SCJ 2015

The moving defendants sought to strike the statement of claim against them under Rule 21.01(1)(b) in an action arising from unpaid engineering invoices relating to a power generation project.

The plaintiff advanced unjust enrichment against parties that had contracted with an intermediary defendant, but the court held the pleaded contracts constituted valid juristic reasons for the alleged enrichment.

The court rejected the submission that breach of contract would make the enrichment manifestly unjust for pleading purposes and found no basis to add a new allegation of contractual invalidity.

The claim against the moving defendants was struck without leave to amend, with partial indemnity costs.

The court sentenced the accused for conspiracy to traffic firearms, trafficking firearms, and possession offences involving 13 handguns and ammunition acquired through a licensed purchaser.

Emphasizing denunciation, deterrence, public protection, and the totality principle, the court found the accused was a central actor in a commercial firearm trafficking enterprise motivated by profit.

The court treated the number of unrecovered handguns, the accused's role in directing purchases and distribution, and the risk to the community as significant aggravating factors, while giving limited mitigating weight to youth, family support, and rehabilitative prospects.

A total sentence of 9 years was imposed, with concurrent terms, 2.5 years' credit for pre-sentence custody, a lifetime firearms prohibition, and a DNA order.

On competing motions to vary an indefinite spousal support order, the court held the payor failed to establish a material change in circumstances warranting termination, where the recipient's disabling health conditions existed at the time of the original order and continued to preclude meaningful employment.

The court rejected the submission that the recipient had a duty to become self-sufficient and found the original order did not impose such an expectation.

The recipient, however, established a material change based on the termination of child support, inflation, and the payor's substantial income increase from approximately $79,000 to over $136,000.

Applying the Divorce Act variation framework and consulting the Spousal Support Advisory Guidelines, the court increased support by $600 per month to $2,100, retroactive to September 1, 2013.

The applicants sought permanent injunctive relief arising from extensive dumping of fill on rural property without the required permits and contrary to municipal by-laws, the Building Code Act, planning controls, and Oak Ridges Moraine legislation.

The responding parties argued the material was only topsoil intended for a future tree nursery and said the activity was protected as an agricultural use.

The court held the evidence established massive unauthorized fill placement, substantial alteration of grade and drainage, and conduct far more akin to a commercial fill operation than a normal farming practice.

The asserted future farming use and business licence did not excuse non-compliance, and no application had been made to the Normal Farm Practice Protection Board.

Permanent injunctive and related relief were granted.

The applicant challenged the retrospective application of the 1997 and 2011 amendments to the faint hope provisions governing reduction of parole ineligibility for murder.

The court held that the proper analytical framework was the retrospective punishment analysis from Whaling, not the Rodgers test for discrete sanctions.

It concluded that the amendments did not increase punishment, did not thwart any settled expectation of liberty, and merely altered the procedure by which the applicant could seek a chance at earlier parole.

The constitutional application was dismissed, and the parole ineligibility reduction application was directed to proceed under s. 745.61 as amended in 2011.

The accused was tried on charges of criminal negligence causing bodily harm and unlawfully causing bodily harm after his off-leash dog bit an 11-year-old child in a park rink.

The court held the Crown failed to prove that taking the dog off leash in the enclosed rink, in the surrounding circumstances, constituted a marked and substantial departure from the conduct of a reasonably prudent person.

The evidence did not establish prior aggressive behaviour or facts supporting objective foreseeability of bodily harm.

The court also found the alleged breach of the Dog Owner's Liability Act was not shown to be objectively dangerous on these facts.

Acquittals were entered on both counts.

In a family property dispute, the moving party pursued remaining disclosure requests after an earlier motion endorsement deferred certain items to a trial management conference.

The court held that the outstanding requests were either expanded beyond the original requests, duplicative of requests already dismissed, unnecessary in light of prior answers, or effectively addressed through questioning and trial management processes.

The remaining disclosure motion was dismissed in full.

Costs were ordered to the responding party on a partial indemnity basis, with quantum to be fixed by the trial judge.

In this costs decision following a motion to set aside a default judgment, the plaintiff sought costs of the motion and costs thrown away after the judgment was partially set aside as against the individual defendants but left in place against the corporate defendants.

The court held that, although success on the underlying motion was divided, the defendants' deliberate failure to participate in the proceeding necessitated the motion and justified an award of costs to the plaintiff under the principle that the price of a granted indulgence is payment of the opposing party's costs.

Solicitor-client costs were refused because the plaintiff's offer to settle included terms not achieved on the motion.

Costs of the motion were fixed at $27,866.65 inclusive, and costs thrown away were fixed at $18,349.72, payable within 30 days.

On a mid-trial application for a directed verdict, a self-represented accused sought acquittal on bid-rigging and conspiracy counts arising from a multi-accused prosecution concerning a Transport Canada RFP.

Applying the directed verdict standard, the court held that the Crown's case against the moving party rested on thin direct evidence and circumstantial inferences that were not reasonably available on the whole of the record.

The evidence established only knowledge of and limited participation in his company's own joint venture proposal, which was not illegal.

There was no evidence capable of supporting membership in the larger alleged three-bid scheme or conspiracy.

A directed verdict of acquittal was entered on both counts.

This was a costs endorsement following a family law proceeding involving divorce, support, property division, and recognition of a prior foreign divorce.

The successful party in the underlying proceeding sought full indemnity costs of $125,090 under r. 24 of the Family Law Rules.

The court held that the presumption in favour of costs applied, but reduced the award drastically after considering the opposing party’s health, financial hardship, limited language skills, unemployment, and dependency on social assistance.

Costs were fixed at $1,000 inclusive of HST, payable within eight months.

The defendant dentist brought a summary judgment motion to dismiss a negligence action arising from allegedly faulty bridgework as statute barred under the Limitations Act, 2002.

The court held that the plaintiff knew or ought to have known the material facts underlying the claim by late May or early June 2011, when replacement treatment was recommended, reimbursement was demanded, and a regulatory complaint was threatened.

The plaintiff's later reliance on the professional regulator's decision did not postpone discoverability because knowledge of legal negligence is not required to start the limitation period.

Summary judgment was granted and the action was dismissed as out of time.

The applicant, charged with drug and firearms offences, brought a Charter motion to exclude evidence seized from his residence and vehicle.

The court initially denied standing regarding the residence but allowed the applicant to reopen evidence, ultimately finding he had a reasonable expectation of privacy.

The court found the Information to Obtain (ITO) the search warrant for the residence lacked sufficient corroboration, resulting in a section 8 Charter breach.

However, the court dismissed the section 7, 8, and 9 claims regarding the vehicle search and arrest, finding them lawful.

Applying the Grant framework under section 24(2), the court admitted the evidence from the residence, concluding the police acted in good faith and the highly reliable evidence was essential to the truth-seeking function of the trial.

Summary conviction appeal from an impaired driving conviction under s. 253(1)(b) of the Criminal Code.

The appellant argued the investigating officer arbitrarily detained him and unlawfully searched him when the officer stopped his vehicle while looking for another individual suspected of trespass and driving under suspension.

The appeal court held the officer had articulable cause and reasonable grounds to detain and question the driver based on the specific location, vehicle description, and surrounding circumstances, and that the subsequent arrest for impaired driving was supported by reasonable and probable grounds.

No breach of ss. 8 or 9 of the Charter was established, and the evidence would not have been excluded under s. 24(2) in any event.

In a criminal trial arising from a drug-facilitated sexual assault, the court determined the admissibility of statements the accused made to police about his prescription medications.

Applying the contextual voluntariness framework, the court held the statements were made freely, without threats, promises, oppression, trickery, or any overbearing of the accused's operating mind, and were instead part of his effort to obtain early release.

The court further held that routine health and safety questions asked at booking did not infringe s. 10(b) of the Charter.

In any event, the court concluded that the evidence would have been admitted under s. 24(2) had a Charter breach been established.

On a summary judgment motion arising from allegations that a business competitor masterminded a plot to hire a hitman, the court held that the testimony of the alleged intermediary was necessary to permit a fair and just determination on the merits.

Applying the summary judgment framework, the court concluded that the key witness's testimony and credibility were major issues and that the motion should proceed only with viva voce evidence.

By consent of counsel, the court ordered the witness to attend the hearing for cross-examination and any re-examination, with his affidavit to stand as examination-in-chief.

The motion argument was to proceed thereafter.

The moving defendant sought to set aside a default judgment arising from a restaurant renovation dispute involving alleged breach of contract.

The court accepted that the moving party had explained the original default and had advanced a triable defence, but found that he did not bring the motion promptly and failed to satisfactorily explain extensive delay and repeated non-compliance with court orders.

Applying the established three-part framework for setting aside default judgment, the court held that granting relief would not be in the interests of the administration of justice.

The motion was dismissed with partial indemnity costs to the plaintiff.

The court sentenced the accused for an unprovoked workplace aggravated assault in which he struck a co-worker in the face and neck with a screw driver, causing a permanent facial scar.

The defence argued for an intermittent sentence below six months because a custodial term of six months or more could trigger deportation consequences for a permanent resident.

Applying proportionality, parity, and the collateral-consequences approach, the court held that immigration consequences could be considered but could not distort a fit sentence for a serious personal injury offence.

The court imposed 12 months' imprisonment, 24 months' probation, a weapons prohibition, and a DNA order, and stayed the assault with a weapon count under the Kienapple principle.

The court screened a self-represented statement of claim under Rule 2.1.01 and dismissed it as frivolous and vexatious.

The pleading advanced stale allegations arising in British Columbia with no Ontario connection, and any such causes of action were limitation-barred.

The court also held that police do not owe a private law duty of care to investigate particular alleged crimes at the request of a complainant.

The action was dismissed with costs, with any costs to be assessed if demanded.

In a child protection proceeding, the maternal grandmother moved late in the process to be added as a party and advance a custody proposal for the children.

Applying the established discretionary factors for adding parties in child protection matters, the court held the motion materials were late, weak, and insufficiently responsive to the Society’s serious concerns about the proposed placement.

The court found adding the proposed party would not be shown to be in the children’s best interests, would inevitably prolong the proceeding, and was unnecessary because her proposed involvement could be advanced through the mother and by witness evidence.

The motion to add the maternal grandmother as a party was dismissed, the Society’s summary judgment motion was scheduled, and the existing order continued.

The defendants brought a jurisdiction motion seeking to stay an Ontario action arising from a cross-border commercial relationship involving a Nigerian oil and gas opportunity.

The court held that Ontario had jurisdiction simpliciter because the foundational agreements were made in Ontario and one agreement contained an Ontario governing law and attornment clause.

Applying the forum selection and forum non conveniens principles, the court found no rebuttal of the presumptive connecting factor and held that Nigeria was not clearly the more appropriate forum.

The motion to stay was dismissed.