SCJ 2014

A long‑serving employee brought a motion for summary judgment in a wrongful dismissal action seeking 24 months’ notice or, alternatively, statutory severance under the Employment Standards Act, 2000.

The court held that the employee’s entitlement to statutory severance pay could be determined summarily because the undisputed evidence established over 40 years of continuous employment and a payroll exceeding the statutory threshold.

Partial summary judgment was therefore granted for the maximum 26 weeks’ severance pay.

However, the broader claim for wrongful dismissal damages could not be determined because there was no evidence regarding post‑termination income or mitigation.

The remainder of the claim was directed to proceed to trial.

Following a motion concerning the validity of an infant settlement within a global personal injury settlement, the court addressed costs.

The plaintiffs had successfully obtained an order setting aside the global settlement after it was discovered that required judicial approval of the infant settlement had never been sought.

The failure arose from the plaintiffs’ former counsel breaching an undertaking to obtain approval, while defence counsel failed to follow up on the undertaking.

The court concluded that both sides bore responsibility for the procedural failure that rendered the settlement vulnerable.

In the circumstances, the court ordered that each party bear their own costs.

Following a summary judgment dismissing the plaintiffs’ claim against a municipal defendant, the court addressed costs.

The defendant municipality sought costs of the entire action on a partial indemnity basis, arguing it had succeeded in having the claim against it dismissed.

The plaintiffs argued that awarding full action costs was premature because the municipality remained involved through a cross-claim.

The court agreed that it was inappropriate to assess all action costs before trial but held that reasonable partial indemnity costs for the summary judgment motion were warranted.

The court reduced the requested preparation and attendance costs and awarded a portion of the claimed disbursements attributable to the motion.

During long‑term offender sentencing proceedings, the defence sought to qualify a psychotherapist as an expert in the risk assessment of sexual offenders.

The proposed expert had administered certain assessment tools and prepared reports concerning the accused’s treatment and recidivism risk.

The court applied the admissibility criteria for expert evidence from R. v. Mohan and examined the witness’s qualifications, training, and professional background.

The judge concluded that the witness lacked sufficient training and expertise in risk assessment methodology to qualify as an expert in that field.

The witness was permitted to testify about treatment methods and testing used in therapy but was prohibited from providing opinion evidence on the accused’s risk of sexual recidivism.

Following a family law trial addressing child support, spousal support, section 7 expenses, and property-related issues, the court determined costs between the parties.

Although the applicant obtained a result exceeding the respondent’s final settlement offer, her own settlement offers were found unreasonable and several significant issues at trial were decided against her.

The court also considered disclosure difficulties caused by the respondent and the respondent’s submission of an altered contract, which increased mistrust and litigation complexity.

Balancing these factors, the court declined substantial indemnity costs but awarded reduced partial indemnity costs.

Pre-trial costs were allowed as claimed, while trial costs were reduced to reflect the applicant’s limited success on certain issues.

The appellant mother appealed a summary judgment order making her three children Crown Wards with continued access.

The mother argued the motions judge failed to consider her cultural background and that the parenting capacity assessment was culturally insensitive.

The Superior Court found the mother failed to present evidence to counter the Society's overwhelming case, which included her guilty plea to assaulting the children and her inability to meet their significant special needs.

The children, who had been in the same foster home for over two years, expressed a clear wish to remain there.

The court also rejected the mother's fresh evidence, finding it insufficient to alter the outcome.

The appeal was dismissed.

The defendants moved for a stay of a civil action on the basis of an arbitration clause contained in a later energy supply agreement, or alternatively sought an extension of time to deliver a statement of defence.

The plaintiff alleged that the agreements were void and sought damages for negligent or fraudulent misrepresentation relating to the formation of the contracts, asserting that the agreements were not authorized and were based on misrepresentations regarding energy savings.

The court held that the arbitration clause applied only to disputes “under” the agreement and did not encompass a challenge to the existence or validity of the agreement itself.

As the dispute concerned the validity of the agreements rather than performance under them, it fell outside the scope of the arbitration clause.

The motion to stay the action was therefore dismissed, though the defendants were granted additional time to deliver their statements of defence.

Parents appealed a child protection decision finding three children in need of protection under the Child and Family Services Act and ordering Crown wardship without access for two children, with the third placed with the biological father under supervision.

The trial judge had concluded that one or both parents inflicted serious injuries on one child but could not determine which parent was responsible, and that the other parent failed to protect the child.

The appellants argued errors in credibility findings, failure to properly assess evidence, and improper consideration of changed circumstances.

The court held that the trial judge’s findings were supported by the evidence and attracted appellate deference absent palpable and overriding error.

Considering the severity of the injuries and the ongoing risk to the children, the court found that the disposition was in the children’s best interests.

The moving defendants sought summary judgment dismissing the action arising from a fatal motor vehicle collision on the Gardiner Expressway.

The evidence, including a collision reconstruction report and witness statements, indicated that another driver lost control, changed lanes abruptly, and struck the moving defendants’ vehicle while speeding.

The court found no evidence that the moving defendants breached the standard of care of a prudent driver.

Applying the summary judgment principles articulated in Hryniak v. Mauldin, the court concluded that the evidentiary record permitted the necessary factual findings and legal determinations.

The claim against the moving defendants was dismissed and costs were awarded.

The Crown sought admission at trial of the complainant’s testimony from the preliminary inquiry after the complainant died before trial.

The accused argued that admission of the prior testimony would be unfair because cross‑examination at the preliminary inquiry had a different purpose and was not as extensive as it would have been at trial, raising concerns about reliability and prejudice.

The court considered s. 715(1) of the Criminal Code and the principled hearsay framework, including necessity and threshold reliability.

Finding that the complainant testified under oath at the preliminary inquiry in the presence of the accused and was subject to cross‑examination without restriction, the court concluded that the statutory requirements and reliability threshold were met.

The prior testimony was therefore admissible, with ultimate weight to be determined at trial.

The applicant sought judicial interim release pending appeal under s. 679(3) of the Criminal Code after being convicted of sexual interference involving a minor family member and sentenced to nine months’ imprisonment.

The court considered whether the appeal was not frivolous, whether the applicant would surrender into custody, and whether detention was necessary in the public interest.

The applicant raised several grounds of appeal, including an arguable issue regarding whether sexual interference is an included offence under s. 153 of the Criminal Code.

The court found the third ground raised a viable issue on appeal and that the applicant had previously complied with bail conditions and posed no significant public interest risk.

Judicial interim release pending appeal was therefore granted with conditions.

The accused brought a Corbett application seeking to limit the Crown’s ability to cross‑examine him on his criminal record if he testified.

The defence requested that assault convictions be excluded and robbery convictions be characterized as thefts.

The court reviewed the principles governing the admissibility of prior convictions under s. 12(1) of the Canada Evidence Act and the balancing framework from R. v. Corbett.

Given the defence’s extensive reliance on the complainant’s criminal record, the relevance of the accused’s record to credibility, and the need to avoid presenting a distorted picture to the jury, the court declined to edit the record.

The accused’s criminal record was therefore admissible in full, subject to limiting instructions to the jury.

The parties were married in China and later moved to Ontario.

After separation, the wife commenced proceedings in China, resulting in a valid divorce, custody to the wife, and child support.

She subsequently applied for divorce and corollary relief in Ontario.

The court held that because the Chinese divorce was valid, the Ontario court lacked jurisdiction under the Divorce Act to vary the corollary relief (custody and spousal support) already determined in China.

However, exercising its parens patriae jurisdiction, the court increased the child support to align with the Child Support Guidelines and ordered the husband to pay arrears.

The court also determined the equalization of net family property, ordering the husband to pay $18,492.72.

The defendant employer moved for summary judgment dismissing employees’ claims for willful infliction of mental distress arising from alleged workplace sexual harassment and assault by a co‑worker.

The employer argued the claims were barred by full and final releases signed upon termination.

The employees contended the releases were unconscionable and signed under duress, asserting they did not understand that the releases extended beyond severance issues to claims relating to the co‑worker’s criminal conduct and the employer’s alleged failure to protect them.

The court held that material facts were disputed regarding the scope of the releases, the circumstances surrounding their execution, and the employees’ understanding of their legal rights.

Applying the principles in Hryniak and related cases, the court concluded that the record did not permit fair adjudication on summary judgment and that credibility issues required a full trial.

The accused pleaded guilty to impaired driving causing death, impaired driving causing bodily harm, criminal negligence, and possession of stolen property after crashing a stolen vehicle into a house.

The accused suffered severe, life-altering injuries requiring constant medical care.

The court considered Gladue factors, though finding a tenuous link, and the accused's dire medical situation as mitigating factors.

A global sentence of four years was imposed, reduced to 21 months net after credit for pre-trial custody, along with a 10-year driving prohibition and restitution.

Following reasons staying an application under s. 7(1) of the Arbitration Act, 1991 and referring the dispute to arbitration, the successful parties sought partial indemnity costs of over $169,000.

The opposing parties argued that most pre‑hearing work related to issues that would ultimately be determined in arbitration and requested that costs be limited to $7,500.

The court rejected those submissions, holding that parties who refuse to narrow the scope of a hearing cannot later complain about the extent of pre‑hearing work undertaken.

Applying Rule 57, proportionality, and appellate guidance on fixing reasonable costs, the court reduced certain unexplained factum‑drafting time but otherwise accepted the bill of costs.

Costs of $155,292.66 inclusive of disbursements and HST were awarded.

In a family law proceeding involving parenting issues, the respondent brought a motion seeking production of marriage counselling notes and records created by a psychologist who conducted joint counselling sessions with the parties prior to their separation.

The court held that such records are privileged and ordinarily require the consent of both parties for disclosure.

Although the court has authority to order production of privileged documents where relevant and fair to both parties, the motion was brought too close to the scheduled trial and risked necessitating an adjournment and updates to the Office of the Children’s Lawyer report.

Given the presumption of confidentiality in marriage counselling and the late timing of the request, the court found disclosure would be unfair at that stage of the proceeding.

Corrigendum to a prior costs endorsement correcting arithmetic errors in the calculation of a costs award in a civil action.

The court adjusted the surveillance expense total and corrected the amount previously recorded in the endorsement.

The court also deducted a previously satisfied $1,000 costs order made by a Master.

As a result of these corrections, the supplementary costs endorsement amount was reduced.

The plaintiff municipality brought a motion for an interlocutory mandatory order requiring the defendants to remove a berm constructed on their property adjacent to a municipal road.

The municipality argued the berm caused flooding in the road's drainage ditches, creating safety hazards and potential damage to the pavement structure, and blocked water flow to a provincially significant wetland.

The defendants claimed the flooding was caused by the municipality's own ditch maintenance work.

The court preferred the municipality's expert evidence, finding the berm caused the flooding and was located within the wetland setback in breach of conservation regulations.

The court held that the municipal ditch formed part of the 'highway' under the Municipal Act, 2001, and granted a statutory injunction and an injunction for public nuisance, ordering the defendants to remove the berm.

On a motion to change a 2011 consent order governing custody, residence, and child support under the Children’s Law Reform Act and Family Law Act, the father alleged the mother acted in bad faith by interfering with his relationship with the children and sought sole custody with primary residence in Ontario.

The children had moved with the mother to California pursuant to the consent order while Ontario retained jurisdiction.

After an eight‑day trial, the court found no bad faith by the mother and concluded the father failed to establish that transferring the children’s residence was in their best interests.

However, material changes in circumstances justified revisiting decision‑making authority and financial arrangements.

The court awarded the mother sole custody while maintaining the existing residence and access schedule, reduced the father’s table child support based on income excluding certain capital gains, and imposed limits on section 7 expenses.