SCJ 2015

The applicant brought a motion for the sale of the matrimonial home and a reduction in interim child and spousal support due to a material change in circumstances.

The respondent had failed to obtain the necessary financing to buy out the applicant's interest in the home as required by a previous consent order.

The court ordered the matrimonial home to be listed for sale forthwith.

The court also found a material change in circumstances due to the applicant's health issues and reduced income, and ordered a reduction in interim spousal and child support.

The defendant home inspector brought a motion to set aside a default judgment granted to the plaintiffs four years prior.

The plaintiffs had sued the defendant for professional negligence and breach of contract regarding a home inspection that failed to disclose severe water damage and rot.

The defendant failed to defend the action, citing severe health issues including a heart attack and rheumatoid arthritis.

Despite the significant delay and procedural non-compliance, the court found an arguable defence on the merits and no genuine prejudice to the plaintiffs' ability to prove their case.

The court exercised its discretion to set aside the default judgment, but imposed strict terms including payment of costs thrown away and payment into court as security.

The applicant municipality sought an order under s. 440 of the Municipal Act to restrain the respondent from using her property as a short-term rental, arguing it constituted an illegal 'Tourist Establishment' under the zoning by-law.

The respondent brought a counter-application seeking a declaration that her use was permitted or that the by-law was unacceptably vague and ultra vires.

The court found that the by-law did not clearly regulate short-term use in the Resort Residential zone and that, by attempting to regulate the identity of the users rather than the use of the land, it was ultra vires the Planning Act.

The municipality's application was dismissed and the by-law was declared of no force and effect to the extent it purported to regulate short-term rentals.

Following conviction after trial for sexual assault, the court imposed a custodial sentence for intercourse with a complainant who was intoxicated, intermittently conscious, and incapable of consenting.

The court treated the complainant's vulnerability and the fact of unprotected intercourse as aggravating, while recognizing the offender's lack of record, work history, and community support as mitigating.

Immigration consequences were considered but not permitted to distort proportionality.

A sentence of two years less a day, less Summers credit, followed by two years probation and multiple ancillary orders, was imposed.

The plaintiff sought leave under Part XXIII.1 of the Securities Act to advance a secondary market misrepresentation claim against a lender to an insolvent issuer following the issuer's collapse.

Applying the Supreme Court's Theratechnologies screening standard, the court held that the plaintiff failed to provide both a plausible interpretation of the promoter provisions and sufficient evidence showing a reasonable possibility of success at trial.

The court found that conventional banking, financial advisory, underwriting, and lending activities, even if essential to the transaction, did not amount to taking the initiative in founding, organizing, or substantially reorganizing the issuer's business.

The court also found insufficient evidence that the defendant knowingly influenced the release of the impugned disclosure documents.

Leave was denied.

The plaintiff was injured while exiting a taxi and sued her insurer for unidentified automobile coverage after failing to identify the driver.

The insurer brought a motion for summary judgment, arguing the plaintiff did not take reasonable steps to identify the driver and failed to provide proper notice.

The court granted the motion, finding that the driver's identity could have been ascertained with reasonable diligence through the taxi dispatch company's records, meaning the vehicle did not qualify as an 'unidentified automobile' under the policy.

The appellant appealed a Consent and Capacity Board decision finding him incapable of consenting to treatment under the Health Care Consent Act.

The appellant, who had been found NCR for First Degree Murder and diagnosed with paranoid schizophrenia, stopped taking his medication and his mental health deteriorated.

The Superior Court of Justice dismissed the appeal, finding the Board's decision reasonable and supported by evidence that the appellant lacked insight into his illness and could not appreciate the reasonably foreseeable consequences of refusing treatment.

The client brought a motion to oppose the confirmation of a Report and Certificate of Assessment regarding her former solicitor's account.

The client, who was self-represented at the assessment hearing, argued she was denied natural justice because the Hearings Officer did not allow her to make closing submissions.

The Superior Court of Justice agreed, finding that the Hearings Officer failed to assist the self-represented client and explicitly prevented her from making submissions on the ultimate issue, thereby violating the audi alteram partem rule.

The Report and Certificate of Assessment, along with related enforcement mechanisms, were set aside, and the matter was remitted for a new hearing before a different Hearings Officer.

The applicant sought a Rowbotham order staying a prosecution for importing opium until the Crown funded counsel for trial.

The court accepted that Legal Aid had been denied and that counsel was necessary for a fair trial given the seriousness of the charge, the legal issues, and the applicant's limited English.

However, the applicant failed to establish on a balance of probabilities that he could not afford private counsel or that he had exhausted other available means, including assistance from family or borrowing.

The application was dismissed without prejudice to a renewed application supported by fuller financial evidence.

The plaintiffs were successful at trial and sought costs.

Following the release of the trial judgment but before costs submissions were complete, the main defendant made an assignment in bankruptcy, triggering a stay of proceedings under s. 69(1) of the Bankruptcy and Insolvency Act.

The court held that it had jurisdiction to fix costs because the costs associated with a pre-bankruptcy judgment for a liquidated sum are regarded as an addition to the sum recovered.

The court awarded the plaintiffs $150,000 in costs on a substantial indemnity basis against the bankrupt defendant due to an unaccepted offer to settle and unfounded allegations of fraud.

The plaintiffs were also ordered to pay $5,661 in costs to a successful co-defendant, and were awarded $1,000 against another co-defendant for defending an exaggerated counterclaim.

The offender pleaded guilty to an unprovoked assault causing bodily harm against a stranger while on parole for manslaughter.

The Crown sought a sentence of 3 years and a long-term offender designation.

The court sentenced the offender to 3.5 years (reduced to 6 months with enhanced pre-sentence credit) and 3 years of probation.

The court dismissed the long-term offender application, finding that while the offender posed a risk, the Crown failed to prove beyond a reasonable doubt that there was a substantial risk of violent reoffending as required by the legislation.

The plaintiff subcontractor brought a motion for summary judgment against the defendant property owner and new general contractor for the tort of conversion.

After the original general contractor became insolvent, the plaintiff sought to remove its custom-built equipment from the construction site.

The defendants refused access, claiming the equipment had been paid for under the original contract.

The court found that title to the equipment never passed to the defendants and their refusal to allow the plaintiff to retrieve it constituted conversion.

Summary judgment was granted and damages were awarded based on the defendants' previous counter-offer to purchase the equipment.

The Crown appealed a stay of proceedings granted by the trial judge on charges of impaired driving and 'over 80'.

The trial judge had found that the institutional delay of 11.5 months exceeded the Morin guidelines and breached the respondent's right to a trial within a reasonable time under s. 11(b) of the Charter.

On appeal, the Superior Court found that the trial judge erred by characterizing neutral delay as institutional, reducing the actual institutional delay to 9 months, which falls within the guidelines.

The court also found the trial judge erred by failing to balance society's interest in a trial on the merits against the right to a trial within a reasonable time.

The appeal was allowed and a new trial ordered.

The defendants requested the dismissal of the plaintiff's statement of claim under Rule 2.1.01 as frivolous, vexatious, or an abuse of process.

The court found the claim appeared patently inappropriate, as it was based on failures to respond to settlement offers and sought relief the court could not award.

The court directed the registrar to issue a notice to the plaintiff to provide written submissions as to why the action should not be dismissed, and stayed the action pending the outcome.

The defendant brought a written request under Rule 2.1 to dismiss the plaintiff's professional negligence claim as frivolous, vexatious, or an abuse of process, arguing it was statute-barred and barred by res judicata.

The court dismissed the request, finding that the statement of claim stated clear and cogent claims for professional negligence.

The court noted that the application of the Limitations Act and doctrines of res judicata or issue estoppel are matters of evidence and not apparent on the face of the pleading.

Following the breakdown of a common-law relationship involving two children, the court determined outstanding support and property issues after parenting issues had been resolved by settlement.

The court fixed the parties' incomes, increased the respondent's share of section 7 expenses, and ordered retroactive child and spousal support adjustments after finding the respondent had underpaid support and failed to provide timely income disclosure.

Applying compensatory and non-compensatory support principles and the Spousal Support Advisory Guidelines, the court ordered ongoing indefinite spousal support at the mid-range.

On the property claim, the court found a joint family venture and unjust enrichment, and granted a monetary remedy rather than a proprietary one, together with transfer of the respondent's interest in the family vehicle.

The defendants brought a motion for security for costs in a construction lien action, alleging the plaintiff had insufficient assets.

The plaintiff did not assert impecuniosity or provide financial documents.

The court granted leave for the motion under s. 67(2) of the Construction Lien Act and ordered the plaintiff to pay $36,000 in security for costs in two installments, plus costs of the motion.

The self-represented moving party sought summary judgment recognizing and enforcing a Florida divorce-related equalization judgment in Ontario.

Applying the summary judgment framework and the test for recognition of foreign judgments, the court held there was a real and substantial connection between the litigation and Florida, the foreign judgment was final, and the responding party had participated in the Florida proceedings with counsel.

The responding party filed no proper responding record and did not establish any of the limited defences of fraud, denial of natural justice, or public policy.

The court found no genuine issue requiring a trial and ordered recognition and enforcement of the Florida judgment in Ontario.

Sentencing following conviction for attempted robbery committed in the course of a planned home invasion targeting a marijuana seller.

The court held that denunciation and general deterrence were the paramount objectives, but also considered the offender's youth, limited record, stable employment, family support, and rehabilitative progress.

Although the offender had spent approximately four years and eight months on restrictive bail terms, the court declined to grant equivalent credit because sentencing had been repeatedly adjourned by the defence and no effort had been made to vary the recognizance conditions.

A sentence of 20 months' incarceration, followed by 12 months' probation, was imposed, together with ancillary weapons and DNA orders.

This was a summary conviction sentence appeal arising from a child luring conviction under s. 172.1 of the Criminal Code based on communications with an undercover officer posing as a 14-year-old girl.

The appeal court held that the sentencing judge erred in principle by applying an indictable sentencing range in a case prosecuted summarily, and by treating the absence of a risk assessment report as an aggravating factor.

The court rejected the submission that the offence was victimless merely because no actual child existed, emphasizing the community harm inherent in online child luring.

After reassessing the aggravating and mitigating factors and reviewing comparable authorities, the court reduced the custodial sentence from 12 months to 8 months.