SCJ 2015

Following dismissal of a motion seeking to remove the Public Guardian and Trustee as litigation guardian for a co‑plaintiff and to appoint different guardians, the successful party sought costs.

The court applied the principle that costs generally follow the event and considered the factors under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

The responding parties’ submissions largely attempted to re‑argue the merits of the earlier motion rather than address costs.

The court fixed partial indemnity costs payable to the successful party.

Competing motions arose regarding funding the care of an incapable elderly woman under the Substitute Decisions Act.

One child sought to increase a line of credit secured against the incapable person’s Toronto condominium to fund ongoing care, while other siblings sought an order to sell a Florida condominium allegedly jointly owned with one sibling.

The court held that the urgent need to maintain care justified extending the line of credit, while disputes concerning ownership, expenses, occupation rent, and tax consequences relating to the Florida property required further evidentiary determination.

A bifurcated hearing was ordered to resolve those issues before determining whether the Florida property should be sold.

The offender was convicted after trial of three counts each of impaired driving causing bodily harm and dangerous driving causing bodily harm arising from a high-speed impaired driving incident that caused a severe head-on collision and serious injuries to three victims.

The court considered extensive aggravating factors including a blood alcohol concentration more than twice the legal limit, prolonged dangerous driving on a busy highway, and devastating and permanent injuries to one victim.

Mitigating factors included the offender’s lack of criminal record, otherwise exemplary life, genuine remorse, and severe permanent injuries he himself sustained in the collision.

Emphasizing denunciation and general deterrence in impaired driving offences, the court imposed concurrent custodial sentences.

Ancillary orders included probation conditions and a lengthy driving prohibition.

The accused brought a pretrial Charter motion seeking exclusion of drugs seized after police stopped his vehicle during an investigation for another suspect who had fled from police.

The defence alleged breaches of ss. 8, 9, and 10(a) of the Canadian Charter of Rights and Freedoms and sought exclusion of evidence under s. 24(2).

The court held that the vehicle stop constituted a lawful investigative detention supported by a nexus between the vehicle occupants and the suspect being pursued.

The subsequent arrest for driving while suspended and the search incident to arrest were lawful, and the seizure of drugs in the vehicle was justified under the plain view doctrine.

No Charter breach was established and the evidence was not excluded.

Following a 28‑year unmarried relationship with two children, the parties litigated claims relating to child support, spousal support, and alleged unjust enrichment tied to a family‑owned food truck business.

The respondent asserted entitlement to an ownership interest or compensation for unpaid labour, alleging the parties jointly operated a profitable business generating undeclared income.

The court rejected the unjust enrichment claim, finding the applicant alone purchased the business from her father and that the respondent’s contributions did not enrich the applicant or increase the business’s value.

However, the court accepted evidence that the applicant understated income and imputed annual income of $100,000 for support purposes.

Orders were made for guideline child support, certain section 7 expenses, and a lump‑sum spousal support payment to assist the respondent’s transition to a reduced standard of living.

The plaintiff alleged that the defendant held title to a residential property as a bare trustee to enable mortgage financing while the plaintiff maintained beneficial ownership and paid all property expenses.

The defendant denied the existence of a trust and asserted she owned the property and the plaintiff was merely her tenant.

After disputes arose and the defendant initiated Landlord and Tenant Board proceedings, the property was sold under power of sale and repurchased by the plaintiff, resulting in alleged lost equity.

The court conducted a mini‑trial to resolve credibility issues and accepted the plaintiff’s evidence that the defendant held title in trust and repudiated the trust arrangement.

The court also found that the defendant had received and failed to repay two loans advanced in 2008 and 2009.

The offender was sentenced following conviction for possession of a controlled substance for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act.

Police seized significant quantities of crack cocaine and powder cocaine along with cash from a residence associated with the offender, indicating a mid‑level commercial trafficking operation.

The Crown sought a custodial sentence of five to six years, while the defence requested a sentence of two and a half to three and a half years with substantial credit for pre‑trial custody and restrictive bail conditions.

The court rejected arguments that the trafficking was driven primarily by addiction and declined to grant the full credit sought for time spent on judicial interim release.

Balancing denunciation and deterrence with the offender’s youth and the jump principle, the court imposed a four‑year penitentiary sentence with credits applied, along with forfeiture, a lifetime weapons prohibition, and a DNA order.

The defendants brought a motion asserting that the plaintiff’s motor vehicle accident claim was statute-barred under the two‑year limitation period tied to the discoverability of a threshold injury under s. 267.5(5) of the Insurance Act.

The court considered whether it was discoverable before January 23, 2010 that the plaintiff had sustained a permanent and serious impairment meeting the statutory threshold following a 2008 accident.

Although the plaintiff had suffered significant symptoms and had consulted numerous medical professionals, the medical evidence did not clearly establish permanence or seriousness prior to that date.

The court held that the available medical reports created a genuine issue requiring a trial regarding discoverability and the limitation defence.

The defendants’ motion was therefore dismissed, leaving the limitation and threshold issues to be determined at trial.

The applicant sought release pending trial on a charge of second degree murder under s. 235(1) of the Criminal Code.

The court considered detention under the primary, secondary, and tertiary grounds in s. 515(10) following a reverse-onus bail application under s. 522.

Evidence included the applicant’s extensive criminal record for breaches, her presence at the homicide scene, forensic evidence linking her footwear and clothing to the victim’s blood, and her conduct before and after the alleged offence.

The proposed release plan involved residence at a supervised disability facility with her brother acting as surety.

The court concluded that the applicant failed to discharge her onus on all three grounds, finding a significant risk of non-attendance, public safety concerns, and that detention was necessary to maintain confidence in the administration of justice given the gravity of the offence and strength of the evidence.

The plaintiffs brought a motion to set aside a Registrar's order dismissing their action for delay under Rule 48.14(1).

The action arose from alleged environmental contamination by the defendants' dry cleaning operations.

The court applied the four-factor test for setting aside a dismissal order.

While finding no prejudice to the defendants, the court concluded the plaintiffs failed to adequately explain the litigation delay or their failure to meet the set down deadline.

Furthermore, the plaintiffs' claims were already preserved in a crossclaim in a related, more advanced action.

To avoid multiplicity of proceedings, the motion to set aside the dismissal was dismissed.

Following a family law motion in which the applicant obtained financial disclosure orders, interim spousal support, and defeated the respondent’s request to vary child support, the court determined the appropriate costs award.

Applying s. 131 of the Courts of Justice Act and Rule 24 of the Family Law Rules, the court considered the presumption that a successful party is entitled to costs, the reasonableness of the parties’ conduct, and the proportionality of the legal fees claimed.

Although the applicant was substantially successful and had made an offer to settle that was equalled or exceeded by the court’s prior endorsement, the court found the time spent preparing the motion excessive for the relatively uncomplicated issues.

Costs were therefore reduced from the amount claimed.

The respondent was ordered to pay a lump sum costs award to the applicant.

The Crown appealed a summary conviction acquittal on a charge of operating a motor vehicle with a blood alcohol concentration exceeding the legal limit.

The trial judge found that the investigating officer lacked the required reasonable suspicion to make an approved screening device demand under s. 254(2) of the Criminal Code, rendering the demand an unreasonable search contrary to s. 8 of the Charter.

The breathalyzer results were excluded under s. 24(2), leading to an acquittal.

On appeal, the court held that the officer’s testimony demonstrated a misunderstanding of the legal threshold for making a screening demand and supported the trial judge’s finding that the officer did not possess the necessary subjective belief.

The exclusion of the evidence and resulting acquittal were upheld.

The defendants in a lawyer negligence action brought a motion seeking an order that their action be tried simultaneously or consecutively with a related wrongful dismissal action involving overlapping factual and legal issues.

The court considered Rule 6 of the Rules of Civil Procedure and the policy in s.138 of the Courts of Justice Act favouring the avoidance of multiplicity of proceedings.

The judge found substantial commonality of issues, particularly regarding whether alleged professional negligence caused the loss of damages sought in the wrongful dismissal claim.

Separate trials risked duplication of evidence, inconsistent findings, and unnecessary expense.

The court ordered that the two actions be tried together or consecutively, subject to the discretion of the trial judge.

The responding parent brought a motion seeking permission to travel internationally with the parties’ two children without the other parent’s consent.

The moving parent opposed the request, asserting a risk the children would not be returned to Ontario.

The court found insufficient reliable evidence to support the alleged risk of non‑return and noted the responding parent’s long-standing ties to Canada and the children’s established residence there.

The court also considered that the destination country was a Hague Convention signatory and that maintaining contact with extended family was in the children’s best interests.

The motion was granted, permitting the temporary two‑week trip subject to communication and disclosure conditions.

The Crown applied under Criminal Code forfeiture provisions seeking an order that $39,680 seized from a residence be forfeited as proceeds of crime following the respondent’s conviction for offences connected to a drug trafficking organization.

The respondent argued the funds belonged to his parents, who were innocent third parties, and sought the return of the money to them.

The court held that although circumstantial evidence could support an inference that the funds were proceeds of crime, credible testimony from the respondent’s parents provided an equally plausible explanation that the money represented long-term household savings.

The Crown therefore failed to establish on a balance of probabilities that the funds were proceeds of crime.

The court found the parents were lawful owners and innocent of complicity and ordered the funds returned to them under s. 462.41(3) of the Criminal Code.

The defendant brought a motion for summary judgment seeking dismissal of a motor vehicle accident claim on the basis that it was statute-barred under the Limitations Act, 2002.

The central issue was when the claim became discoverable under s. 5 of the Act, given the statutory threshold requirement for serious and permanent impairment under s. 267.5(5) of the Insurance Act.

The court held that discoverability required a sufficient body of medical evidence demonstrating that the plaintiff’s injuries met the statutory threshold.

Because the first medical opinion diagnosing serious and permanent impairment arose in June 2010, the claim issued in May 2012 was within the limitation period.

The motion for summary judgment was dismissed and partial summary judgment was granted to the plaintiff dismissing the limitation defence.

The plaintiffs alleged the existence of a partnership in a training and e‑learning business and sought recognition of partnership interests, constructive trust, and unjust enrichment remedies.

The defendants denied that any partnership agreement had been finalized.

After a lengthy trial turning largely on credibility, the court found that no partnership agreement had ever been concluded, noting the absence of agreed essential terms and the lack of capital contributions.

The court also rejected equitable claims, finding the evidence unreliable and noting that the alleged payments were in fact kickbacks rather than partnership income.

In a related action, the corporate plaintiff failed to establish defamation or intentional interference with economic relations arising from communications to college clients.

The defendants moved for summary judgment to dismiss the plaintiffs' action arising from a real estate transaction.

The plaintiffs, real estate developers, purchased surplus government land and later faced blockades by aboriginal protesters.

The plaintiffs alleged the defendants breached a duty of good faith and failed to disclose latent defects by not informing them of prior monetary claims and a lawsuit by the Six Nations regarding the land.

The court granted summary judgment dismissing the action, finding no duty to disclose the claims under the contract, no evidence of dishonesty to trigger a breach of good faith, and that the claims did not constitute a latent defect as they did not render the land uninhabitable or dangerous.

Following a successful motion for security for costs, the moving party sought partial indemnity costs exceeding $51,000.

The responding party argued that no costs should be awarded or that costs should be reserved pending judicial review of the motion decision.

The court assessed the relevant Rule 57.01 factors including partial success on the motion, the complexity of the issues, the parties’ conduct, and the reasonableness of the time claimed in the costs outline.

While the moving party was the successful party, some claimed time was excessive and the security order represented only about 65% of what had been sought.

The court fixed partial indemnity costs at $25,000 inclusive of tax.

A condominium corporation brought an application under s. 134 of the Condominium Act, 1998 seeking a compliance order against a unit owner who failed to maintain his unit and refused to prepare it for pest control treatment despite a bed bug infestation and excessive clutter creating health and safety concerns.

The court found the owner breached multiple statutory obligations under the Act and the condominium declaration, including duties to maintain the unit and to avoid dangerous conditions likely to cause damage or injury.

The court ordered the owner to prepare the unit for pest control treatment and authorized the corporation to enter the unit and carry out preparation and treatment if the owner failed to comply within 30 days.

Costs and remediation expenses were ordered recoverable as common expenses payable by the owner.