SCJ 2015

The accused brought an application for an order permitting him to sit at counsel table during a first degree murder trial.

The court held that seating and location of an accused is within the trial judge's discretion and must balance courtroom safety and security with dignity, the presumption of innocence, communication with counsel, solicitor-client privilege, and the ability to follow the proceedings.

Given the accused's significant youth record for violent offences and his institutional assault record while in custody, the court found a sufficient security risk to require that he remain in the prisoner’s dock.

The court further held that this placement would not impair trial fairness or the accused's participation.

The applicant wife and respondent husband separated after a 25-year relationship.

The wife sought spousal support and equalization of net family property.

The court found that the matrimonial home, which had been transferred solely to the wife's name to protect it from the husband's creditors, was held 50 percent in trust for the husband under the presumption of a resulting trust.

The court declined to order an unequal division of net family property, finding that the husband's morally reprehensible conduct did not meet the exceptionally high threshold of unconscionability under s. 5(6) of the Family Law Act.

The wife was ordered to pay an equalization payment of $107,540.28.

The court found the wife entitled to spousal support, imputing the husband's income at $95,000.

Due to the high level of acrimony between the parties, the court ordered the husband to pay a lump sum spousal support amount of $96,064 to effect a clean break.

The applicant brought a family law motion seeking clarification of an earlier costs order arising from a trial judgment, in order to identify the portion of the costs award attributable to support issues.

The court approved irregular service by Facebook message and email where the respondent appeared to be evading service and the evidence supported that the materials had come to her attention.

Relying on the trial record and prior reasons, the court found that the bulk of the case concerned support and apportioned 90 percent of the $28,000 costs award, or $25,200, to support issues.

The court also ordered that the respondent's costs debt be repaid at $400 per month by set-off against ongoing support, with no costs of the motion.

In a contested guardianship proceeding concerning an adult child alleged to function at a much younger developmental age, the court dealt with multiple related applications.

On consent, it authorized production of police and school records sought for the guardianship case, subject to appropriate terms and privacy redactions.

The court held that the adult child's capacity was clearly in issue and directed the Public Guardian and Trustee to arrange counsel under s. 3 of the Substitute Decisions Act, 1992.

The mother's request for interim guardianship or access was declined pending input from the Public Guardian and Trustee, and the related court files were merged for case management purposes.

Judge-alone criminal trial on historical sexual assault-related charges involving two complainants who alleged abuse by a parental figure in the family home.

The Crown sought to rely on each complainant's evidence as similar fact evidence for the other, but the court held the Crown had not disproved an air of reality to collusion on a balance of probabilities.

After extensive review of inconsistencies, motive to fabricate, delayed disclosure, and reliability concerns, the court found the complainants' evidence did not satisfy the criminal standard.

The accused was acquitted on all counts.

The plaintiffs brought a civil action in negligence against the defendant police officers following the fatal shooting of their family member.

The deceased, who was intoxicated and armed with knives, advanced aggressively toward an officer and refused commands to drop the weapons.

The court found that the officers acted reasonably and within the standard of care expected in such dangerous and rapidly unfolding circumstances.

The action was dismissed, though damages were assessed at $100,000 under the Family Law Act in the event of an appeal.

On a temporary parenting motion, the court determined the best interests of five children in a high-conflict family dispute involving conflicting affidavit evidence and allegations of instability, abuse, and poor parenting on both sides.

Applying the best-interests factors under s. 24 of the Children's Law Reform Act and emphasizing stability, continuity of care, and the importance of keeping siblings together, the court found the least disruptive arrangement was for the children to be in the mother's primary care.

The court also relied on the Children's Aid Society position that it had no concerns with either parent having custody of or access to the children.

The father was granted significant parenting time.

In an estates motion brought during trial, the court determined a question of law concerning whether a widow holding life interests under two testamentary trusts was prohibited from accumulating trust income in her own name.

Applying ordinary principles of will interpretation, the court held the testator's language conferred broad and unrestricted use of trust income for the widow's sole use and benefit, without any requirement to preserve unused income for remainder beneficiaries.

The court found no express or implied limitation requiring capitalization of unused income and emphasized the testator's stated intention that his wife's well-being and comfort take priority over preserving the estate.

The question posed on the motion was answered in the negative.

This was a costs endorsement arising from competing guardianship applications brought by two daughters concerning an elderly incapable parent with dementia.

After the guardianship issue settled on terms recognizing one daughter as attorney for property and personal care, the court held the moving party had not achieved the position advanced in her application and rejected her claim to success.

Applying Rule 57.01 and the authorities governing costs in capacity litigation, the court emphasized that costs must reflect the best interests of the incapable person and must not unduly deplete the incapable person's estate.

Although the responding party sought over $93,000 on a complete indemnity basis, the court reduced the claim as excessive and awarded $50,000 inclusive.

The award was ordered payable from the incapable person's property rather than personally by the moving party.

The plaintiffs brought a proposed securities class action for secondary market misrepresentation under Part XXIII.1 of the Securities Act, obtained leave under s. 138.1, and had the action certified.

They later moved for leave to amend their statement of claim to add new allegations of misrepresentation.

The defendants consented to amendments that merely expanded already-pleaded allegations but opposed the balance as fresh misrepresentation claims requiring a separate, and now time-barred, leave application.

The court held that leave under s. 138.8 is assessed against each discrete allegation of misrepresentation, so that the impugned amendments — alleging new bribery and code-of-ethics violations in multiple jurisdictions — were not mere elaborations but discrete claims requiring a fresh leave application.

The motion was granted in part: the consented amendments were allowed and the impugned amendments were refused.

At a trial management conference in a long-running family law proceeding, the court addressed trial scheduling, disclosure management, and a request to revisit an earlier order suspending temporary spousal support.

The applicant sought reconsideration and leave to bring a further temporary support motion, but the court refused, emphasizing that the matter was already on the trial list and should proceed expeditiously.

The court nevertheless adjourned the trial start to accommodate counsel's scheduling conflict, imposed strict 20-day trial limits, regulated document copying charges, and set a detailed agenda for the continued trial management conference.

Both parties were barred from bringing further motions before trial.

The moving parties sought to have the action declared deemed dismissed under Rule 48.15(6), to set aside two ex parte orders, and to dismiss the claim against an individual defendant.

The responding party brought a cross-motion to set aside the deemed dismissal after lengthy settlement negotiations had delayed service and counsel had overlooked the transitional dismissal regime.

Applying the Reid factors contextually, the court held the delay was adequately explained, the missed deadline was inadvertent, the motion for relief was prompt once the issue was discovered, and no significant prejudice was shown.

The deemed dismissal was set aside and service of the statement of claim was validated nunc pro tunc, but the venue transfer order was set aside and the attempt to dismiss the individual defendant's claim failed.

The defendant builder moved for summary judgment arguing that a full and final release executed by the condominium corporation in settlement of a parallel s. 23 Condominium Act action barred the plaintiff unit owner's separate contractual action concerning deficiencies unique to its units and immediately related common elements.

The court held that the condominium corporation had no authority under s. 23 to settle or release the plaintiff's distinct individual claim for specific performance and related relief, and interpreted the release narrowly so it did not extend to that action.

The court also held that res judicata or abuse of process barred the defendant from relying on a release defence that could have been raised before the Court of Appeal when the scope of the plaintiff's right to maintain the action was litigated.

Because the parallel proceeding had settled and the release did not bar the claim, the partial stay would cause injustice and was lifted.

Following dismissal of a motion to compel arbitration, appoint an arbitrator, and stay the action, the court determined the defendants' costs entitlement.

The successful defendants sought substantial indemnity costs based on service timing complaints, an unaccepted offer to settle, and alleged improper submissions by the plaintiff.

The court rejected those bases for elevated costs, held that the offer to settle did not justify a costs advantage, and applied the Rule 57 factors.

Partial indemnity costs were fixed at $10,000 inclusive of disbursements and HST, payable within 30 days.

The applicant sought to revisit an earlier unsuccessful s. 11(b) Charter application after a mistrial in a fraud prosecution arising from the operation of a non-profit international adoption agency.

The court held that s. 653.1 of the Criminal Code creates a presumption that pre-mistrial Charter rulings remain binding unless the interests of justice require re-litigation.

Although the mistrial was attributable to investigative shortcomings by police and therefore to the Crown, only a limited additional period counted as institutional delay, leaving total Crown or institutional delay below the Morin lower range.

A fresh balancing of inferred prejudice against the significant societal interest in trying the allegations on the merits favoured continuation of the prosecution.

Following a judge-alone criminal trial based on the transcript of a prior jury trial that ended in a mistrial, the court found that the accused inflicted fatal head injuries and extensive bruising on a five-and-a-half-month-old infant while babysitting.

The court rejected the defence theory that the child's mother caused the injuries after returning from a wedding and found the accused's alternative explanations, including prior falls and a shower incident, to be fabricated.

Applying W.(D.), the court held the Crown had proved beyond a reasonable doubt that the accused caused the fatal injuries.

However, given the uncertainty in the medical evidence as to mechanism and force, and the accused's post-assault conduct suggesting concern for the child, the court was not satisfied that the Crown proved the subjective foresight of likely death required by s. 229(a)(ii).

Appeal from a Master's costs order made in bankruptcy-related proceedings arising from an earlier judgment over lottery winnings held in trust.

The appellant creditor had moved to lift the stay of proceedings, while the bankrupt debtor obtained a costs award against her after the stay issue had effectively become moot upon discharge.

The court held that the Master proceeded on wrong principles and made palpable and overriding errors by relying on an expired offer to settle, failing to explain a departure from the principle that costs follow the event, and apparently including costs related to the trustee's unopposed motion.

The $6,000 costs award was set aside and no costs were ordered for the underlying motion.

In this criminal proceeding, the accused brought Charter applications alleging excessive police force during an undercover drug arrest and an unreasonable search incident to arrest.

The court reviewed the evidence of the accused and multiple police officers concerning the takedown, facial injuries, the seizure of buy money, and the recovery of drugs and a cell phone.

Applying the governing principles on justified force and reasonable search incident to lawful arrest, the court found the force used was legally justified and reasonable in the circumstances and that the search was conducted lawfully.

The court rejected the accused's evidence on a central credibility issue, found no breaches of ss. 7 or 8, and dismissed the applications for exclusion under s. 24(2).

On a refusals motion arising from two related civil actions over a settlement agreement resolving a car dealership dispute, the moving parties sought production of solicitor-client communications and legal files concerning settlement negotiations.

The responding parties alleged they entered the agreement in reliance on misrepresentations and sought to set it aside, but did not plead reliance on legal advice.

The court adopted the two-part implied waiver analysis requiring that legal advice be material to the lawsuit and affirmatively put in issue by the party claiming privilege.

It held that merely placing state of mind in issue was insufficient, and that disclosure of a single email did not amount to selective disclosure waiving privilege over the broader solicitor-client communications.

The motion was dismissed.

Following a family trial, the court determined disputed incomes for support purposes, including whether income should be imputed from a home daycare business and related expense allocations.

The court found the respondent had understated income and overstated expenses, including through income splitting and excessive business-use-of-home deductions, and imputed annual income of $40,340 to her while fixing the applicant's income at $120,000.

Compensatory spousal support was ordered retroactively and prospectively, child support was recalculated with no arrears order after waiver and offset, and equalization was fixed at $98,404.29 payable from the applicant's share of the matrimonial home sale proceeds.

The court also made ancillary orders concerning divorce, insurance security, section 7 expenses, and distribution of sale proceeds.