SCJ 2014

Following a motion addressing custody, access, and child support issues, the court determined costs between the parties.

The applicant was substantially successful on two major issues, including custody and child support, while the respondent obtained expanded access and succeeded on certain ancillary matters.

The court considered the parties’ litigation conduct, including settlement offers and correspondence regarding child support obligations.

Finding that both parties acted somewhat unreasonably and that the result of the motion was mixed, the court exercised its discretion to award partial costs to the applicant.

A mother appealed a Crown wardship and no-access order made following a child protection trial under the Child and Family Services Act.

The appeal challenged the trial judge’s findings regarding kinship placement with the maternal grandmother and alleged errors in weighing evidence, assessing the grandmother’s plan, and considering expert psychological evidence.

The court held that the trial judge applied the correct statutory framework under the CFSA, properly considered kinship placement, and made factual findings supported by the evidence.

The appellant failed to demonstrate palpable and overriding error or an error of law.

Fresh evidence regarding the grandmother’s post‑trial efforts did not justify disturbing the disposition given the child’s need for stability and permanency.

During a negligence trial concerning alleged diesel fuel contamination of lands belonging to a First Nation, the defendants brought a mid‑trial motion seeking to disqualify the plaintiff’s proposed expert geoscientist.

The defendants argued the expert report failed to comply with Rule 53.03 of the Rules of Civil Procedure because it was not prepared for the litigation and did not clearly set out the issues, opinions, and bases for those opinions.

The court held that the report was only minimally compliant with Rule 53.03 and did not sufficiently identify the substance of the proposed expert testimony, thereby prejudicing the defendants’ ability to prepare for trial.

However, completely barring the witness from testifying would be too harsh.

The court granted leave for the witness to testify as a fact witness, subject to strict limits on use of the report and possible supplementation.

During a criminal trial involving multiple assault, uttering threats, and criminal harassment charges, the defence sought to compel a mediator to testify about communications during a confidential family mediation session between the accused and the complainant.

The mediator objected based on a contractual confidentiality clause and settlement privilege.

The court considered the Wigmore criteria for privilege and the doctrine of settlement privilege.

It held that privilege had been waived when the complainant testified about the mediation and alleged threatening conduct by the accused during the session.

The court further found that the accused’s right to make full answer and defence outweighed concerns about the confidentiality of mediation and ordered the mediator to answer the defence’s questions.

The insurer brought a motion compelling the insured and her spouse to attend an Examination Under Oath and requiring delivery of a sworn Proof of Loss under a homeowners insurance policy.

The insured argued that such a requirement was unlawful because the statutory conditions in the Insurance Act applied and prohibited additional conditions beyond those prescribed by statute.

The court held that the policy was a multi-peril homeowners policy rather than a fire insurance policy, and therefore the statutory conditions in Part IV of the Insurance Act did not apply.

Relying on Supreme Court of Canada and Ontario authority, the court found that the insurer was entitled to enforce the contractual examination requirement.

The insured was ordered to attend the Examination Under Oath and deliver a sworn Proof of Loss.

Following a second trial in a bifurcated family law proceeding concerning equalization, spousal support, and child support, the court determined costs.

The applicant was largely successful at trial on equalization and spousal support but unsuccessful on certain issues including child support and some property deductions.

The court rejected arguments that offers to settle triggered automatic cost consequences under the Family Law Rules due to deficiencies in the offers.

Applying r. 24 and considering the reasonableness of the parties’ conduct and the issues pursued unsuccessfully, the court awarded partial indemnity costs significantly below the full recovery sought.

The accused applied under s. 276 of the Criminal Code to adduce evidence of the complainant’s prior sexual activity in a prosecution for sexual interference, sexual assault, and invitation to sexual touching involving a person under 16 years old.

The proposed evidence concerned a later sexual assault allegedly committed against the complainant by another individual and earlier alleged assaults by unknown persons.

Applying s. 276(2)–(3), the court held that the specific instance involving the later alleged assault was relevant to issues of credibility and possible confusion of events and had probative value not substantially outweighed by prejudice.

However, broader allegations of unspecified prior sexual activity were rejected for lack of specificity.

The application was therefore granted in part.

The defendant foreign hotel corporation brought a motion to set aside service of a statement of claim, arguing that service at a Toronto office operated by a marketing contractor did not constitute valid service under the Rules of Civil Procedure.

The plaintiff cross-moved for a declaration that service was proper or, alternatively, for validation of service.

The court applied the test for whether a foreign corporation carries on business in Ontario and examined the contractual marketing relationship between the defendant and the Ontario-based marketing company.

It held that the marketing activities were integral to the defendant’s business and constituted carrying on business in Ontario.

Service effected at the Toronto office was therefore valid, and the defendant’s motion was dismissed.

The appellant mother appealed an interim family court order dismissing her motion for contempt against the father and reinstating the father’s access to the children.

She alleged factual errors, unfairness, and insufficient reasons by the motions judge, and challenged the imposition of a police enforcement clause.

The appellate court reviewed the record and found no material error of fact or law and no basis to interfere with the motion judge’s determination that contempt had not been proven beyond a reasonable doubt.

The court emphasized the limited scope of appellate review in custody and access matters.

The appeal was dismissed.

The applicant brought a motion to change child support, which the respondent eventually settled by accepting an offer.

The parties could not agree on costs.

The court found that the respondent engaged in bad faith by deliberately failing to make timely financial disclosure, which unnecessarily lengthened the proceedings.

The court awarded the applicant costs of $32,223.69, representing partial recovery up to the date of her offer to settle and full recovery thereafter.

The accused was charged with multiple offences, including robbery with a firearm, after robbing a taxi driver and a pedestrian using a BB gun.

The accused admitted to the acts but raised the defence of extreme intoxication due to a combination of alcohol and prescription drugs.

The court rejected the intoxication defence, finding the accused possessed the requisite intent and that section 33.1 of the Criminal Code barred the defence of extreme self-induced intoxication.

However, the court found that the BB gun was broken and could not be readily adapted to fire, meaning it did not meet the definition of a 'firearm' under section 2 of the Criminal Code.

Consequently, the accused was acquitted of the firearm-specific offences but convicted of two counts of robbery.

The accused applied under ss. 278.1–278.5 of the Criminal Code for production of third‑party records in a historical sexual assault prosecution.

The records sought included a school social worker’s notes of the complainant’s initial disclosure, records of counselling sessions with that social worker, and records from a children’s counselling centre.

The court applied the “likely relevance” and “interests of justice” test from the Criminal Code and relevant Supreme Court authorities, balancing the accused’s right to make full answer and defence against the complainant’s privacy interests.

The court ordered production to the court for review of the school social worker’s notes of the initial disclosure, limited counselling information (dates, duration, and type), and any counselling records containing a factual account of the allegations.

The request for broader counselling information from the Children’s Centre was denied.

Police services applied to quash subpoenas duces tecum issued by a preliminary inquiry judge compelling production of police policy directives governing confidential informants.

The subpoenas were issued after the Crown had refused defence disclosure requests for the documents on grounds of irrelevance and informer privilege.

The Superior Court held that a preliminary inquiry judge lacks jurisdiction to determine disclosure applications, whether framed as first-party disclosure under Stinchcombe/McNeil or third-party production under O'Connor.

By issuing subpoenas that effectively compelled production of materials the Crown had declined to disclose and which were arguably held by third parties, the preliminary inquiry judge exceeded his jurisdiction.

The subpoenas were therefore quashed.

The Attorney General of Ontario brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike a statement of claim alleging malicious prosecution and conspiracy to commit malicious prosecution following a fraud charge that was later stayed.

The court held that the pleadings failed to disclose a reasonable cause of action.

The conspiracy allegations lacked the necessary particulars regarding the alleged agreement and overt acts of the conspirators.

The malicious prosecution claim also failed because the pleadings did not adequately allege absence of reasonable and probable cause or malice, as required by the Supreme Court of Canada in Miazga v. Kvello Estate.

The statement of claim against the Attorney General was therefore struck.

The accused brought a pre‑trial Garofoli application seeking exclusion of evidence obtained pursuant to search warrants for his residence and vehicle.

The warrants were based partly on information from a confidential informant and were obtained through a telewarrant.

The court reviewed the unredacted Information to Obtain (ITO) under the step‑six Garofoli procedure and found the affiant had been full, frank, and fair.

The informant’s information met the Debot criteria of being compelling, credible, and corroborated by police surveillance and investigation, providing reasonable and probable grounds for the search.

The court also held that the use of the telewarrant procedure under s. 487.1 of the Criminal Code was justified because it was impracticable to appear before a justice in person.

No s. 8 Charter breach occurred and, in any event, the evidence would not be excluded under s. 24(2).

The applicant corporation sought a stay of the respondent’s motion to set aside a 2007 judgment and requested security for costs due to the respondent’s failure to pay prior costs awards.

The respondent argued the costs were not payable by her and opposed security for costs.

The court found that prior orders imposed joint and several liability for the costs and that the respondent had failed to comply with those orders for several years while residing outside Ontario.

The court held that a party should not be permitted to pursue further relief while ignoring outstanding costs obligations.

The proceeding was stayed unless the respondent paid the outstanding costs and posted security for costs.

The accused was charged with sexual assault contrary to s. 271 of the Criminal Code arising from sexual activity with a complainant who had been sleeping in another man’s bedroom after drinking alcohol.

The central issue was whether the complainant consented or whether the accused reasonably believed she was consenting, including the possibility that she mistakenly believed the accused was another individual.

The court applied the W.(D.) credibility framework and reviewed evidence from the complainant, the accused, an eyewitness, and forensic experts.

While the judge rejected much of the accused’s testimony and had concerns about aspects of the complainant’s evidence, the court found the evidence insufficient to prove the absence of consent beyond a reasonable doubt.

The Crown therefore failed to establish the offence on the criminal standard.

The plaintiffs brought a motion at the start of trial to strike the jury notice served by the defendant, arguing the issues surrounding the plaintiff's severe brain injury were too complex for a jury.

The defendant opposed the motion or alternatively sought bifurcation.

The court found the scientific evidence and damages calculations related to the brain injury were unduly complex and better suited for a judge alone.

However, the court determined the liability issues were straightforward enough for a jury.

The motion was allowed in part, and the trial was bifurcated with liability to be tried by a jury and damages by a judge alone.

The applicant sought payment of trust funds from the sale of a home she renovated and owned, while the respondent counterclaimed for $90,000 in unpaid services allegedly rendered to the applicant's dance studio companies.

The court found the applicant was the sole owner of the property and entitled to the sale proceeds.

The respondent's counterclaim was dismissed as he failed to establish a contractual basis for the claimed fees, having agreed to cease receiving payments when the business struggled.

An application was brought to recognize and enforce a foreign arbitral award arising from a contractual dispute involving the supply of agricultural seeds.

The respondent argued the arbitrator exceeded jurisdiction by ordering repayment of a partial payment after finding both parties had breached the contract and by applying equitable principles outside the contractual terms.

The court held the arbitration clause contemplated disputes relating to breaches of the contract and permitted equitable solutions under the governing arbitration rules.

The arbitrator acted within jurisdiction, and none of the refusal grounds under Article 36 of the International Commercial Arbitration Act were established.

The arbitral award was therefore recognized and enforced.