SCJ 2015

The appellant appealed a summary conviction for impaired care or control arising from a single-vehicle collision where he was found passed out partly in the driver's seat with keys accessible in the console.

He argued that the trial judge erred in the use of circumstantial evidence, misapplied the W.(D.) framework to the defence witness, and reversed the burden of proof.

The appeal court held that the trial judge properly rejected the statutory presumption yet correctly proceeded to assess de facto care or control on the evidence as a whole.

Applying the deferential summary conviction appeal standard, the court found the factual inferences were reasonably open to the trial judge and upheld the conviction.

A contractor commenced a $205 million action against a public transit authority arising from a major subway expansion contract.

The authority moved under Rule 21.01(1)(a) for determination of a contractual clause prohibiting litigation until the contractor’s final invoice had been processed, and sought a stay under s. 106 of the Courts of Justice Act.

The court held that interpretation of the clause was a pure question of contractual interpretation suitable for determination on a Rule 21 motion.

The provision was enforceable between sophisticated commercial parties and clearly prohibited commencing an action before the contractual triggering event.

As the triggering event had not yet occurred, the action was stayed pending its occurrence.

The applicant sought to quash a common law peace bond imposed by a provincial court judge during a preliminary inquiry.

After the complainant recanted her allegations, the Crown conceded there was insufficient evidence for committal.

The judge, on his own motion, initiated a peace bond hearing based on the complainant's testimony regarding a history of domestic violence.

The applicant consented to the peace bond and was subsequently discharged on the criminal charges.

On review, the Superior Court held that a provincial court judge, acting in their capacity as a justice of the peace, retains the inherent common law jurisdiction to impose a peace bond in a separate proceeding, regardless of the statutory limitations of a preliminary inquiry.

The application was dismissed.

The applicant commercial tenant sought relief from forfeiture and an injunction against eviction, arguing the landlord orally agreed to defer rent payments until the tenant resolved third-party litigation.

The respondent landlord denied the agreement and relied on a subsequent written settlement agreement negotiated by counsel, which the tenant breached.

The court found no indefinite oral agreement to defer rent and held that the written settlement agreement, despite missing a word, was unambiguous in context and binding.

The court also held the tenant was bound by his solicitor's ostensible authority.

The application was dismissed and the interim injunction dissolved.

Following a family trial, the court determined unresolved issues of child support, special and extraordinary expenses, equalization, spousal support, and divorce after custody and residence issues were resolved on consent.

The court declined to impute income to the respondent spouse, finding no evidence of intentional underemployment, and recalculated retroactive child support using actual annual incomes, resulting in an overpayment owed to the applicant spouse.

Most disputed claimed child-related expenses were rejected as not qualifying under s. 7 of the Child Support Guidelines, and no reimbursement of past s. 7 expenses was ordered.

The court rejected the applicant spouse’s attempt to recoup post-separation debt payments through equalization, but awarded the respondent spouse compensatory and non-compensatory time-limited mid-range spousal support, together with arrears.

A divorce was granted, with later addendum and corrigendum clarifying child support wording and correcting the pension transfer amount.

The parents appealed an Ontario Court of Justice decision finding their child in need of protection and making the child a Crown ward with no access for the purpose of adoption.

The parents argued the trial judge misapprehended the evidence and that they signed documents under duress from their counsel.

The Superior Court of Justice dismissed the appeal, finding that the trial judge made no palpable and overriding errors, properly applied the criteria under the Child and Family Services Act, and that there was no evidence to support the claims of duress or incompetent counsel.

The Crown applied during a voir dire to admit crime scene and autopsy photographs of the deceased in a first-degree murder trial.

The accused argued the photographs were gratuitous, inflammatory, and highly prejudicial.

The court found the photographs were highly probative to illustrate the forensic pathologist's opinions, corroborate testimony, and rebut potential defences such as self-defence or a third-party suspect.

The court concluded the probative value outweighed any prejudicial effect and granted the application to admit the photographs.

In a family support proceeding concerning retroactive child support and post-secondary expenses for adult children, the court treated the matter as a corollary relief application under the Divorce Act.

Applying the appellate approach to s. 3(2) of the Federal Child Support Guidelines, the court held that full table support was inappropriate during academic terms when the children lived away from home, but remained payable during summer periods when they resided with the respondent.

The court quantified each child's educational expenses, required substantial contributions from the children through earnings, grants, bursaries, and a portion of OSAP loans, and rejected several claimed section 7 items as not extraordinary or inadequately proven.

After setting off the applicant's overpayment of table support against proven post-secondary contributions, the court ordered a lump-sum child support payment of $7,300, with pre-judgment interest and costs left for possible further determination.

The defendant broadcaster moved for summary judgment dismissing a defamation and negligence action arising from an erroneous television news report that described an assault as sexual.

The court held that, in the particular circumstances, the plaintiff's notice of action was sufficiently particularized to satisfy s. 5(1) of the Libel and Slander Act.

Although the notice was served approximately three weeks outside the six-week period, the delay was found reasonable given the plaintiff's solitary confinement, restricted access, and diligence in attempting to retain counsel.

The motion was dismissed because the plaintiff was entitled to pursue the claim and genuine issues required a trial, with costs awarded to the plaintiff.

The defendant, a California corporation that dissolved after allegedly supplying a defective generator but before the plaintiff commenced its action, brought a motion to dismiss the action against it for lack of legal capacity to be sued in Ontario.

The court applied conflict of laws principles, determining that while capacity to be sued is procedural, the legal status of a foreign entity is a substantive issue governed by the law of its place of incorporation.

Because the California Corporations Code permits dissolved corporations to continue to exist for the purpose of defending actions, the court found the defendant had the legal capacity to be sued in Ontario and dismissed the motion.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's claim for unidentified motorist coverage.

The plaintiff alleged she was involved in a hit-and-run accident but failed to report it to the police or the insurer within the statutory timeframes, relying on alleged advice from an insurance broker's employee.

The court found the plaintiff failed to comply with the strict reporting requirements under the Insurance Act and the Uninsured Automobile Coverage schedule.

Applying the test for relief from forfeiture, the court held the plaintiff's conduct was unreasonable and the insurer suffered actual and potential prejudice by losing the opportunity to investigate.

The motion for summary judgment was granted and the action dismissed.

The plaintiff brought a motion for summary judgment against his wife, who had been noted in default, for funds she allegedly diverted and stole from him.

The court granted summary judgment for $466,420.22, finding that the debt would survive bankruptcy due to fraud.

However, the court dismissed the plaintiff's requests for a vesting order over the defendant's personal property and for an order redirecting hypothetical future settlement funds, as the legal requirements for such orders were not met.

In a family dispute over vacant land held in common, the applicant sought an order for sale under the Partition Act after the co-owners could not agree on disposition.

The principal opposing respondents argued for dismissal or, alternatively, partition rather than sale.

The court held that co-owners have a prima facie right to partition or sale, subject only to limited discretion where malice, oppression, vexatious intent, or equivalent hardship is shown.

Because the evidence indicated further partition might be foreclosed by municipal by-laws and prior severances, sale was more advantageous to the parties.

A reference was ordered to a Master to value the lands and supervise the sale, with no costs awarded.

The plaintiffs moved for leave to amend their statement of claim in an action against former accountants arising from allegedly negligent accounting and tax advice.

The responding defendant argued that certain amendments advanced new causes of action for breach of contract and breach of fiduciary duty after expiry of the limitation period, and that other amendments withdrew admissions requiring leave under Rule 51.05.

The court held that the proposed amendments merely particularized allegations already pleaded and added facts supporting the original right of action, rather than asserting new causes of action.

The court also held that the impugned pleadings did not constitute admissions within Rule 51.05.

Leave to amend was granted.

The testator died leaving property in Ontario and Germany.

His widow, who resided in Germany, moved for an extension of time to elect an equalization of net family property under the Family Law Act.

The trustee of the Ontario estate moved for directions.

The court dismissed the widow's motion, finding no apparent grounds for relief because section 15 of the Family Law Act dictates that spousal property rights are governed by the law of the last common habitual residence.

Since the spouses last lived together in Germany, German law applied, precluding a claim under section 5 of the Ontario Act.

The Baker defendants brought a motion to set aside a noting in default against them, and Sage Electric Limited brought a cross-motion for default judgment.

The Baker defendants had been noted in default after failing to comply with an order removing their former counsel of record.

The court found that the order removing counsel was irregular because it substituted the mandatory word 'shall' for the permissive word 'may' found in Rule 15.04, improperly removing the court's discretion.

The court set aside the noting in default and dismissed Sage's cross-motion for default judgment as premature.

A class member challenged a court-approved Distribution Protocol in a class action settlement, alleging it contravened the Ontario Human Rights Code by requiring family members to pool their claims for minimum compensation, thereby discriminating on the basis of family and marital status.

The court held that the Human Rights Code does not apply to court orders or distribution schemes under the Class Proceedings Act.

Furthermore, even if the Code applied, the pooling requirement did not constitute discrimination, as it was a justified mechanism to encourage claims while preventing windfall overcompensation.

A bankruptcy trustee brought a motion under s. 163(1) of the Bankruptcy and Insolvency Act seeking to compel former directors and an officer of the bankrupt entities to attend examinations under oath and produce documents concerning the bankrupts’ affairs.

The respondents argued that because the trustee had already commenced a civil action relating to a dividend transaction, the trustee could not rely on the statutory examination power absent exceptional circumstances and should instead obtain information through discovery in the action.

The court held that the trustee’s statutory examination powers are broad and are not limited to exceptional circumstances where litigation has commenced.

The court found the examinations were necessary for the proper administration of the bankrupt estate and not merely a step in the civil action.

The respondents were ordered to attend examinations and produce documents, with portions relevant to the civil action to count as discoveries to avoid duplication.

The defendant was entirely successful on a motion to compel the production of a bishop for examination for discovery and sought costs.

The plaintiff argued the defendant should be denied costs because its counsel failed to disclose a recent, allegedly similar decision by another judge.

The court held that the undisclosed decision dealt with different, narrower issues and was not binding, so the failure to disclose it did not deprive the defendant of costs.

Finding no reprehensible conduct by the plaintiff, the court awarded the defendant partial indemnity costs fixed at $15,000.

The mother appealed a trial decision ordering that her child be made a Crown ward without access for the purpose of adoption.

She argued the trial judge over-relied on a parenting capacity assessment and erred by not admitting a psychiatric report.

She also sought to introduce fresh evidence on appeal, including notes regarding her interactions with her second child and a new psychiatric report.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error by the trial judge.

The court held that the trial judge properly considered all evidence, correctly excluded the improperly tendered psychiatric report, and that the fresh evidence, while admissible, would not have altered the outcome given the mother's cognitive limitations and lack of support.