SCJ 2015

The plaintiff brought a motion for summary judgment seeking repayment of funds withdrawn from his bank account for an alleged car loan arranged through a dealership acting as the bank’s agent.

The bank asserted that a valid loan agreement existed and relied on signed loan documentation and the plaintiff’s payment history.

The court held that the bank failed to establish that acceptance of the loan application was communicated to the borrower, a required element for contract formation.

Because the bank did not prove that a binding loan agreement existed, it had no legal right to withdraw the funds.

Summary judgment was granted requiring repayment of the withdrawn amount with interest, while additional damage claims were dismissed for lack of evidence.

The moving defendant sought summary judgment dismissing a medical malpractice action arising from emergency treatment of a laceration caused by broken glass.

The court held that, while the plaintiff's plastic surgery expert was not practising in the same field as the emergency physician and therefore could not alone establish the standard of care in emergency medicine, the defendant's own emergency medicine expert did not eliminate a genuine issue for trial because his opinion was premised on an assumption contrary to the admitted evidence that the plaintiff reported feeling glass in the wound.

Applying the summary judgment framework under Rule 20 and Hryniak, the court found a triable issue on breach of the standard of care.

The motion was dismissed and the court remained seized.

The defendant moved to remove opposing counsel on the basis of concurrent representation and misuse of confidential information arising from an asset purchase transaction and related holdback dispute.

The court found that the law firm acted on behalf of the moving party in attempting to collect an account receivable and then, while still retained or at minimum before that retainer ended, acted against the moving party by demanding holdback payments for the responding parties.

Applying the MacDonald Estate framework and the bright line rule from Neil and McKercher, the court held that confidential financial information had been conveyed and that the retainers were sufficiently related.

The court concluded that disqualification was required to protect the administration of justice.

The motion to remove counsel was granted.

The moving party sought to amend a motor vehicle action by replacing a Doe defendant with the allegedly responsible driver after the presumptive limitation period had expired.

The court held the record was fatally deficient on discoverability because there was no direct evidence from the plaintiff and almost no medical evidence connecting the MRI findings to a threshold-level permanent serious impairment.

The court also found no due diligence in identifying the proposed defendant, as the plaintiff had the licence plate number from the date of the accident and offered no explanation for not conducting a plate search earlier.

The motion was dismissed, and costs were awarded to the responding party.

The applicant sought recognition of a 50 percent ownership interest in residential property, rectification of title, and partition and sale after a later registered transfer reduced her interest to 5 percent.

The court found that the respondent had made a bona fide gift of a one-half interest to the applicant in 2013 within the context of an intimate relationship, and that the subsequent transfer was executed without the applicant's knowledge or consent.

Treating the impugned transfer instrument as fraudulent and void under the Land Titles Act, the court ordered rectification of the register.

The court further held that the respondent had shown no basis to resist partition and sale under the Partition Act and ordered the property listed for sale with equal division of net proceeds.

The accused was charged with two counts of robbery involving two separate taxi drivers on consecutive nights.

In both incidents, two men entered the taxi, directed the driver to a location, and then robbed the driver using a weapon while demanding cash, cell phones, and keys.

The Crown relied on the consistent testimony of the taxi drivers, onboard CCTV camera images, and a palm print found on one of the vehicles.

The court found the evidence of identity and participation compelling, rejecting the defence's arguments regarding the reliability of the CCTV images and the victims' observations.

The accused was found guilty as a party to both robberies.

Requête provisoire en droit de la famille portant sur des questions résiduelles après règlement partiel, notamment le droit du premier refus, les passeports des enfants, les voyages à l’étranger, le transport des enfants, l’accès à la résidence familiale pour récupérer des biens et la pension alimentaire pour enfants.

Le tribunal a ordonné à la mère de signer les documents nécessaires à l’obtention des passeports et de remettre les certificats de naissance, tout en lui laissant provisoirement la garde des passeports.

Le père a été autorisé à voyager avec les enfants en République Dominicaine, mais la question des voyages aux États-Unis a été laissée au juge du fond.

La demande relative au transport par les grands-parents paternels et la conjointe du père a été rejetée, tout comme la demande d’accès supplémentaire à la résidence familiale.

Le tribunal a aussi ordonné, sans préjudice, le paiement de 8 483 $ à titre de pension alimentaire impayée depuis février 2014 et de 569 $ par mois à compter du 1er juin 2015.

On a Rule 21 motion, the court considered whether a child protection agency owes a duty of care to foster parents whose foster home was closed after abuse allegations against their biological child.

Applying the plain and obvious standard and the duty of care framework discussed in Syl Apps, the court held that no such duty is recognized in Canadian law.

The court rejected an attempt to distinguish biological parents from foster parents and found that imposing a duty to foster parents would conflict with the statutory mandate to treat the child’s interests as paramount.

The adult plaintiffs' claim in negligence against the agency was struck and the action dismissed as against that defendant.

The applicant sought a declaration and rectification of title to reflect an express right of way over the respondent's servient lands that had been granted under the Registry Act but omitted from the servient parcel register when the lands were administratively converted to Land Titles.

The court held that the respondent acquired only LT Conversion Qualified title and was subject to the overriding interests preserved by s. 44(1) of the Land Titles Act, including easements, despite the omission from the servient register.

Relying on the statutory scheme and analogous authority concerning administrative conversion errors, the court found the right of way ought to have been noted and ordered rectification.

The order was made without prejudice to any future action alleging abandonment or extinguishment of the easement.

The defendants moved for summary judgment dismissing a fraudulent conveyance action arising from a transfer of farm property allegedly made to defeat unresolved family law support and proprietary claims, and the plaintiff cross-moved for leave to amend to plead constructive trust and tracing remedies.

The court held that an unresolved support claim under the Family Law Act provided standing as a 'creditor or other' under s. 2 of the Fraudulent Conveyances Act.

It further held that an FCA action seeking to set aside a conveyance of real property is an action to recover land governed by s. 4 of the Real Property Limitations Act, attracting a ten-year limitation period rather than the two-year period under the Limitations Act, 2002.

The action and proposed amendments were therefore not statute-barred.

The defendants' motion was dismissed and the plaintiff's cross-motion was granted.

The plaintiff sustained injuries in a motor vehicle collision with a train and commenced two separate actions.

She brought a motion to consolidate the two actions.

The defendant municipality and a third party opposed consolidation, arguing it would cause prejudice by exposing them to new crossclaims and affecting a limitation period defence.

The court declined to consolidate the actions due to the potential prejudice, but ordered that the two actions be tried together to avoid multiplicity of proceedings.

The accused brought a pre-trial application under s. 276 seeking to adduce evidence of two prior incidents of anal intercourse with the complainant in a sexual assault prosecution.

The defence argued the evidence was necessary to rebut the complainant’s preliminary inquiry statement that she had never done those things before and was therefore not comfortable.

The court held that, if the Crown did not elicit similar evidence at trial, the proposed evidence lost its articulated relevance and its admission would undermine the objectives of s. 276 by inviting discriminatory reasoning and unnecessary intrusion on dignity and privacy.

The application was dismissed, subject to the possibility of reconsideration if the evidentiary landscape changed at trial.

The Crown appealed acquittals on impaired operation and over-80 charges arising from a roadside stop involving swerving, indicia of alcohol consumption, and later breath readings of 140 mg.

The appeal court held that the trial judge reasonably found the respondent had clearly waived the right to counsel, and that the police-created delay in arranging an unnecessary duty counsel call meant the breath samples were not taken as soon as practicable under s. 258(1)(c)(ii) of the Criminal Code.

The certificate evidence was therefore properly excluded.

On the impaired operation count, the court held the acquittal was reasonably supported by the evidence, given the limited bad driving and minimal indicia of impairment.

In a receivership, the court gave advice and directions on competing claims to a travel lift between an owner-lessor and a secured lender with a general perfected security interest.

The court held that the lease was, in substance, a financing arrangement that secured payment for the equipment and therefore fell within s. 2(a) of the Personal Property Security Act.

Because the lessor failed to perfect its security interest, its claim was subordinate to the lender's perfected security interest under s. 20(1)(a)(i).

Any alleged pre-receivership termination of the lease, or contractual language purporting to end the debtor's rights on default, did not displace the prior-ranking secured creditor's rights under Part V of the PPSA.

On a motion to change a final family law order, the moving party sought to reduce child support on the basis of a substantial post-order decline in income and an equal sharing of parenting time.

The responding party alleged prior non-disclosure and sought lump sum retroactive support based on asserted corporate income and shareholder benefits.

The court accepted the accountant's evidence that certain large accounting entries were not income actually available for support purposes, found a genuine income decline beginning in 2013, and held that the parties exercised true 50/50 parenting time.

Applying s. 9 of the Federal Child Support Guidelines and the framework in Contino, the court varied support to set-off amounts effective January 1, 2014 and January 1, 2015.

The defendant moved to dismiss the plaintiff's 15-year-old personal injury action for delay and breach of court orders, primarily due to the plaintiff's failure to complete defence medical examinations.

The plaintiff, who had been self-represented for a significant period, refused to be examined by male doctors due to severe anxiety stemming from a past assault, and later had confrontational interactions with female examiners.

The Master found the delay was inordinate but excusable under the circumstances, and that the defendant suffered no actual prejudice.

The motion to dismiss was denied, but the Master imposed strict terms for a final defence medical examination, including that it be conducted by a female specialist and be audio recorded.

Sentencing following jury convictions for aggravated sexual assault, two counts of sexual assault with a weapon, assault causing bodily harm, four counts of assault, and threatening death against a former intimate partner during a prolonged abusive relationship.

The court held that denunciation and deterrence were paramount, emphasizing the degrading nature of the sexual violence, the abuse of a spouse or common law partner as a statutory aggravating factor, and the victim's enduring physical and psychological harm.

Finding little mitigation, the court imposed a global penitentiary sentence of five years.

Mandatory and ancillary orders for DNA, weapons prohibition, sex offender registration for life, and no communication with the victim during incarceration were also made.

The plaintiff sought judgment on two promissory notes arising from advances totalling $100,000.

The defendant admitted receiving the funds but argued they were an investment tied to the outcome of his dispute with the tax authorities and not yet payable.

The court held the promissory notes, drafted by the defendant's accountant and signed by the defendant, were the best evidence of the parties' agreement and established a promise to repay within 24 months.

Judgment was granted for $99,500, together with partial indemnity costs and pre-judgment interest at the default statutory rate after the initial two-year interest-free period.

In this family costs endorsement following a dispute over early retirement, child support, and spousal support, the court determined the appropriate costs award after both parties delivered offers to settle.

Although success was divided, the responding party on the original application was substantially more successful on the central issue of ongoing spousal support and obtained a result more favourable than his offer.

The court applied the Family Law Rules governing presumptive costs, settlement incentives, and reasonableness of quantum, while declining to award a blank cheque notwithstanding the potential full indemnity consequences of the offer.

A costs award of $45,000 was ordered against the applicant.

Sentencing decision following convictions for aggravated assault with a knife, assault of a child, unlawfully being in a dwelling house with intent to commit an indictable offence, and breach of recognizance.

The court applied the Gladue and Ipeelee principles to an Aboriginal offender with severe intergenerational trauma, childhood abuse, addiction, and an extensive criminal record, while emphasizing denunciation and deterrence under s. 718.01 because a young child was assaulted and exposed to the violence.

The court rejected the Crown's position that enhanced pre-sentence credit should be denied and applied Summers to award 1.5 to 1 credit for 388 days in remand.

A penitentiary sentence at the low end of the reasonable range was imposed, followed by lengthy probation and ancillary weapons and DNA orders.