SCJ 2014

The defendant private pre-school moved for summary judgment to dismiss a claim for breach of fiduciary duty brought on behalf of a four-year-old student who was required to withdraw due to repeated misbehavior.

The plaintiff failed to file any evidence in opposition to the motion.

Applying the Hryniak framework, the court used its enhanced fact-finding powers to conclude that the school's decision was contractual, not fiduciary, and that there was no evidence of damages.

The action was dismissed with costs awarded to the defendant.

The applicant brought a motion for retroactive and ongoing child support and interim spousal support following separation after a 13‑year marriage with one child.

The respondent argued child support should be calculated only on base salary because his employment bonus was uncertain and claimed undue hardship due to supporting his sponsored mother.

The court held that child support is presumptively based on line 150 income and rejected the undue hardship claim, finding the respondent had consistently received bonuses and failed to prove exceptional hardship.

Retroactive child support was awarded applying the principles in D.B.S. v. S.R.G., along with ongoing table support based on prior year income.

Interim spousal support was also ordered, with the court relying on the Spousal Support Advisory Guidelines as a non‑binding tool and considering the income disparity between the parties.

The applicant sought advancement and indemnification of legal costs under an employment contract while facing disciplinary proceedings arising from an internal workplace investigation.

The court considered whether the matter could proceed by application under Rule 14.05 of the Rules of Civil Procedure and whether the contractual indemnification clause applied to costs incurred during the investigation stage.

The court held that the presumption of good faith applies and that the respondent had not established a strong prima facie case of dishonesty sufficient to trigger the contractual exclusion.

Interpreting the contract broadly, the court found that the internal investigation and related disciplinary process constituted a “proceeding” within the meaning of the indemnification clause.

The respondent was therefore obligated to advance and reimburse the applicant’s legal costs pending the outcome of arbitration.

The applicant mining company brought a motion to strike portions of a respondent’s affidavit and factum on the basis that they disclosed communications made during settlement negotiations.

The court considered the principles governing settlement privilege as articulated by the Supreme Court of Canada and the conditions required for the privilege to arise.

It found that a litigious dispute existed or was contemplated at the time of the communications, the communications were made with an implied intention of confidentiality, and their purpose was to attempt settlement of the dispute.

As no competing public interest justified disclosure, the communications were protected by settlement privilege.

The court ordered that the impugned passages and documents be struck or expunged from the responding materials.

A custody and parenting dispute concerning two young children where both parents sought primary custody.

Evidence revealed significant parental conflict, instability in the mother’s home due to revolving partners and chaotic household dynamics, and the father’s ongoing emotional reactivity toward the mother.

An Office of the Children’s Lawyer clinician described the children as closely bonded but experiencing stress related to instability and adult conflict.

Applying the best interests test under s. 24 of the Children’s Law Reform Act, the court concluded neither parent was presently suitable as a primary residential parent.

The court ordered a parallel parenting regime with alternating weeks, divided decision‑making authority, counselling for the children, and set‑off child support.

In a supplementary endorsement following earlier reasons, the court addressed issues arising from submissions on costs in a garnishment proceeding.

The parties disputed whether certain payments constituted “wages” under the Wages Act, which would significantly affect the amount of judgment potentially recoverable through garnishment and the proportionality considerations relevant to costs.

The court directed the parties to address whether the characterization issue could be determined by a Master on reference or should be decided immediately by the judge.

Counsel were instructed to confer and advise whether they could agree on the issues or wished to provide written submissions or argue the matter in open court.

Following a successful summary judgment motion dismissing a professional negligence action against former lawyers, the defendant law firm sought costs for both the summary judgment motion and the defence of the action.

The plaintiff was a self-represented litigant living on social assistance with significant personal debts and no ability to pay.

The court acknowledged that while the action was legally unsound, it was not frivolous and had been prosecuted respectfully and in good faith.

Exercising its discretion under the costs principles, the court declined to award even a symbolic costs amount given the plaintiff’s financial circumstances and the lack of practical utility in making an unenforceable order.

The accused was charged under s. 252(1) of the Criminal Code after striking a cyclist with a pickup truck and leaving the scene of the collision.

Although the accused initially stopped, he remained only briefly, failed to provide his name and address, and did not offer assistance to the seriously injured cyclist before departing.

The accused claimed he left temporarily to obtain water and blankets to assist the victim, but the court rejected this explanation as not credible and inconsistent with the surrounding evidence.

The court found that the accused’s conduct demonstrated an intention to escape potential civil or criminal liability, particularly given his status as a suspended driver and his attempt to leave the area rapidly.

The Crown proved beyond a reasonable doubt that the accused failed to provide required information and assistance with the requisite intent under s. 252(1).

Following a summary judgment motion concerning limitation defences in a commercial lease dispute, the court determined the appropriate award of costs and interest.

The defendant had been partially successful on the motion, particularly on a limitation argument affecting the recoverable quantum of damages under a liquidated damages clause.

The court held that the defendant achieved meaningful success and was entitled to recover a significant portion of its partial indemnity costs.

However, the plaintiff was awarded costs related to an issue concerning rent arrears that could have been resolved earlier.

Net costs were awarded to the defendant with pre‑judgment interest payable to the plaintiff on the rent arrears component.

The applicant estate trustee sought to rectify the deceased's secondary will, which dealt solely with her house.

Due to a drafting error by the solicitor, the secondary will omitted a residue clause and duplicated bequests made in the primary will, which would have resulted in a partial intestacy benefiting estranged children.

The estranged children opposed the application, arguing the will should be interpreted as written.

The court found that the drafting solicitor made a clerical error that did not reflect the testator's intentions, and ordered the will rectified to include the residue clause and remove the duplicated bequests.

The plaintiffs brought a civil action in battery arising from a professional wrestling match in which the defendant intentionally cut the plaintiff with a razor blade immediately after cutting himself.

The court found that the defendant, who had Hepatitis‑C, transmitted the virus to the plaintiff through blood‑to‑blood contact.

As a result, the plaintiff lost a professional wrestling contract with a major wrestling organization and underwent painful medical treatments before ultimately being cured.

The court held the defendant liable for battery and awarded damages for pain and suffering, past income loss, and significant future income loss based on the lost opportunity to pursue a professional wrestling career.

Family members also received damages under the Family Law Act for loss of care, guidance, and companionship.

The respondent brought a motion for leave to appeal an interlocutory order preserving one‑half of the proceeds of sale of a property pending trial of a constructive trust and unjust enrichment claim between former common‑law partners.

The moving party argued the motion judge erred by referring to the parties as married and by referencing equalization payments despite the parties not being legally married.

The court held that the motion judge correctly understood the claim as one grounded in constructive trust and unjust enrichment and properly applied the interlocutory injunction test under s. 12(b) of the Family Law Act to preserve property.

The court found no good reason to doubt the correctness of the order and concluded the proposed appeal raised no issue of general or public importance.

The court also ordered temporary guideline child support based on the payor’s Employment Insurance income and declined to order retroactive support due to insufficient evidence.

An experienced private mortgage lender advanced $100,000 secured by a first mortgage in a property transaction that proved to be fraudulent.

The borrower admitted participating in the fraud but died without assets.

The central issue at trial was whether the solicitor who acted for both borrower and lender or the mortgage broker was responsible for orchestrating the scheme.

The court accepted corroborated evidence that the solicitor was the architect and principal beneficiary of the fraud, drawing adverse inferences from his failure to testify and from suspicious documents in his file.

Judgment was granted for the lender for her losses with prejudgment interest and punitive damages, and the third‑party claim against the broker was dismissed.

The appellant appealed a summary conviction for impaired driving following a trial where he had been acquitted of failing to provide a breath sample but convicted of impaired operation.

The appellant argued the trial judge made unreasonable and inconsistent findings, including misapprehending evidence regarding his dexterity, drawing inferences from unsuccessful breath attempts, and misstating that he had testified he was “high.” The appeal court held that the trial judge’s factual findings were entitled to deference absent palpable and overriding error.

The court found that any misstatement in the reasons was not material and did not affect the reasoning process leading to the conviction.

The conviction for impaired driving was supported by strong evidence and the appeal was dismissed.

A commercial landlord sought declarations that a tenant failed to validly exercise an option to extend a lease and was therefore an overholding tenant.

The tenant brought a competing application seeking a declaration that it had validly exercised the option or alternatively that the option remained exercisable.

The court reviewed the law governing the exercise of lease renewal or extension options and the requirement for clear and unequivocal acceptance communicated to the landlord.

Interpreting the lease and rider provisions together, the court found that written notice delivered by courier within the rider’s timeline satisfied the contractual requirements and unambiguously exercised the extension option.

The landlord’s arguments concerning timing, delivery method, authority of the signatory, and use of the term “renewal” instead of “extension” were rejected.

A bankrupt individual applied for discharge from personal bankruptcy arising from guarantees given for the debts of a failed company.

A creditor opposed the discharge, alleging the bankrupt had sufficient income and failed to properly account for assets and surplus income.

The court scrutinized the bankrupt’s financial disclosures, including unusually high tax withholdings and payments to a family member serving as a director of the successor corporation, which raised concerns about the accuracy of surplus income calculations and potential funds available to creditors.

Although direct evidence of misconduct was limited, the court found that fairness to creditors and the integrity of the bankruptcy system required a substantial payment as a condition of discharge.

The court ordered a conditional discharge requiring payment of $55,000 to the estate and directed that tax refunds be paid to the trustee.

The offender was convicted of counselling a murder after attempting to hire an undercover police officer to kill her husband.

The sentencing court considered principles of denunciation and deterrence applicable to murder-for-hire schemes, noting that such conduct is treated similarly to attempted murder for sentencing purposes.

The offender had no criminal record and had a difficult personal history involving early arranged marriage, illiteracy, and cultural subjugation, which the court treated as mitigating factors.

However, the offence was deliberate, planned, and involved prior attempts to hire others to commit the killing, which were aggravating factors.

After reviewing comparable authorities and the applicable sentencing range of approximately three to eight years, the court imposed a sentence of three and one-half years’ imprisonment.

The self-represented plaintiff sued the defendant airline for breach of contract and negligence after he was denied boarding on a return flight from Jamaica to Toronto because he presented a Canadian Citizenship Card instead of a passport.

The plaintiff claimed damages for the loss of a construction project and future business opportunities resulting from his delayed return.

The Superior Court of Justice dismissed the action, finding that the airline properly exercised its contractual right to refuse carriage to ensure compliance with its obligations under the Immigration and Refugee Protection Act.

The court also found that the plaintiff's claimed damages were unproven, contributed to by his own failure to mitigate, and too remote.

Two competing applications concerned governance of a national non‑profit organization and ownership of real property administered by one of its local branches.

The court considered whether a trust agreement purporting to grant beneficial ownership of property to the branch was valid and whether the organization’s executive board lawfully removed the branch president and dissolved the branch.

Interpreting the organization’s constitution, the court held that branches could not own property and that all real property was owned beneficially and legally by the national organization.

The purported trust agreement was therefore invalid.

However, the executive board’s decisions removing the branch president and dissolving the branch were quashed for breach of natural justice because adequate notice and opportunity to respond were not provided.

Sentencing decision following convictions for sexual assault, sexual interference, and invitation to sexual touching involving a child relative.

The offences occurred repeatedly over approximately one to one and a half years and involved sexual touching between the accused and a child victim in a familial setting, constituting a breach of trust.

The court considered aggravating factors including the victim’s young age, the repeated nature of the conduct, and significant psychological harm reflected in a victim impact statement, as well as mitigating factors including the offender’s lack of criminal record and stable employment history.

Emphasizing denunciation and deterrence in accordance with Criminal Code sentencing principles, the court imposed a custodial sentence below the Crown’s requested penitentiary range but above the defence’s proposed range.