SCJ 2015

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.

The applicant judgment creditor sought recovery from the respondent insurer under s. 132(1) of the Insurance Act after obtaining default judgment against an insured motor carrier for a destroyed food shipment.

The court held that the insurer could assert against the applicant any defence it would have had against its insured, including material misrepresentation in the insurance application.

The insured had answered negatively when asked whether it had contracts with shippers requiring liability terms superseding its standard bill of lading, despite having a contract exposing it to the full actual value of shipments.

The court found the freight forwarder functioned as a shipper in this context, the non-disclosure was material because it would have increased the premium, and the policy was void.

The application was dismissed.

This was a costs ruling following dismissal on summary judgment of the plaintiffs' action against a bank as statute-barred in a mortgage power of sale dispute.

The court rejected the bank's argument that the mortgage terms contractually entitled it to solicitor-client costs for defending the action, and also declined to award full indemnity costs based on the pleadings' serious allegations.

A time-limited offer to settle did not trigger the automatic consequences of Rule 49.10, but remained a relevant factor under Rules 57.01 and 49.13.

Costs were fixed on a partial indemnity basis up to May 21, 2014 and on a substantial indemnity basis thereafter, in the total amount of $33,279.28.

The defendant public authority moved for summary judgment dismissing a long-running action on the basis that the claims were barred by the six-month limitation period in s. 7(1) of the Public Authorities Protection Act.

Applying the summary judgment framework from Hryniak and the public/private power analysis from Des Champs, the court held the record did not permit a confident determination that the impugned conduct correlated sufficiently with the exercise of a public duty or authority.

The evidentiary record suggested the defendant was acting both as regulator and as a commercial actor dealing with potential lessors of Crown near-shore oil rights.

Summary judgment was refused, a mini-trial was declined, and the action was directed to proceed to trial expeditiously.

The plaintiffs sued the defendant home builder in negligence and nuisance after their basement flooded, causing over $65,000 in agreed damages.

The plaintiffs alleged that the defendant's construction activities on the adjacent lot obstructed a municipal drainage ditch, causing water to back up into their sump pump system and overheat the pump.

The court weighed conflicting expert evidence and preferred the defendant's expert, finding it more likely that spring runoff overwhelmed the sump pump or that the pump malfunctioned independently.

The court concluded the plaintiffs failed to prove on a balance of probabilities that the defendant's actions caused the flood, and dismissed the action.

On a discovery motion arising from related contract actions over a failed electrical generating project, the court considered whether a release executed between the defendant and a non-party utility had to be produced.

Applying the modern law of settlement privilege as a distinct class privilege, the court held the release was presumptively privileged and that no exception was justified because disclosure was not critical to doing justice in the underlying litigation.

A dispute over accounting source data was not ultimately argued after affidavit evidence and inspection access were offered.

The court declined to order follow-up oral discovery in the abstract and directed counsel to confer on an amended discovery plan.

The applicant insurer appealed an arbitration decision regarding priority to pay statutory accident benefits following a motor vehicle accident.

The arbitrator had found that the injured mother and her two children were not principally financially dependent on the mother's new partner because their relationship lacked 'permanence' or 'likely permanence,' leading him to use a 12-month pre-accident timeframe.

The Superior Court held that requiring permanency was an error of law and that the arbitrator improperly speculated on the future of the relationship.

The court found that the mother and children were principally financially dependent on the partner at the time of the accident, making the respondent insurer responsible for the benefits.

The applicant sought to terminate a testamentary trust created by his grandfather, remove his uncle as estate trustee, compel a passing of accounts, and obtain a declaration of his right to use the estate's farm property.

The court found that the applicant held only a contingent interest in the trust fund and a vested future interest in the farm property, which did not grant him a present right to possession or use.

The court dismissed the requests to terminate the trust, remove the trustee, and compel a formal passing of accounts, but ordered the respondent to provide the applicant with copies of the existing accounting records.

On a motion for summary judgment seeking dismissal of a spouse's corollary relief claim and preservation of a separation agreement, the court held the motion could not proceed because a pending Divisional Court appeal challenged an earlier severance order.

The court applied Rule 16(2) of the Family Law Rules, which prohibits deciding a claim that includes a divorce by summary judgment motion.

Given the unresolved validity of the severance, the court declined to hear the motion, converted the attendance into a case conference, and directed the parties to return after the appeal ruling.

Costs were deferred.

Summary conviction appeal from convictions for impaired driving, driving with a blood alcohol level over the legal limit, and failing to remain at the scene of an accident.

The appellant challenged the admission of a witness’s out-of-court description of the driver, arguing necessity and threshold reliability were not established and that residual discretion should have been exercised to exclude the hearsay.

The court held the witness’s faded memory satisfied necessity, the surrounding circumstances provided adequate threshold reliability, and there was no basis to invoke residual discretion.

The court further held the appellant’s statement that no one else drove the van was properly treated as compelling circumstantial evidence on identity.

The appeal was dismissed.

The applicant sought child support for a child born in 2009, with support commencing from the date her application was issued in 2012.

The court found the respondent's financial disclosure deficient, determined income for child support purposes for 2012 through 2014, and ordered table child support under the Manitoba Child Support Guidelines together with monthly payments toward arrears.

The court rejected submissions that support should not be payable because the respondent supported another household or because public assistance had been received.

Claims for special or extraordinary expenses under s. 7 and undue hardship under s. 10 of the Guidelines were dismissed for lack of evidence.

In a garnishment hearing arising from a family support order, the court considered whether notices of garnishment could enforce disputed section 7 expenses and future periodic child support out of trust funds from the sale of the matrimonial home.

The court held that section 7 amounts must be readily ascertainable and undisputed before garnishment may issue, and set aside the garnishment relating to hockey and university expenses because prior notice, consent, and complete supporting disclosure had not been established.

The court nevertheless permitted the amount already garnished for university expenses to be retained as a credit against the payor’s eventual obligation.

Although garnishment may attach future periodic child support under Rule 29, the court directed that no further amounts be garnished in the circumstances.

In an addition to earlier reasons, the court addressed an omitted procedural issue raised by the respondent in a family law proceeding.

The respondent sought severance of the divorce claim from the balance of the applicants' claims as a preliminary step to permit the hearing of a summary motion.

The applicants did not oppose the request.

The court granted the severance request nunc pro tunc.

On a summary judgment motion in an employment compensation dispute, the court interpreted an unsigned compensation amendment governing commissions and bonuses for an executive recruiter.

Applying commercial contract interpretation principles and, alternatively, contra proferentem, the court held that a 5% admin fee requirement was not a precondition to bonus eligibility.

After crediting a further payment received on an outstanding client receivable, the court found the moving party’s 2013 net billings exceeded the $1 million threshold, triggering a 3% bonus.

The court also held that equitable set-off was unavailable to justify withholding commissions based on a counterclaim for damages arising from the moving party’s resignation and alleged solicitation of a client.

Summary judgment was granted on the compensation claim, subject to recalculation.

The moving party sought an order referring the action to a master for trial together with, or immediately after, related construction lien proceedings arising from the same rail maintenance facility project.

The court held that the actions shared central questions of fact and law, including responsibility for project delay and resulting losses, and involved overlapping parties, witnesses, documents, and damages.

The court also found that a prolonged review of project documentation and accounting issues made reference under Rule 54 appropriate.

The objection based on s. 58(1) of the Construction Lien Act failed because, in the circumstances, no pleadings remained open.

The motion was granted and costs were left to the master.

In a child protection proceeding concerning a newborn apprehended shortly after birth, the grandmother moved to be added as a party and sought leave to file a plan of care.

The court applied the established discretionary factors governing party addition in child protection matters, including the child’s best interests, delay, necessity, and the proposed party’s capacity to advance a viable plan.

The motion was dismissed because adding the grandmother was not in the child’s best interests, would likely delay permanency, and the evidence did not satisfy the court that she could put forward a plan in the child’s best interests.

The plaintiff moved to set aside a Registrar’s dismissal of a personal injury action arising from a shooting at a Halloween attraction.

The court held that the delay was attributable to counsel’s serious depression and anxiety rather than the plaintiff, and that the defendants and third parties had not demonstrated meaningful prejudice from restoration of the action.

Applying a contextual approach to the Reid factors, and considering the evolving Rule 48 regime and proportionality, the court reinstated the action.

The court imposed a deadline requiring the action to be set down for trial by December 31, 2015 and awarded the defendants lump-sum motion costs.

The applicants sought judgment on a $5 million promissory note securing advanced commissions paid under a charity fundraising and consulting arrangement.

The respondent contended the advance had been fully earned through commissions on funds raised in 2008 and therefore nothing remained owing on the note.

The court accepted the respondent's position, relying heavily on the charity's 2008 tax filings to find that the advanced commissions had been earned and that the note debt was extinguished by statutory set-off under s. 111 of the Courts of Justice Act.

The court dismissed the applicants' claim, discharged the related security, and held that the respondent's attempt to recover an additional commission balance was statute-barred.

On a Commercial List motion, the plaintiff liquidator sought to strike from the responding defendants' statement of defence the allegation that the action had been commenced for an improper purpose.

The court held the motion was not barred by delay and that leave was not required under the Rules of Civil Procedure in the circumstances of Commercial List trial scheduling.

Applying the plain and obvious test for striking a defence, the court held that improper motive is not a defence, while an improper purpose defence can survive only if the improper purpose was the sole purpose of commencing the action.

The impugned plea was permitted to stand only on a narrow factual basis, and other evidence directed to improper motive or unrelated allegations was ruled inadmissible for trial.

In a criminal trial ruling on admissibility, the accused challenged a search warrant obtained on confidential informant information and argued the apartment search breached s. 8 of the Charter.

The court applied the Debot and Garofoli frameworks, upheld the adequacy of the judicial summary used in the step six procedure, and found the unredacted ITO provided reasonable and probable grounds to issue the warrant despite weaknesses in the informant's proven reliability.

In the alternative, the court held that even if there had been a Charter breach, the handgun and ammunition would be admitted under s. 24(2) after applying Grant.

The firearm evidence was therefore ruled admissible.