules 21 and 25 of the Rules of Civil Procedure.

The plaintiff alleged defamation arising from a Band Council Resolution declaring her a trespasser on First Nation territory after her employment termination, claiming reputational and financial harm.

The defendant argued the claim was barred by res judicata and abuse of process because the plaintiff had previously obtained damages for wrongful dismissal in Small Claims Court.

The court held the earlier proceeding concerned a contractual wrongful dismissal claim, while the present action alleged a tort of defamation that arose later and constituted a continuing cause of action.

The motion to strike under Rule 21 was dismissed, though certain pleadings and evidentiary attachments were struck under Rule 25 with leave to amend.

The appellant appealed a conviction for assault simplicitor under s. 266 of the Criminal Code and the resulting sentence of four months’ imprisonment and probation.

The appellant argued that the trial judge erred in assessing credibility, improperly shifted the burden of proof, and failed to properly apply the W.(D.) framework in evaluating defence evidence.

The appeal court held that the trial judge properly assessed credibility, did not misapprehend the evidence, and did not shift the burden of proof, and therefore dismissed the conviction appeal.

However, the sentencing judge committed an error in principle by improperly discounting rehabilitation and effectively treating the accused’s decision to proceed to trial as indicative of a lack of remorse.

Leave to appeal sentence was granted and the custodial term was reduced to 75 days to be served intermittently.

The defendants brought a motion for summary judgment seeking dismissal of a claim by a warranty administrator to recover amounts paid from a statutory guarantee fund for condominium common element defects.

The motion raised issues of statutory interpretation under the Ontario New Home Warranties Plan Act concerning whether a condominium corporation is entitled to enforce warranty rights relating to common elements.

The court held that the statute deems a condominium corporation to be the owner of common elements for warranty purposes and therefore entitled to enforce such warranties.

Alternatively, the warranty administrator was entitled to pursue recovery through statutory subrogation after paying claims from the guarantee fund.

The defendants’ motion was dismissed and the indemnitor was declared personally liable for any deficiency once the amount is quantified.