SCJ 2015

The plaintiff moved for judgment for costs after the defendant accepted a Rule 49 offer to settle shortly before trial.

The court held that an offer providing for payment of $50,000 plus HST "in full and complete satisfaction of the plaintiff’s claim" unambiguously included costs, so rule 49.07(5) did not entitle the plaintiff to additional assessed costs.

The court further held that extrinsic evidence of pre-trial discussions was inadmissible under rule 50.09 and settlement privilege, and declined to dispense with that rule under rule 2.03.

The motion was dismissed.

The appellant appealed a master's order granting the respondent leave to maintain an action commenced while its business-name registration had lapsed and while there were alleged filing defaults under corporate disclosure legislation.

The court held the proceeding was not a nullity ab initio and that the saving provisions in the Business Names Act and Corporations Information Act were available.

Applying the statutory three-part tests, the court found sufficient evidence that the non-compliance was inadvertent, that the public had not been deceived or misled, and that the respondent was compliant at the time of the motion.

The appeal and the challenge to the $10,000 costs award were dismissed.

The court heard competing motions arising from a business sale dispute involving an agreement of purchase and sale entered into before the purchaser's corporation was incorporated and later followed by that corporation's bankruptcy.

The defendants sought to strike the individual plaintiff for lack of capacity and, alternatively, summary judgment dismissing his personal claim on the basis of an assignment under s. 21 of the Business Corporations Act; the plaintiffs sought declarations that the assignment transferred all rights and obligations to the corporation.

Applying the summary judgment framework, the court held the record was inadequate to fairly and justly determine the assignment and liability issues, particularly given conflicting positions, the absence of evidence from the trustee in bankruptcy, and factual disputes about payments and asset transfers.

The court interpreted s. 21 of the Business Corporations Act as not permitting rights and obligations under the pre-incorporation contract to be severed in the manner urged by the defendants.

All motions were dismissed, though the plaintiffs were directed to amend their pleading to clarify alternative claims.

On the return of a civil contempt motion, the plaintiff sought incarceration after the defendant failed to purge an earlier contempt finding by providing complete answers to undertakings.

The court found the defendant continued to mislead the court through repackaged, redacted, and unreliable documents and had not purged his contempt.

Applying the established principles governing civil contempt sentencing, the court held that a further custodial sanction was unnecessary given the prior striking of the defence, partial judgment, and earlier costs award.

The court instead imposed a $7,500 fine, authorized further tracing steps through signed authorizations, and awarded substantial indemnity costs of $12,000.

On a family law motion to change a final order, the applicant sought joint custody, an expanded parenting schedule, and corresponding child support changes.

Applying the best interests of the child test under s. 24 of the Children’s Law Reform Act, the court found the parties were unable to co-parent and ordered that the respondent retain sole custody and final decision-making authority.

The court declined to alter the existing schedule immediately, but prospectively ordered a week on/week off shared parenting arrangement beginning in May 2015 in light of expected changes to the respondent’s employment circumstances.

Child support remained unchanged until May 1, 2015, after which offset guideline support would apply, and section 7 expenses were to be shared proportionately to income.

At a contempt sanction hearing arising from bankruptcy and fraudulent conveyance proceedings, the Trustee sought leave to withdraw the motion for further incarceration after obtaining new information that undermined the bona fides of the creditor applicants' underlying claims and disclosure.

The court held that only the Trustee had standing to enforce the contempt order within the fraudulent conveyance action, and that leave was required because contempt at the sanction stage is a matter between the court and the contemnor.

Applying the full and frank disclosure obligation governing ex parte relief, the court found material non-disclosure in obtaining the Mareva and Anton Piller orders and rescinded those orders.

Although the respondent debtor had not fully purged contempt, further incarceration was not warranted; the motion was withdrawn, Christina Chiang was found to have purged her contempt, and costs were awarded to the Trustee and Christina Chiang against the creditor applicants.

The moving accused sought severance of two firearm counts laid only against a co-accused from the remaining home invasion robbery and unlawful confinement counts.

Applying the interests of justice analysis under s. 591(3) of the Criminal Code and the framework in Last, the court held the later-discovered revolver was sufficiently similar to the weapon seen in the surveillance evidence to make the May firearm evidence relevant and admissible on the October counts.

The court found a factual nexus between the counts, concluded any moral prejudice could be addressed by the trial judge, and held that separate trials would be inefficient where the evidence would be admissible in both.

The severance application was dismissed.

On competing summary judgment motions arising from the sale and continuation of a news kiosk franchise, the plaintiffs sought statutory recission of a later franchise agreement based on non-disclosure under the Arthur Wishart Act.

The court held that the October 2012 agreement was a new franchise agreement, not merely a renewal, extension, or transfer unaffected by the franchisor.

The franchisor failed to establish the claimed exemptions under ss. 5(7)(a)(iv), 5(7)(f), and 5(7)(g)(ii), particularly because the agreement contemplated payment of a franchise fee and involved new parties.

The plaintiffs' August 2013 rescission was within the two-year period under s. 6(2).

The plaintiffs obtained a declaration of entitlement to statutory recission and the defendants' motion to dismiss was denied.

In a judge-alone criminal trial on historical sexual assault allegations, the court applied the W.(D.) framework to conflicting testimony from the complainant and the accused.

The complainant alleged a sexual assault and threat occurring when she was 14, while the accused denied the allegations and advanced alibi evidence supported by employment records and defence evidence.

The court accepted the accused's evidence regarding his whereabouts and clothing habits, found aspects of the complainant's testimony troubling, and concluded the Crown had not proven guilt beyond a reasonable doubt.

The accused was acquitted on both counts.

This costs endorsement followed an unsuccessful third-party summary judgment motion seeking dismissal of a third party claim arising from a motor vehicle accident.

The court held that, in the post-Hryniak environment, substantial indemnity costs under Rule 20.06 may be awarded where a party acts unreasonably in bringing or responding to a summary judgment motion, without requiring egregious or reprehensible conduct.

The motion was found unreasonable because its legal basis was misplaced and the evidentiary record disclosed conflicting evidence requiring a trial.

The successful responding defendants were awarded substantial indemnity costs of $6,497.50 inclusive of HST.

On a summary conviction appeal from an over-80 conviction, the appellant argued the trial judge erred in assessing a bolus drinking defence where the breath samples were taken outside the two-hour window and the Crown relied on toxicological opinion evidence.

The court held that the trial judge improperly treated the appellant as bearing the burden of raising a reasonable doubt about an assumption underlying the expert opinion, rather than requiring the Crown to prove the factual foundation of that opinion beyond a reasonable doubt.

The court also found a central misapprehension of the evidence because the trial judge said there was no evidence of recent drinking despite accepting the appellant as credible.

The appeal was allowed and an acquittal entered.

This was a standalone costs decision following dismissal of two civil actions.

The successful defendants sought modest all-inclusive costs of $2,000 per action.

The court held the requested amount was reasonable, particularly when set off against earlier wasted costs previously awarded to the plaintiff on prior motions.

The plaintiff's submissions merely re-argued earlier motions and did not justify refusing costs.

Costs were awarded to the defendants as requested.

On a summary judgment motion arising from a motor vehicle accident involving an uninsured son driving his father's vehicle, the moving defendant sought dismissal of the plaintiff's claim and an insurer's crossclaim on the basis that the vehicle had been taken without consent.

Applying the post-Hryniak summary judgment framework, the court held there was no genuine issue requiring a trial on consent to possession.

The court found that although the father had forbidden operation of the vehicle and the son had signed an excluded driver form, the son retained legal possession because the vehicle and keys remained available to him and had been entrusted for his use.

The owner was therefore potentially vicariously liable under s. 192 of the Highway Traffic Act, with negligence and damages left for trial.

Following dismissal of an application for a prescriptive easement, the successful respondent sought partial indemnity costs.

The unsuccessful applicants argued the amount was disproportionate, particularly given the nature of the property dispute and the respondent's greater financial means.

The court applied the costs discretion under s. 131 of the Courts of Justice Act, together with Rules 57.01 and 1.04(1), and held that the respondent was entitled to recover fair and reasonable costs reflecting the complexity of the matter and the steps taken to defend its property rights.

Partial indemnity costs were fixed at $76,521.49, payable jointly and severally by the applicants.

The defendants moved to transfer a civil action from Toronto to London arising from alleged wrongful arrests, unlawful detention, Charter breaches, negligent investigation, malicious prosecution, and assault and battery by London police.

Applying Rule 13.1.02 of the Rules of Civil Procedure, the court held that the claim arose in London, the local community had a strong interest in the subject matter, and the convenience of parties and numerous witnesses substantially favoured London.

Although the plaintiff relied on medical evidence suggesting that a London trial would exacerbate anxiety and related symptoms, the court was not persuaded that this outweighed the other factors, particularly given the plaintiff's ongoing participation in family proceedings in London.

The motion was granted and the file was ordered transferred to London.

On a motion to change spousal support under the Divorce Act, the moving party argued that the recipient spouse's failure to complete a master's degree, decision to pursue teacher's college instead, and alleged non-disclosure before settlement amounted to a material change in circumstances.

The court held that, even under the parties' agreement lowering the foreseeability component of the material change threshold, the moving party failed to establish a material change warranting variation.

In the context of a long-term marriage and an existing review clause, the recipient spouse remained entitled to flexibility and time to work toward self-sufficiency.

The court also refused to look behind the original order based on alleged non-disclosure during settlement negotiations.

The defendants moved to strike two paragraphs of a statement of claim in an action seeking Charter damages arising from an alleged unreasonable strip search following arrest.

The plaintiff alleged the impugned paragraphs were material to a s. 15 equality claim because they connected her individual treatment to broader allegedly disproportionate strip-search practices affecting Aboriginal persons.

The court held that the paragraphs pleaded relevant material facts, did not constitute an improper disguised class action, and were not scandalous, frivolous, or vexatious.

The motion was dismissed, with costs submissions deferred if not agreed.

On a criminal trial arising from a house fire that exposed a clandestine methamphetamine laboratory, the Crown sought to adduce several utterances made by the accused to attending police officers.

The court held the utterances were voluntary under the confessions rule, rejecting arguments based on lack of caution, incomplete note-taking, oppression, and lack of operating mind.

Applying the detention analysis, the court found no breach of the informational component of s. 10(b) before the utterances were made, but found a later breach of the implementational component because police delayed access to counsel for several hours after arrest.

Applying s. 24(2), the court held the subsequent breach did not justify exclusion because the utterances predated the breach and their admission would not bring the administration of justice into disrepute.

Non-party insured lawyers moved under Rule 37.14(1) to set aside or vary an earlier order permitting garnishment of the professional liability policy of a lawyer and law firm, where the prior order effectively exhausted the policy limits.

The court held the moving parties were persons affected by the earlier order and had failed to appear because they were not served and did not receive adequate, meaningful notice.

On the merits, however, the court rejected the new coverage and priority arguments, holding the underlying orders requiring payment of client trust funds engaged the policy and supported garnishment.

The motion was dismissed, and no costs were awarded because all sides bore some responsibility for the duplicative proceedings.

At trial management conferences in a family property and spousal support dispute, the court addressed admissibility and case-management issues for an upcoming lengthy trial involving valuation of a motel business, equalization, and retroactive spousal support.

The court clarified that the applicant's claim concerning the motel was confined to equalization and excluded ownership, oppression, partition and sale, rent-income, and contractual enforcement theories.

The court held that an affidavit from a non-attending witness from related civil proceedings was not admissible as trial evidence under the Family Law Rules.

The admissibility of a business valuator originally retained by one side and later approached by the other was deferred to the trial judge, given its central importance and potential mistrial consequences.

Detailed directions were made respecting witness lists, will-say statements, translations, financial disclosure, trial briefs, and further trial management.