SCJ 2015

The accused was charged with possessing, accessing, and making child pornography available through a peer-to-peer file sharing program.

The court found the accused's trial denial of knowledge not credible in light of his videotaped police statement, the organization and descriptive file names of the images, recent access data, and expert forensic evidence showing the files were accessible through Bearshare.

The defence theory that the images came from scavenged hard drives or malware was rejected because both experts found no evidence of external unauthorized downloading and the files were logically organized by the user.

Applying the governing criminal burden and credibility framework, the court found knowledge, access, and making available proved beyond a reasonable doubt.

The defendant moved for security for costs against multiple corporate plaintiffs under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The court held the moving party failed to provide sufficient evidence establishing good reason to believe the plaintiffs lacked assets in Ontario to satisfy a costs award.

In any event, the responding parties established they had a beneficial interest in a mortgage with residual value available to respond to any costs order.

The motion was dismissed.

The successful plaintiffs received partial indemnity costs, but their request for substantial indemnity costs based on an offer to settle was rejected for lack of genuine compromise.

In an interpleader proceeding concerning completed criminal bail, the court determined entitlement to $20,000 deposited as cash bail for a non-resident accused.

The evidence established that the funds originated from the accused’s employer and were paid to counsel in trust for the accused’s benefit, then deposited with the criminal court for the limited purpose of securing compliance with the recognizance.

Applying trust principles, the court held that any assignment of the bail monies to the surety operated only during the life of the recognizance and did not confer a continuing beneficial interest after the criminal proceeding concluded without breach.

Once the bail purpose ended, the express trust was exhausted and the funds reverted to the settlor through counsel in trust.

Aftercare was added as a respondent, the funds were ordered paid to Gilmour Barristers in trust for remittance to Aftercare, and no costs were ordered.

The plaintiff mortgagees moved for summary judgment arising from a chattel mortgage over a mobile home after the defendants defaulted on monthly payments.

The court held there was no genuine issue requiring a trial on the plaintiffs' entitlement to possession of the collateral and on their entitlement in principle to payment of principal, interest, and insurance amounts authorized by the mortgage.

However, material factual disputes remained regarding the number of missed payments, the date from which interest was payable on certain defaults, the amount of insurance premiums paid, and whether lot rental payments were recoverable at all.

A trial was therefore required on those disputed monetary issues.

Decision on costs following a municipal dispute in which the respondent municipality had largely succeeded but the applicants achieved limited success on one billing issue.

The court held the success was shared and accepted that ambiguity in the municipal by-law, including the undefined term for a dwelling unit and an erroneous French equivalent, contributed to the need for judicial interpretation.

Applying the relevant costs factors, the court declined to award the full amount claimed and instead fixed costs at 2,000 $ plus HST on a partial indemnity basis.

Following a five-day family trial involving custody, residence, parenting time, equalization, and support-related issues, the successful party sought substantial costs and alternatively relied on an offer to settle for enhanced recovery.

The court held that the offer to settle provisions for full recovery were not triggered because neither side did as well or better than all terms of any offer.

Applying the costs discretion under s. 131(1) of the Courts of Justice Act and Rule 24 of the Family Court Rules, the court weighed success, settlement conduct, reasonableness, and the responding party's severe financial hardship.

The court awarded reduced costs of $4,000 inclusive of HST and disbursements.

The court refused to set off the costs award against ongoing child support.

In a costs decision following a civil trial arising from an unpaid commission dispute, the court considered proportionality, the parties' relative success, and their litigation conduct.

The plaintiff recovered modest damages while the defendants abandoned most of a substantial counterclaim during trial.

The court held that both sides had taken unreasonable positions and had escalated the litigation beyond what was at stake, but found the plaintiff was proportionately more successful.

Rejecting the request for substantial indemnity costs, the court fixed costs in the plaintiff's favour at $25,000 inclusive.

The applicant spouse moved to set aside a mortgage registered against the matrimonial home on the basis that the titled spouse obtained the loan without her knowledge or consent.

The court applied s. 21 of the Family Law Act and held that the non-party lender advanced the funds for value, in good faith, and without notice that the property was a matrimonial home.

The borrower’s statement that he was separated and that the property was not ordinarily occupied by the spouses at separation was deemed sufficient proof under s. 21(3)(c), absent notice to the contrary.

The court declined to set aside the mortgage, but ordered that there be no further dealings with the property pending resolution of the family law proceedings or further court order.

No costs were awarded.

The appellant appealed a summary conviction for an over .80 offence after pleading guilty while represented by counsel.

He alleged ineffective assistance of trial counsel, including failure to advise on consequential penalties and pending changes in the law.

After supplementary affidavit evidence from trial counsel confirmed there was no dispute with the appellant's account, the appeal court allowed the appeal.

The guilty plea was set aside and a new trial was ordered before a differently constituted summary conviction trial court.

The defendant moved under Rules 21.01(1)(a) and 51.06 for a declaration that the plaintiffs had irrevocably elected to affirm a settlement agreement and therefore could not pursue rescission in the alternative.

In a complex commercial dispute arising from the termination of margin facilities and liquidation of hedge fund assets during the 2009 financial crisis, the court held that the factual matrix, discovery record, and alleged misrepresentations were too complicated to resolve on a paper record on the eve of trial.

The court was not satisfied that the pleadings or discovery admissions established the necessary elements of election, nor that a forced election between inconsistent remedies should be imposed at that stage.

The motion was dismissed, leave to amend was granted, and costs of $100,000 inclusive were awarded to the plaintiffs.

The accused, charged with drug offences, brought a pre-trial Charter application seeking to exclude drugs seized from his person and residence, as well as his inculpatory statements.

He argued that the warrantless search of his home violated s. 8, his consent was coerced by the unlawful detention of his daughter (s. 9), and his statements were involuntary.

The court found the arrest and search incident to arrest were lawful.

The court also held the daughter's detention was based on reasonable grounds and the accused's consent to search his home was voluntary and informed.

The application was dismissed and the evidence admitted.

Following a three-day family trial, the court rejected a claim by the wife's parents that an oral contract entitled them to a life interest in the matrimonial property or lifetime care in exchange for their financial contributions to two homes containing in-law suites.

Applying unjust enrichment principles, the court found the parents had conferred a tangible benefit through capital contributions and related payments, suffered a corresponding deprivation when the arrangement ended upon the spouses' separation, and established no juristic reason for the spouses to retain the full benefit.

A monetary award of $46,346.05 was ordered from the sale proceeds held in trust, after which the balance was to be divided equally between the spouses.

The court also ordered ongoing spousal support, dismissed the respondent's claim for compensation for adverse tax treatment of earlier support payments, allowed a 50% exclusion of a personal injury settlement from net family property, and fixed an equalization payment.

On a summary judgment motion by an unpaid subcontractor, the court held that owners breached the statutory trust scheme under the Construction Lien Act by directing a large advance payment to a related company that supplied no services or materials to the improvement.

The court rejected the argument that lack of privity barred relief, holding that the Act's trust provisions protect parties further down the construction chain and discharge the owner's obligations only where payment is made within the statutory scheme.

The payment to the related company was outside the Act, did not engage s. 10 protection, and did not satisfy holdback requirements.

Summary judgment was granted for the unpaid subcontract amount, with liability also extending to the owners' directors and officers under s. 13(1).

The plaintiff bank moved for summary judgment to enforce a personal guarantee and to set aside a transfer of a debtor's half-interest in the matrimonial home to his spouse.

The responding defendants argued the demand under the guarantee was unconscionable because the bank denied access to corporate banking information after the guarantor ceased to be a signing officer.

The court held there was no evidence of inequality of bargaining power, predation, or an improvident bargain, and found no genuine issue for trial on unconscionability.

Applying the Fraudulent Conveyances Act, the court found multiple badges of fraud, including a transfer between spouses for nominal consideration shortly after notice of impending demand, and set aside the transfer as a fraudulent conveyance.

Summary judgment was granted with partial indemnity costs.

The appellant appealed a conviction and sentence for assault arising from an altercation with his spouse during a separation and custody dispute.

The appeal court held that the trial judge failed to adequately explain the rejection of the appellant's evidence, particularly by relying on unspecified 'other serious improbabilities', and appeared to subject the appellant's evidence to a different level of scrutiny than the complainant's evidence.

Applying appellate principles governing unreasonable verdicts, errors of law, and credibility analysis, the court concluded that the conviction and sentence had to be set aside.

A new trial was ordered, and the ineffective assistance ground was not addressed.

The accused, an O.P.P. sergeant, was tried on charges of breach of trust and attempting to obstruct justice arising from allegedly false entries on traffic notice and summons documents for speeding offences.

The Crown relied on inconsistencies between the officer notes and laser-device data, as well as an interview said to contain admissions.

Applying the W.D. framework, the court found the accused's evidence was not fully believable but also could not be rejected, particularly given supporting circumstances including the laser-use log, recovered notes, and significant confusion and misleading statements during the police interview.

Considering the evidence as a whole, the court was left with a reasonable doubt about whether the accused had the requisite intent to falsify the documents.

The accused was acquitted on all charges.

On an application to pass accounts under a power of attorney for property, the court considered whether sale proceeds and related real estate transaction expenses should be included in the attorney's capital receipts and disbursements for compensation purposes.

Applying the percentage approach and cross-checking it against the five-factor trustee compensation framework, the court held the requested compensation based on the house sale was excessive where the attorney did not receive or disburse those funds directly.

The court found the estate modest and the care, responsibility, and time involved relatively limited.

However, the attorney's assistance in facilitating the sale justified a quantum meruit adjustment.

Compensation was fixed at $3,000 and no costs were awarded.

The court heard a receiver's motion to vacate a Letter of Credit posted as security in a civil action arising from a commission claim connected to a real estate development.

Applying r. 59.06(2) of the Rules of Civil Procedure, the court held the moving party had not shown changed circumstances sufficient to justify cancelling the security, particularly given ongoing management concerns, accumulating expenses, and subsequent lien registrations.

The court found the plaintiff's underlying claim appeared strong and declined to leave any eventual recovery to the receiver's court-approved distribution process.

The motion was dismissed on the request to cancel the Letter of Credit, but granted as to reimbursement of the carrying costs of the Letter of Credit and discharge of the plaintiff's mortgage.

The defendant moved to transfer a motor vehicle-pedestrian action from Barrie to Lindsay, where the accident occurred and where the parties and some liability witnesses resided.

Applying Rule 13.1.02(2) and the venue comparison approach in Chatterson, the court held that the plaintiffs' chosen venue was reasonable and that the moving party had not shown Lindsay to be significantly better.

The court accepted that Barrie would likely be the least expensive forum because plaintiffs' counsel was based there and some expert and medical witnesses might be located outside Lindsay.

The motion was dismissed and costs of $1,200 were awarded to the responding parties.

In a family support motion brought pending an appeal from an adjournment order, the moving party sought suspension of support payments or payment into a holding account until the validity of a separation agreement could be determined.

The court held that Rule 38(25) of the Family Law Rules is procedural only and does not confer substantive authority to grant that relief.

The court further held that the requested remedy exceeded what could properly follow even if the appeal from the adjournment were successful.

The motion was dismissed, with brief written costs submissions invited.