SCJ 2015

The defendant Ministry moved to strike a negligence claim arising from the death of a child at an unlicensed private-home daycare after the Ministry had received multiple complaints about excessive numbers of children and had sent a warning letter but allegedly failed to follow up.

The court held that on a motion to strike it was required to accept the pleaded facts as true and determine only whether it was plain and obvious the claim could not succeed.

Applying the duty of care framework and authorities on proximity in claims against public actors, the court found it was arguable that the pleaded facts could establish proximity and foreseeability sufficient to support a private law duty of care.

The claim was novel, but the uncertainties could not be resolved at the pleadings stage and required a full record at trial.

The moving defendant sought to bifurcate the action so that the plaintiff's successor liability claim against it would be determined before the negligence and related claims against the remaining defendants.

Applying the governing bifurcation principles, the court held that bifurcation is an exceptional remedy available only in the clearest cases where the preponderance of factors favours severance and the proceeding will more likely than not be resolved justly, expeditiously, and inexpensively.

The court found the successor liability issue was not simple, the case was not extraordinary merely because it involved a novel American doctrine, and any clear advantage or costs savings were largely limited to the moving defendant.

The proposed procedure would also create delay, multiplicity of proceedings, and prejudice to the plaintiff.

The motion was dismissed, with costs to the plaintiff on a partial indemnity basis.

Following success on a summary judgment motion and dismissal of the plaintiffs' cross-motion, the defendant sought costs primarily on a substantial indemnity basis.

The court accepted the defendant's submissions that the litigation involved serious unproven allegations and that the contractual documents supported recovery of legal costs on a solicitor and own client basis, while declining to rely on one incomplete evidentiary submission regarding the plaintiffs' conduct.

Applying the Rule 57.01 factors and the governing reasonableness and fairness principles, the court awarded the full substantial indemnity amount requested.

This was a costs decision following dismissal of an application for partition and sale of jointly held property, with a prior order requiring the respondents to pay the applicant $13,000 from any future sale or refinancing.

The applicant sought costs up to the date of the respondents' settlement offer, but the court held the respondents were wholly successful on the real issue: preserving the property's equity and restraining enforcement of bare legal title.

Applying the fair and reasonable costs principles under s. 131 of the Courts of Justice Act and Rule 57.01, the court fixed the respondents' costs at $13,000 on a partial indemnity basis.

The court set that amount off against the applicant's prior $13,000 recovery so that the formal judgment would simply declare the respondents' ownership and dismiss the applicant's claims.

Following a jury conviction for sexual assault and choking arising from a violent attack by a former intimate partner in the complainant's home, the court imposed a global custodial sentence of five years.

The court treated denunciation and deterrence as paramount, found the sexual assault especially violent, and concluded the offender posed a risk of reoffending with little demonstrated insight or rehabilitative motivation.

Applying the totality principle, the court held the choking was part and parcel of the sexual assault and ordered concurrent sentences.

The court also determined credit for multiple periods of presentence custody and house arrest, resulting in total credit of 1362 days, and imposed ancillary DNA, SOIRA, weapons prohibition, and no-contact orders.

The plaintiff sought summary judgment against a bank for conversion after sale proceeds from her home were used to obtain a bank draft payable to the bank and deposit it into a third party's line of credit.

The bank cross-moved for summary judgment dismissing the action.

Applying the banking conversion principles and the summary judgment framework, the court held the bank was entitled to accept a draft payable to itself and apply it to a debt owed by its customer.

Any fraud in inducing the plaintiff to obtain the draft may have supported claims against other participants, but not against the bank.

The plaintiff's motion was dismissed, the bank's motion was granted, and the action against the bank was dismissed.

The applicant, charged with possession of cocaine for the purpose of trafficking, brought a pre-trial application seeking a stay of proceedings under s. 24(1) of the Charter.

He alleged that his s. 7 rights were infringed due to late, incomplete, and inadequate disclosure by the Crown, and that the Crown's conduct amounted to an abuse of process.

The court found no evidence of missing or undisclosed relevant documents and concluded that the late disclosure was remedied by an adjournment.

The court held there was no trial unfairness or abuse of process, and dismissed the application.

Following a jury verdict awarding the plaintiff $1,837,500 for injuries sustained in a motor vehicle accident, the defendants sought to deduct Statutory Accident Benefits (SABs) previously settled by the plaintiff.

The court held that the defendants met the strict burden of proving subject-matter and temporal matching between the jury's future care awards and the SABs settlement categories.

However, the court ruled that the deductible SABs amounts must be reduced by a pro-rata share of the legal fees the plaintiff incurred to obtain the SABs settlement, preventing the tortfeasors from unfairly benefiting from the plaintiff's expense.

The applicant sought to set aside a separation agreement on grounds of duress, inadequate disclosure, and lack of independent legal advice, and sought greater property equalization, spousal support, and increased child support.

The court found the applicant knew the family business finances, had been advised of her disclosure and support rights, received independent legal advice, and was not under duress when she signed.

Applying s. 56(4) of the Family Law Act and the Miglin framework, the court upheld the agreement as fair, valid, and enforceable, except for child support.

The court imputed higher income to the respondent based on business-paid personal expenses and gross-up principles, varied child support retroactively and prospectively, and otherwise dismissed the applicant's claims.

The respondent/payor moved to set aside a warrant of committal issued after persistent non-payment of child and spousal support and repeated non-compliance with disclosure and enforcement orders.

The court held that rule 19.08 of the Rules of Civil Procedure could apply to a motion to set aside a warrant, but only within the limited scope permitted by s. 41(15) of the Family Responsibility and Support Arrears Enforcement Act, requiring evidence of a material change in circumstances affecting ability to pay.

Applying the established three-part test for setting aside default orders, the court found the motion was brought promptly but the payor had no reasonable explanation for his non-attendance and no arguable case on the merits.

There was no evidence of a material change, no current financial disclosure, and no payment plan.

The motion was dismissed.

The plaintiff sought a declaration arising from a 50/50 partnership agreement to purchase an investment property.

The defendant argued that the plaintiff had agreed to withdraw in exchange for the return of his share of the deposit.

The court rejected that position on the evidence, finding it improbable that the plaintiff would abandon a lucrative venture and concluding that the surrounding circumstances supported the plaintiff's account.

The court granted a declaration that the plaintiff held a 50 percent ownership interest in the property, subject to payment of an amount to be determined by the local Referee, including assessment of purchase and carrying costs.

On a voir dire during a robbery trial, the court determined whether a police statement made by the accused was voluntary under the common law confessions rule.

The defence argued the statement was involuntary due to inducements, references to potential Children’s Aid Society involvement, and allegedly oppressive conditions including cold temperature and lack of medication for diabetes.

The court assessed the totality of the circumstances, including the accused’s demeanor, the recorded interview, and police testimony.

While acknowledging some inducements and pressure during the interview, the court found the accused retained an operating mind and was not subjected to oppressive conditions sufficient to overbear her will.

The Crown proved voluntariness beyond a reasonable doubt and the statement was admitted at trial.

Following summary judgment concerning sham property transfers designed to defeat creditors, the successful plaintiff sought full indemnity costs against two defendants based on reprehensible conduct in the litigation and underlying fraudulent dealings.

The court held this was a rare case where the successful party should bear none of the expense of pursuing justice, given the fabrication of a defence, abusive conduct, stalling, and untrue evidence.

Full indemnity costs of $121,523.99 inclusive of disbursements and taxes were awarded jointly and severally against the two defendants who acted in concert.

The court further held that s. 45(1) of the Bankruptcy and Insolvency Act applied to one defendant’s liability for costs in relation to the properties at issue.

In this amended preliminary costs decision arising from a property title and access dispute, the plaintiffs sought a substantial costs award after being largely successful at trial and defeating most of the defendant's counterclaim.

The court held that the successful litigant principle, proportionality, the complexity and importance of the issues, and the limited impact of withdrawn alternative arguments supported an award of costs.

The court rejected the responding party's position that no costs should be awarded and fixed the appropriate scale as partial indemnity.

The quantum was deferred to an assessment after production of dockets and proof of disputed disbursements.

The insurer moved for summary judgment dismissing the plaintiff's claim under unidentified automobile coverage arising from a multi-vehicle collision involving an alleged unknown driver.

The court applied the Rule 20 framework and held the evidentiary record was insufficient to determine that one of the identified defendants would necessarily be at least 1 percent liable, particularly where the insurer relied on a deficient affidavit and the other defendants expressly denied liability.

The court found a genuine issue requiring a trial and declined to use the enhanced fact-finding powers.

The court also rejected the insurer's alternative proposals to abstain from mandatory litigation steps or to be dismissed without prejudice, and awarded the plaintiff costs.

In an uncontested family trial after the respondent's answer was struck for repeated disclosure breaches, the court granted a divorce, sole custody, supervised access at the applicant's discretion, and exclusive possession of the matrimonial home and contents.

The court found the respondent's non-disclosure and conduct egregious, and accepted evidence of untreated substance abuse as relevant to parenting and access.

Final determinations on equalization, child support, spousal support, and some property issues were adjourned because the evidentiary record remained incomplete, but interim child and spousal support were ordered based on the existing financial record.

The respondent's interest in the matrimonial home was ordered as interim security for support, and the applicant received full indemnity costs.

The appellant appealed an impaired driving conviction, alleging legal error in the dismissal of a Charter s. 11(b) application based on trial delay.

The court held that delay caused by the unexplained absence of an interpreter was properly treated as neutral rather than institutional, because the cause of the absence was unknown and attribution required an evidentiary basis.

The court also held that delay following outstanding expert-related disclosure was not Crown-caused, since the Crown had not received the material and the trial would have required additional dates in any event due to an inadequate time estimate.

Applying the Morin framework, the court found no unreasonable delay and dismissed the summary conviction appeal.

On a Rule 2.1 screening request brought by the defendants, the court held that a civil action alleging negligent corruption, abuse of authority, constitutional breaches, and police failure to investigate appeared on its face to be frivolous, vexatious, or an abuse of process.

The pleaded complaints all arose from the handling of another court proceeding and were required to be addressed within that proceeding rather than through a fresh action.

The court further noted there is no private right of action against police for failing to investigate a particular crime.

Notice under Form 2.1A was directed to issue, the plaintiff was invited to make written submissions, and the action was stayed pending the written hearing.

On a registrar-referred Rule 2.1 review, the court considered a claim against the Crown for malicious prosecution arising from provincial offence charges withdrawn in 2000.

The record disclosed multiple prior proceedings arising from the same underlying prosecution, including dismissals based on res judicata and appellate affirmance.

The court held that the pleading appeared on its face to be an abuse of process and directed that notice issue inviting written submissions on dismissal.

Pending that process, the action was stayed under s. 106 of the Courts of Justice Act and no further filings were permitted except the responding party's written submissions.

The accused brought an application to stay robbery charges for alleged breach of s. 11(b) of the Charter, arguing that institutional and Crown delay, aggravated by disclosure failures, exceeded the applicable Morin guidelines.

The court accepted that disclosure was poorly handled and that the accused suffered real prejudice from lengthy pretrial custody, including segregation and administrative detention.

However, after allocating delay among intake, inherent case requirements, defence conduct, Crown conduct, and institutional limits, the court held that total Crown and institutional delay was about 9.6 months across both levels of court and therefore remained within the Morin guidelines.

Balancing all factors, the court found the overall delay reasonable and declined to stay the charge.