SCJ 2015

Following a multi-day family law trial involving claims for divorce, equalization of net family property, spousal support, and unjust enrichment relating to improvements made to farm property owned by the wife's grandparents, the court determined costs.

The applicant had succeeded in obtaining a $50,000 judgment for unjust enrichment against the grandparents, while the respondent spouse obtained an equalization award exceeding $41,000 and dismissal of other claims occurred.

The court analyzed competing offers to settle under Rules 18 and 24 of the Family Law Rules and considered the relative success of the parties and the reasonableness of their settlement positions.

Although success was divided, the court found the applicant overall more successful, particularly on the unjust enrichment claim.

Costs were awarded to the applicant in a reduced and proportional amount.

Following earlier reasons granting partial default judgment in a commercial dispute, the plaintiffs made further submissions seeking a declaration that the defendants owed them a fiduciary duty and requesting reconsideration of punitive damages.

The court reviewed the legal framework governing fiduciary relationships, emphasizing that fiduciary duties arise from specific relationships involving discretion, unilateral power, and vulnerability, and generally require a voluntary assumption of loyalty obligations.

The court held that the parties were arm’s‑length commercial actors engaged in a business relationship for mutual profit, and that the equitable trust remedies previously recognized were imposed after the fact to prevent unjust enrichment rather than to establish fiduciary obligations.

As a result, the court declined to declare the existence of a fiduciary duty and refused to revisit the earlier determination on punitive damages.

The applicant sought the extraordinary remedy of certiorari to quash a completed criminal trial in which he had been required to represent himself after an adjournment request was denied.

The applicant argued that the denial of the adjournment and the requirement to proceed without counsel amounted to a denial of natural justice and jurisdictional error.

The court held that the trial judge’s decision to deny the adjournment was an exercise of judicial discretion within jurisdiction.

Because the merits of the case had been tried and findings were made on the essential elements of the offences, the proper remedy was an appeal rather than certiorari pursuant to s. 776 of the Criminal Code.

The application for certiorari was therefore dismissed.

The accused brought a Garofoli application challenging the validity of a telewarrant used to search his residence for controlled substances.

The defence sought disclosure relating to a confidential informant, cross‑examination of the affiant, and exclusion of evidence seized during the search.

The court reviewed both redacted and unredacted versions of the Information to Obtain and considered whether the informant’s information was credible, compelling, and corroborated.

Although the court found the informant’s credibility to be poor and criticized the incomplete disclosure of the informant’s criminal record in the ITO, the information was sufficiently detailed and corroborated by police investigation to establish reasonable grounds.

The court concluded that the telewarrant was properly issued and the seized evidence was admissible.

The debtors filed Notices of Intention to Make a Proposal under the Bankruptcy and Insolvency Act.

They brought a motion seeking administrative consolidation of their proceedings, approval of DIP financing with a super priority charge, administration and D&O charges, approval of a stalking horse sale process, and an extension of time to file a proposal.

The court granted all the requested relief, finding that the DIP financing and charges were necessary for the debtors to continue operations and that the stalking horse sale process was fair, transparent, and the best alternative to maximize value for stakeholders.

The accused was tried for robbery, wearing a disguise with intent, and uttering threats arising from the robbery of a convenience store.

The central issue was identity, as the robbery itself and the elements of the offences were undisputed.

The Crown relied on circumstantial evidence including surveillance video comparisons, similarities in gait and footwear, and testimony from a witness who claimed the accused confessed and possessed stolen items shortly after the robbery.

Although the witness had credibility concerns due to substance use and inconsistent statements, the court found substantial corroboration from independent evidence including details about stolen coins, cigarettes, the disguise used, and the clerk’s description.

Considering the totality of the evidence, the court concluded the identity of the robber was proven beyond a reasonable doubt.

The defendants brought a motion for summary judgment dismissing an action alleging environmental contamination of the plaintiff’s property by petroleum hydrocarbons migrating from a neighbouring former gas station site.

The defendants argued the claim was statute‑barred under the Limitations Act because it was commenced more than two years after the claim was discoverable.

The court held that the plaintiff knew or ought reasonably to have known of the material facts supporting a claim by March 2012 through environmental investigations conducted during its due diligence period.

The later Phase II environmental report merely confirmed suspicions already known.

The court also rejected the argument that ongoing contamination constituted continuing damage that created a new limitation period due to lack of evidence of fresh damages.

Summary judgment was granted dismissing the action as out of time.

The applicant mother and respondent father separated after nine years of marriage.

The mother sought sole custody of their nine-year-old child, supervised access for the father, and child support.

The father sought shared custody.

The court found that the father had unresolved mental health issues, exhibited aggressive behaviour towards third parties, and was entirely unable to communicate effectively with the mother.

Applying the best interests of the child test, the court awarded sole custody to the mother and ordered that the father's access be supervised, subject to a review in six months.

The court also maintained a restraining order against the father and ordered him to pay child support and arrears.

The moving party sought to vary a final child support order by reducing his support obligation based on an alleged decline in income.

The original order was made on consent using an acknowledged income significantly higher than that reported on the moving party’s tax return, reflecting substantial cash income from tips.

The court held that on a motion to change the original order is presumed correct and the moving party bears the burden of proving a material change in circumstances.

The evidence, including the moving party’s income tax returns, showed his reported income had increased rather than decreased.

The court found no material change and dismissed the application to reduce child support.

Following dismissal of the plaintiff’s action and the unsuccessful appeal, the self-represented defendant sought costs totaling $12,093.30.

The court considered the governing principles for awarding costs to self-represented litigants, including the requirement that the litigant demonstrate time spent performing work ordinarily done by a lawyer and that the time represented an opportunity cost in lost income.

Applying the principles from Fong v. Chan and Mustang Investigations v. Ironside, the court allowed compensation for certain legal preparation activities but excluded time for travel and general attendance.

The court emphasized that costs principles apply equally to self-represented parties and that successful litigants may receive indemnification where opportunity cost is proven.

A reduced amount representing lost income and disbursements was awarded.

The applicant sought interim custody or primary residence of the parties’ child, defined access for the respondent, child support, and contribution to daycare expenses.

The respondent sought expanded access and a change of the child’s school.

The court held that the child’s primary residence should remain with the applicant given the status quo and the child’s long-standing residence and daycare arrangements.

The court rejected the respondent’s claim that his parenting time reached the 40 percent threshold under s. 9 of the Federal Child Support Guidelines and ordered table child support based on the respondent’s income for relevant periods.

The request to change the child’s school was dismissed on an interim basis pending further evidence.

Following a successful summary judgment motion by the plaintiffs in a wrongful dismissal action, the court addressed costs.

One defendant sought costs against the other defendant rather than the plaintiffs, arguing that the other party’s litigation position caused its involvement in the action.

The court rejected that position and held that no costs would be awarded for or against that defendant.

The court found the remaining defendant liable for the plaintiffs’ costs and determined that substantial indemnity costs were appropriate due to the defendant’s unfounded and strategic allegation of termination for cause, which unnecessarily complicated and lengthened the proceedings.

The applicant brought a motion for interim child support for two children based on an imputed income of $50,000 to the respondent and requested the order be retroactive to the date of separation.

The respondent argued that support should be calculated based on his limited employment insurance income and recent temporary employment.

The court held that it should be cautious about imputing income on an interim motion without clear evidentiary support and found insufficient evidence to justify imputing $50,000.

However, the court determined it was reasonable to expect the respondent could earn at least $20,000 annually and imputed that amount for interim purposes.

Interim child support was set at $306 per month effective January 1, 2015, with credit for payments already made.

The defendant insurer brought a motion seeking security for costs and related procedural orders in an action arising from a motor vehicle accident benefits dispute.

The plaintiff had previously pursued multiple proceedings following the denial of additional statutory accident benefits by a Financial Services Commission arbitrator and subsequent appeal.

The court found there was reason to believe the ongoing action was approaching the threshold of frivolous or vexatious litigation and that security for costs was justified under Rule 56.01(1)(e) of the Rules of Civil Procedure.

The court ordered the plaintiff to pay $2,500 as security for costs within 45 days failing which the action would be stayed, established a discovery timetable, and restricted direct communications with the defendant.

Partial indemnity costs of $2,500 were also awarded to the defendant.

Following reasons granting judgment to the applicant on a dispute arising from a share purchase and pledge arrangement, the court determined the appropriate costs award.

The successful party sought costs on a full or substantial indemnity basis, while the responding parties argued that success was divided or that costs should be reduced.

The court held the applicant was clearly the successful party and entitled to costs but found no litigation conduct justifying full or substantial indemnity.

Applying Rule 57.01 of the Rules of Civil Procedure and considering proportionality, complexity, and reasonable expectations, the court fixed costs on a partial indemnity basis.

Costs were set at a lump sum payable jointly and severally by two respondents.

The applicant brought a motion to set aside an administrative dismissal of his family law application under Rule 39(12) of the Family Law Rules and sought to revive claims for spousal support and unjust enrichment arising from a long-term cohabitation relationship.

The court considered the framework for setting aside administrative dismissals, including the explanation for delay, promptness of the motion, and prejudice to the responding party.

The court found the applicant had repeatedly failed to comply with prior court orders and disclosure undertakings, had delayed in bringing the motion, and had not demonstrated a compelling underlying claim.

Significant prejudice to the respondent was also established due to legal costs and reliance on the dismissal.

Balancing the relevant factors, the court refused to set aside the clerk’s dismissal order and confirmed that the proceeding remained dismissed.

Following a trial decision dismissing a claim for unpaid royalties under a patent licence agreement, the successful defendant sought partial indemnity costs exceeding $637,000.

The plaintiff accepted entitlement to costs but argued the claim was excessive relative to the scope of the litigation and its own costs.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles in Boucher, the court assessed factors including the complexity of the dispute, the importance of the issues, the parties’ expectations, and the reasonableness of the hours and disbursements claimed.

The court found the defendant’s claimed hours were very high compared to the nature of the four‑day trial and reduced certain disbursements.

Costs were fixed at $300,000 for fees and $90,000 for disbursements, plus HST.

The applicant sought leave to appeal an arbitrator's decision regarding a construction dispute.

The arbitrator had granted partial summary judgment to the respondent and dismissed the applicant's counterclaim, finding the applicant failed to provide a 'claim made in writing' as required by the contract.

The applicant also sought leave to appeal the arbitrator's award of contractual interest.

The Superior Court of Justice granted leave to appeal on the issue of whether the correspondence constituted a 'claim made in writing', finding it raised an extricable question of law.

However, the court denied leave to appeal the interest award, concluding it involved a question of mixed fact and law regarding contractual interpretation.

The plaintiff bank moved for summary judgment against a guarantor spouse seeking payment under a personal guarantee and possession of the mortgaged property securing the debt.

The responding guarantor argued that the guarantee and subsequent collateral mortgage were unenforceable due to non‑disclosure, misrepresentation, undue influence by her spouse, lack of proper independent legal advice, and unconscionability.

The court held that the bank satisfied its obligations by requiring independent legal advice and had no duty to investigate the adequacy of that advice where authentic letters were provided.

Although the marital relationship raised a presumption of undue influence, the bank rebutted the presumption through the guarantor’s repeated acknowledgments of independent legal advice and voluntary execution of the agreements.

Summary judgment was granted for the bank for the guaranteed amount and possession of the property, but leave to issue a writ of possession was denied pending better evidence regarding actual possession of the property.

The respondent spouse brought motions seeking to set aside a prior order striking his pleadings for failure to comply with disclosure obligations and to extend the time for delivering financial disclosure in a family support proceeding.

The court reviewed the lengthy procedural history and concluded the moving party had repeatedly ignored disclosure orders and failed to provide any reasonable explanation for the prolonged non-compliance.

Applying appellate guidance on the discretionary power to strike pleadings for litigation misconduct, the court declined to reinstate the pleadings.

However, to assist the court’s fact‑finding process on outstanding support issues, the moving party was granted limited participation rights at trial, restricted to cross‑examination and submissions.

Costs were awarded against the moving party.