SCJ 2015

In a high-conflict family trial, the court held that joint custody was unworkable and contrary to the children's best interests given prolonged parental conflict and an inability to communicate.

Sole custody was awarded to the father based on his demonstrated involvement, responsiveness to the children's educational and welfare needs, and greater likelihood of supporting the children's relationship with the other parent.

The court also resolved disputes over surnames, child support, section 7 expenses, and equalization-related claims concerning sale proceeds from the former jointly owned home.

Income was imputed to the mother, retroactive section 7 reimbursement was denied, and credits were granted to the father for mortgage overpayments, occupation rent, and personal property.

Following earlier findings of civil contempt for non-compliance with a Mareva injunction and related disclosure orders, the court determined sentence.

The contempt involved repeated failures to disclose assets and the whereabouts of trust funds, deliberate obstruction of examinations, and ongoing refusal to purge contempt despite multiple opportunities and clarifying endorsements.

Applying civil contempt sentencing principles that emphasize proportionality, coercion, deterrence, denunciation, and compliance, the court imposed conditional sentence orders on two contemnors and an intermittent custodial sentence on the contemnor found most deliberately defiant.

The court also awarded the successful moving party substantial indemnity costs of the contempt process.

The plaintiff moved for an interlocutory injunction and Anton Piller relief against former senior employees, related corporations, and an IT contractor alleged to have misappropriated confidential business information and usurped a corporate opportunity.

The court found a strong prima facie case of contractual breach, fiduciary breach, direct competition, and improper removal and retention of hard drives and server data containing confidential investor, marketing, and business-planning information.

Applying the RJR-MacDonald injunction test and the Celanese framework for Anton Piller orders, the court held that irreparable harm would result from the defendants' entry into a unique market using the plaintiff's confidential materials, and that there was a real possibility relevant electronic evidence would be destroyed.

The injunction and Anton Piller order were granted.

On a judicial interim release application for an accused charged with second degree murder, the court considered the reverse onus under s. 522(2) of the Criminal Code and whether detention remained justified under s. 515(10).

The record included a detailed release plan involving the accused's father as sole surety, strict house arrest, electronic alcohol monitoring, abstinence conditions, and passport surrender.

Although the Crown did not consent to release, terms were worked out with counsel if release were ordered.

The court held that the applicant met the onus and ordered release on stringent conditions.

This costs endorsement followed prior motion rulings concerning advancement and indemnification related to U.S. criminal proceedings.

The court held the successful party was entitled to full indemnity costs because the motion costs fell within the defined term “Legal Fees” under an earlier order governing advancement rights.

The court rejected objections based on alleged duplication of counsel and excessive staffing, particularly where the responding party provided no evidence of its own costs.

The only reduction concerned the investigator’s account, which was cut by 50 percent for attendance at discoveries.

Full indemnity costs were then fixed in the amount stated in the endorsement, plus a separate U.S. dollar amount.

The plaintiff subcontractor sought payment for drywall, taping services, and materials supplied on a window replacement project and enforced a construction lien after the contractor failed to pay the full invoiced amount.

The defendant contractor alleged deficiencies, incomplete work, and resident complaints, but adduced no reliable evidence of complaints, no proof of deficiency damages, and no evidence that the subcontractor was given an opportunity to cure.

The court found the verbal contract covered taping the sides of the windows, with separate additional patching work for a fixed extra price, and rejected the defendant’s set-off claim.

Judgment was granted for the unpaid balance, with prejudgment interest, lien relief, and substantial indemnity costs from the date of the plaintiff’s offer.

The defendants moved to set aside service ex juris and stay a defamation action brought by an Ontario resident against an Israeli newspaper and journalists regarding an article published online.

The court held that Ontario had jurisdiction simpliciter because the alleged defamatory article was read by individuals in Ontario, establishing a presumptive connecting factor through the commission of the tort in the province.

The defendants failed to rebut the presumption of jurisdiction and did not demonstrate that Israel was a clearly more appropriate forum under the forum non conveniens analysis.

The plaintiff’s undertaking to limit damages to reputational harm suffered within Canada, the availability of jury trials in Ontario, and fairness considerations supported Ontario as the proper forum.

The court also rejected the argument that the action constituted an abuse of process due to minimal publication in Ontario.

At a case conference arising from scheduling of a proposed summary judgment motion in a motor vehicle accident action involving a minor plaintiff and an accident benefits insurer, the court addressed inefficiency in the conduct of the litigation and fixed a timetable for competing motions.

The insurer proposed summary judgment dismissing punitive and aggravated damages claims, while the plaintiff proposed a cross-motion concerning the applicability of the Minor Injury Guidelines and a motion to amend to add bad faith damages.

The court recorded a judicial admission limiting the extra-contractual claims to the insurer's insistence on applying the Minor Injury Guidelines despite its own psychological assessment.

The endorsement emphasized proportionality, cooperation, and timely case management, and provided directions for cross-examinations, motion materials, and a further case conference.

Following a family trial, the court addressed access to the youngest child, retroactive and ongoing child support, spousal support, occupation rent, equalization, section 7 expenses, and divorce.

The court held that the existing consent access order would remain in place because no material change in circumstances had been shown.

Applying the governing framework for retroactive child support, the court ordered support retroactive for three years before the application date, found the adult daughter remained a child of the marriage, and fixed ongoing child support.

The court granted ongoing compensatory spousal support from May 2012 but declined retroactive spousal support before that date, dismissed the occupation rent claim, resolved net family property issues including exclusion of gifted foreign property, and ordered payment of specified section 7 expenses.

The defendant employer moved to strike portions of an amended statement of claim in a wrongful dismissal action on the basis that they pleaded privileged settlement communications.

The court applied the three-part settlement privilege framework and held that litigation was not contemplated until defence counsel became involved in November 2011.

Allegations reflecting unconditional assertions of contractual rights or the defendant’s actual legal position were not protected, but paragraphs expressly referring to attempts to resolve the sabbatical issue on a without prejudice basis during the litigious period were privileged.

The motion was granted only in part, with two paragraphs struck and leave to redraft.

This was a costs decision following dismissal of a defence summary judgment motion in a motor vehicle negligence action that alleged the claim was statute-barred.

The successful party sought $9,212.95 in costs, while the opposing parties argued that no costs should be awarded or, alternatively, that costs should be reduced.

The court held there was no reason to depart from the normal rule that partial indemnity costs follow the event.

After reviewing the bill of costs and responding submissions, the court fixed costs at $7,750 all inclusive.

This was a costs decision following a successful motion staying a proposed franchise class action in favour of arbitration.

The court held the successful defendants were entitled to partial indemnity costs for the stay motion and related motions, subject to a set-off in favour of the plaintiffs for their earlier success on a pleadings motion.

The court rejected the plaintiffs' argument that costs should be denied or significantly reduced under s. 31 of the Class Proceedings Act, 1992 because of novelty or public interest.

After set-off, the court awarded one defendant $8,000 and the other successful defendants $85,000, all inclusive.

The respondent husband sought leave to appeal an interlocutory order that dismissed his motion to sever his claim for divorce from the applicant wife's claims for corollary relief.

The motion judge had refused severance on the basis that the husband's failure to provide financial disclosure prejudiced the wife, and that severing the divorce could cause her legal disadvantage by terminating her rights under the Succession Law Reform Act in the event of his intestacy.

The court found no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the potential loss of estate rights and insurance coverage constituted valid legal disadvantages under Rule 12(6) of the Family Law Rules.

The motion for leave to appeal was dismissed.

The plaintiff brought an urgent motion arising from allegations that the defendant defrauded him of $186,000 through an altered bank draft provided in a condominium purchase transaction.

The court granted substituted service by e-mail, leave to issue a certificate of pending litigation, and interim relief restraining the defendant from encumbering, damaging, or dealing with the condominium unit pending a further hearing.

The court also ordered plaintiff's counsel to have sole keyed access to the unoccupied unit, subject to the plaintiff's undertaking to pay damages.

Costs were reserved.

On a motion for judgment against a defendant noted in default in an estate dispute, the plaintiff sought liquidated damages for his share of estate funds, a portion of estate-funded legal costs, and trustee remuneration.

The court held that deemed admissions in the statement of claim supported judgment only for the specific funds distributed to the defaulting defendant that had been set aside for the plaintiff.

The pleaded facts did not establish entitlement to recover alleged estate mismanagement losses, legal costs, or trustee compensation on the motion.

Judgment was granted only in part, with leave to pursue the remaining claims at trial.

In a jury trial on four counts of first degree murder, the accused sought exclusion of proposed motive evidence tendered by the Crown.

The court held that evidence suggesting the accused wished to impress a mentor with an authentic reputation for violence had a sufficient logical connection to the alleged shooting to satisfy relevance.

The court further held that evidence of the accused having been shot in the same area in 2001 was admissible, not as proof of a generalized animus to the neighbourhood, but as part of the explanation for the choice of location.

The defence submission that the evidence would invite speculative reasoning akin to post-traumatic stress was rejected, and the motive evidence was admitted subject to strict limits ensuring no inference other than that the accused had been an innocent victim in 2001.

In an estate litigation matter resolved by consent dismissals of a third party claim and a counterclaim with costs, the court determined the quantum, scale, apportionment, and timing of the resulting costs award.

The moving parties sought substantial indemnity costs after being sued personally for conspiracy, inducing breach of contract, and interference with economic relations in claims totaling $12 million.

The court held that, although there had been no adjudication on the merits and no basis to find the claims were knowingly unsupported or maliciously advanced, the nature of the intentional misconduct allegations justified elevated costs.

The claimed amounts were reduced as excessive, and total costs were fixed at $70,000 inclusive, apportioned between the responding parties, with no deferral of payment.

In a family law motion arising within a broader motion to change concerning custody, access, and child support, the moving party sought a restraining order and a contempt finding.

The court held the contempt allegations could not fairly be determined on conflicting affidavit evidence and adjourned that aspect sine die pending disclosure from the Children’s Aid Society, the police, and the involvement of the Office of the Children’s Lawyer.

The request for a restraining order under s. 46 of the Family Law Act was dismissed because the evidence of present risk was insufficient and largely speculative, particularly given the absence of recent contact.

No costs were awarded.

In an uncontested defamation trial arising from anonymous postings on an online investment bulletin board, the court found that statements accusing the chief executive officer of lying, defrauding shareholders, stealing ownership interests, and misusing corporate funds were defamatory of both the individual plaintiff and the corporate plaintiff.

The court held that publication and reference were established, but rejected the corporate plaintiff's claim for special damages based on alleged market capitalization loss because the expert evidence was unreliable and causation was not proven.

The individual plaintiff received $30,000 in general damages and $10,000 in aggravated damages.

The corporate plaintiff received $25,000 in general damages.

Punitive damages were refused.

On a family law motion to change, the applicant sought termination of child support, a determination of spousal support arrears, and expedited payment of an equalization amount ordered in an earlier final order.

The court held the evidence established that both children ceased to be dependants effective June 1, 2011, and terminated child support as of that date.

The court refused to entertain an unpleaded request to extend spousal support and found the applicant failed to prove alleged spousal support arrears on a balance of probabilities.

The court also declined to vary or accelerate the equalization payment provisions, holding the earlier order remained in force.

Given divided success, no costs were ordered.