SCJ 2015

The respondent father brought motions to find the applicant mother in contempt of court for breaching a temporary order prohibiting her from moving the children out of Simcoe County, and to restrain her from moving to Niagara Falls pending a motion to change.

The court found the mother in contempt for wilfully disobeying the order, but imposed no penalty as she had purged her contempt by returning the children.

The court dismissed the motion to restrain the move, finding that the mother's relocation to Niagara Falls was in the best interests of the children due to safety, housing, and family support factors.

The applicant brought a motion to vary an interim spousal support order, arguing a material change in circumstances due to job loss and reliance on Employment Insurance.

The respondent opposed the motion and brought a cross-motion for summary judgment to transfer ownership of a vehicle.

The court found a material change in circumstances and reduced the applicant's spousal support obligation from $1,500 to $640 per month.

The respondent's motion for summary judgment regarding the vehicle was dismissed as there were triable issues regarding contributions to the vehicle.

Following jury convictions for participation in a criminal organization involved in trafficking firearms from Windsor to Toronto, the court imposed significant custodial sentences.

The organization coordinated the acquisition, transport, and distribution of numerous illegal firearms, some recovered through police surveillance and search warrants.

The accused participated at different levels of responsibility, with one acting as the leader organizing firearm transfers and others assisting as couriers and custodians.

Emphasizing denunciation and deterrence for firearm trafficking and organized criminal activity, the court imposed consecutive sentences pursuant to s. 467.14 of the Criminal Code.

The leader received a total sentence of 12 years less credit for pre‑trial custody, while the courier received 6 years less credit.

The appellant pleaded guilty to possession of marijuana and two counts of breach of recognizance.

The sentencing judge rejected a joint submission and imposed a sentence of six months' imprisonment in addition to 90 days of pre-trial custody.

The appellant appealed the sentence and applied for bail pending appeal.

The Superior Court of Justice denied the application, finding that while the appeal was not frivolous, the argument that the sentence was manifestly unfit was not strong given the appellant's extensive criminal record.

Bail pending appeal was denied and the appeal was expedited.

The accused brought Charter applications alleging violations of their s. 8 and s. 9 rights during a drug trafficking investigation.

The police arrested one accused based on confidential informant tips and surveillance, and subsequently conducted a warrantless 'clearing search' of the accused's residence before obtaining a search warrant.

The court found the arrest was lawful and based on reasonable and probable grounds.

However, the court held the warrantless 'clearing search' violated s. 8 of the Charter as there were no exigent circumstances.

Despite the s. 8 breach, the court admitted the evidence under s. 24(2), finding the breach was not serious, the police acted in good faith, and the evidence was reliable and crucial to the prosecution.

The applications were dismissed.

The defendants moved for costs of the action after the plaintiff's action was dismissed by the Registrar and the plaintiff's subsequent motion to set aside the dismissal was denied.

The plaintiff requested a further extension of time to make costs submissions, which the court denied as unreasonable and unduly delaying the matter.

The court awarded costs to the defendants fixed at $8,500 all-inclusive on a partial indemnity basis, noting the plaintiff should have accepted the defendants' earlier offer of a dismissal without costs.

The plaintiff, a registered practical nurse and office manager with 22 years of service, sued her employer, a plastic surgeon, for wrongful dismissal.

Following a dispute over the implementation of electronic medical records, the employer yelled at the plaintiff, used profanity, and told her to get out, stating he was sick of looking at her 'ugly face'.

The court found that the plaintiff was expressly fired, or alternatively constructively dismissed, as the employer's conduct made continued employment intolerable.

The court awarded a 24-month notice period, less mitigation earnings, but dismissed claims for aggravated and punitive damages.

The plaintiff brought a motion for a certificate of pending litigation regarding a terminated agreement of purchase and sale for commercial property.

The plaintiff had failed to close the transaction due to a lack of funds and waived tender, resulting in the forfeiture of its deposits.

The plaintiff subsequently alleged that the defendant failed to disclose unrelated litigation in Quebec, arguing this non-disclosure kept the agreement alive.

The court found the Quebec litigation irrelevant, determined the property was not unique, and concluded damages would be an adequate remedy.

The motion was dismissed.

The accused applied for a stay of proceedings alleging a breach of the right to make full answer and defence under s. 7 of the Charter due to missing police notes and investigative materials in a historical sexual assault prosecution.

The defence argued that the loss of notes from several investigating officers and the absence of photo lineup materials impaired the ability to challenge the investigation.

The court applied the principles governing lost evidence from R. v. La and related jurisprudence, considering whether the evidence was relevant, whether its loss resulted from unacceptable negligence, and whether the accused suffered actual prejudice.

The court concluded that the substance of the allegedly missing evidence was preserved through existing reports, testimony, and other documentation, and that the missing materials were either irrelevant or duplicated elsewhere.

No prejudice to the ability to make full answer and defence was established and no Charter breach occurred.

Competing motions were brought to vary a Mareva injunction to permit access to frozen funds for legal expenses.

The plaintiffs sought $1.5 million from a frozen bank account in their name, while the defendants sought $534,000 from other frozen assets.

The court reviewed the legal test governing access to funds subject to a Mareva injunction and held that the test for defendants seeking release of funds did not apply in the same way when plaintiffs sought access to funds they claimed to own.

The court found the plaintiffs had established a sufficient proprietary interest in the account but exercised discretion to limit access due to credibility concerns and the procedural history of multiple collateral proceedings.

Partial funding was granted to both sides to permit fair participation in the litigation.

In an action concerning an alleged conspiracy to deprive the plaintiff of her share of her late father's estate, the plaintiff moved for further production of pre-2004 medical records from the defendant doctor and the federal government regarding her father's shock therapy in 1969 or 1970.

The defendant Birch also moved to compel the plaintiff to answer a refusal to obtain records from Bell Canada regarding an alleged wiretap.

The court dismissed all motions, finding the plaintiff's production requests lacked relevance and violated the principle of proportionality, and that Birch's motion for Bell Canada records was also disproportionate given the minimal relevance and alternative remedies available.

Following a lengthy oppression remedy trial involving a shareholder dispute in a real estate investment company, the court determined the appropriate costs award and interest payable after judgment.

The plaintiffs sought substantial indemnity costs exceeding $1.3 million, alleging reprehensible litigation conduct by the defendants.

The court rejected the request for elevated costs and held that partial indemnity costs were appropriate, emphasizing proportionality, the plaintiffs’ limited success compared to the amounts claimed, and duplication resulting from multiple counsel.

The court also addressed costs related to several pretrial motions, expert witness fees, and disbursements, reducing certain expert accounts and awarding the defendants $5,000 for a post‑judgment remediation motion.

Prejudgment and postjudgment interest were fixed under the Courts of Justice Act.

The accused was convicted of manslaughter for the unprovoked stabbing death of his stepfather.

The accused suffers from severe schizophrenia and was likely in an acute psychotic state at the time of the offence.

The Crown sought an 8-year sentence, while the defence sought a sentence equivalent to 4 years and 3 months followed by probation.

The court weighed the gravity of the unprovoked attack against the mitigating factor of the accused's major mental illness.

The court sentenced the accused to 6 years' imprisonment, with credit for pre-trial custody, resulting in a further 33 months to serve, and recommended placement in a specific facility to ensure ongoing psychiatric treatment.

The accused was charged with robbery, wearing a disguise, carrying a concealed weapon, and breaching probation after a man pulled a knife on three women at a bus stop and demanded their purses.

The central issue at trial was identification.

The court relied on eyewitness testimony from a victim who recognized the accused as a tenant in her building, corroborated by security camera footage and items seized from the accused's apartment.

The court found the accused guilty on all counts.

The applicant brought a motion for declarations concerning whether portions of prior family property orders were automatically stayed by the respondent's appeal.

The court held that the provision directing equal sharing of sale proceeds from jointly owned property was not a provision for payment of money within rule 63.01, and therefore was not stayed.

However, the deductions and prior costs order were provisions for payment of money and were stayed pending appeal.

The court directed partial release of the trust funds, subject to holdbacks, and awarded motion costs to the applicant.

Members of a religious community incorporated under the Corporations Act disputed control of the corporation administering their temple.

After a consent order established a three-person board, the applicants sought recognition of two additional directors allegedly appointed by the community's spiritual leader and invalidation of steps taken by the existing board.

The court held that the evidence of the alleged appointments was inadmissible and unreliable hearsay, and in any event the consent order circumscribed any authority to appoint additional directors pending an annual members meeting.

The application was dismissed, and the matter was directed into case management with related proceedings.

Certain beneficiaries of an estate brought a motion to remove the estate solicitor and his firm due to a conflict of interest in a contested passing of accounts.

The solicitor had previously acted for one of the estate trustees when she was the deceased's power of attorney for property, and had handled many of the transactions now in dispute.

The court found that the solicitor's extensive involvement in the deceased's affairs and the estate created a potential conflict situation.

The motion was granted and the solicitor's firm was removed as counsel for the estate.

The accused was charged with drug trafficking and related offences after a police officer observed a hand-to-hand drug transaction inside the accused's parked motor vehicle.

The officer made the observation while standing on a public sidewalk, looking through the open passenger window.

The accused brought a Charter application arguing that the officer's visual observation constituted an unreasonable search under s. 8 of the Charter, seeking exclusion of the evidence under s. 24(2).

The court dismissed the application, holding that the accused had no reasonable expectation of privacy in his observable activities inside a motor vehicle parked on a public street, and therefore the observation did not constitute a search.

The plaintiffs sued a former 50/50 shareholder and his father-in-law after a closely held corporation failed and remained indebted to a lender connected to the other shareholder's family.

The court held that the parties' oral arrangement to share profits and liabilities did not amount to a personal guarantee or an agreement to pierce the corporate veil, and did not displace the ordinary principle of limited shareholder liability under the Ontario Business Corporations Act.

The court further found that the alleged lender never entered into a binding loan agreement with the corporation and made no actionable pre-contractual representation.

The claim and counterclaim were both dismissed.

Décision portant uniquement sur les dépens après une motion en droit de la famille concernant l'horaire parental, les vacances estivales et les activités sportives des enfants.

La Cour a appliqué les règles 24(1), 24(11) et 18(14) des Règles en matière de droit de la famille, concluant que le succès était partagé mais que l'intimé avait obtenu davantage de succès.

La Cour a aussi tenu compte du caractère tardif de l'offre de règlement de l'intimé et de la capacité de payer de la requérante.

Des dépens de 500 $ ont été accordés à l'intimé.