SCJ 2015

The defendant landlord moved for summary judgment dismissing a personal injury action as statute-barred under the Limitations Act, 2002.

The plaintiff had sued a nightclub within the limitation period after falling from an elevated dance floor but only later added the landlord after discovering during examinations for discovery that the landlord participated in the design and construction of the stage.

The court considered the discoverability provisions under s. 5 of the Limitations Act, 2002 and the extent of reasonable pre-discovery investigation required of plaintiff’s counsel in occupiers’ liability claims.

The court held that the plaintiff was not required to seek information from adverse parties before discovery where those parties had no obligation to provide it.

The limitation period began when the plaintiff first learned of the landlord’s involvement during discovery, rendering the action timely.

The accused applied to exclude evidence under s. 24(2) of the Charter, alleging multiple Charter breaches arising from a roadside investigative detention following an armed robbery.

The court found the initial stop lawful but concluded police breached s. 10(a) and s. 10(b) by failing to promptly inform the detainee of the reason for detention and the right to counsel.

The accused argued that evidence discovered later, including items found at his residence and incriminating text messages, was derived from the unlawful detention.

Applying the framework from R. v. Grant, the court held that although the police conduct was deliberate, the link between the breach and the later-discovered evidence was weakened by intervening events including consent given by a third party and search warrants.

Considering the seriousness of the offence and the reliability of the evidence, the court admitted the evidence.

Following a trial in which the defendants successfully defended multiple claims including breach of contract, spoliation, unjust enrichment, and property-related torts, the court determined costs.

The defendants sought substantial indemnity costs and recovery of professional fees for several witnesses characterized as participating experts.

The court confirmed that participating experts may justify reasonable compensation where their expertise arises from involvement in the underlying events.

Applying Rules 49 and 57.01 of the Rules of Civil Procedure and principles of proportionality, the court awarded partial indemnity costs to the date of the defendants’ offer to settle and substantial indemnity costs thereafter.

The moving party father sought unsupervised overnight access to his six-year-old son, while the responding party mother brought a cross-motion for retroactive child support.

The court dismissed the mother's claim for retroactive support due to a lack of evidence regarding the father's income.

Regarding access, the court found that the mother was actively interfering with the father-son relationship and moving the goalposts for access.

The court ordered a staged access schedule, beginning with visits supervised by the paternal grandmother, and directed the parties to attend counselling.

The defendants brought a motion for leave to appeal an order that dismissed their motion to set aside two trial management orders.

The defendants argued that the original judge who made the trial management orders later recused himself due to a reasonable apprehension of bias, as he was the supervising judge of deputy small claims judges and the plaintiff's counsel was a deputy small claims judge.

The motions judge dismissed the motion to set aside on the basis of issue estoppel, finding the Divisional Court had already dealt with the bias issue.

The court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's order because he failed to consider Rule 59.06, and finding the issue of institutional bias to be a matter of general importance.

The appellant mother appealed a summary judgment order making her child a Crown ward with no access, and placing her other child with a paternal aunt.

The mother argued that her recovery from substance abuse and stabilization of her mental health created a genuine issue for trial regarding her fitness to parent.

The Superior Court of Justice dismissed the appeal, finding that the motion judge correctly applied the test for summary judgment and that the evidence, including parental capacity assessments and the mother's inconsistent progress, supported the conclusion that there was no genuine issue for trial.

The plaintiff brought a motion for summary judgment against the defendant for $67,408.88 owing on two equipment leases for vending machines.

The defendant, an unsophisticated retired nurse, argued the leases were unconscionable, she lacked mental capacity due to a brain tumor, and she was induced by misrepresentations from third-party vendors involved in a scam.

The court dismissed the motion, finding that the complex issues of unconscionability, capacity, and due diligence required a full trial with viva voce evidence to achieve a fair and just determination.

The Crown applied to have the respondent designated a dangerous offender following his convictions for serious personal injury offences against an intimate partner.

The respondent had a history of horrific violence against intimate partners, including a previous conviction for attempted murder where he bound and gagged a former girlfriend in the trunk of a car.

The court found a pattern of repetitive and persistent aggressive behaviour showing a failure to restrain his behaviour and a likelihood of causing severe psychological damage or injury to future intimate partners.

The court designated the respondent a dangerous offender and imposed an indeterminate sentence.

On a summary judgment motion in a child protection proceeding, the society sought an order placing the child in the care and custody of the father and stepmother under s. 57.1 of the Child and Family Services Act.

The mother opposed the motion but did not attend, relying on filed affidavits.

The court held that the society met its burden under Rule 16 of the Family Law Rules by establishing there was no genuine issue requiring a trial regarding the child’s best interests.

Evidence demonstrated significant improvement in the child’s stability, well-being, and development while residing with the father and stepmother, while the mother failed to present a viable parenting plan or evidence of improved capacity.

Summary judgment was granted placing the child in the permanent care and custody of the father and stepmother, with conditional supervised access available to the mother upon meeting specified requirements.

During a jury trial for first degree murder, the accused brought a pre‑trial application seeking to adduce third‑party suspect evidence implicating other individuals in the killings.

The proposed evidence relied primarily on a witness’s recorded police statement alleging that one individual had confessed to committing the murders.

The court conducted a detailed hearsay analysis and held that the statement lacked threshold reliability due to the witness’s motive to fabricate, serious drug abuse, extensive criminal record, inconsistencies in her accounts, and the absence of meaningful cross‑examination.

The alleged confession was also inadmissible both as a declaration against penal interest and under the principled hearsay exception.

The court further declined to relax evidentiary rules for defence evidence because the statements were inherently unreliable.

The respondent mother requested an addendum to a costs order to stipulate that the $54,700 costs award is enforceable under the Family Responsibility and Support Arrears Enforcement Act, 1996.

The applicant father opposed the request, arguing that his recent bankruptcy filing extinguished the debt.

The court rejected the father's argument, noting that support debts are not extinguished by bankruptcy and that the costs order related to a trial where spousal and child support were key issues.

The court granted the request, ordering the costs to be treated as a support order enforceable under the Act.

The appellant appealed summary conviction findings of guilt for sexual assault and sexual exploitation, arguing that the trial judge misapplied the credibility framework in R. v. W.(D.) and improperly restricted cross‑examination concerning alleged exculpatory statements made during the incident.

The appeal court held that although the trial judge’s articulation of the second branch of the W.(D.) test differed slightly from the classic formulation, the reasons as a whole demonstrated that the correct burden of proof was applied and the accused’s evidence was rejected in its entirety on credibility grounds.

The court also found no miscarriage of justice arising from the trial judge’s intervention regarding prior exculpatory statements and the requirement for assurance that the accused would testify.

Any potential confusion was addressed during the trial and did not prejudice the defence.

The convictions were therefore upheld.

The defendants brought a motion seeking an order bifurcating a jury trial so that liability would be tried first and damages later in a motor vehicle accident action involving catastrophic brain injury and complex insurance coverage issues.

The court held it lacked jurisdiction to bifurcate liability and damages where a valid jury notice had been delivered and the parties did not consent, relying on binding Court of Appeal authority.

The court further noted that even if jurisdiction existed, bifurcation would risk duplicative evidence, inconsistent findings, additional delay and cost, and could undermine settlement incentives.

The motion was dismissed and costs were awarded to the responding plaintiff.

In the context of CCAA proceedings, the moving party sought an order requiring the Monitor to disclose all information and documents it considered when reviewing proofs of claim submitted by another creditor group.

The moving party intended to use this information at a claims hearing to argue that the claims officer should apply the same standard of proof used by the Monitor.

The court dismissed the motion, finding that the roles of the Monitor and the claims officer under the claims procedure order were fundamentally different, and the request constituted an impermissible collateral attack on that order.

Furthermore, the court noted that comparing claims would result in an unnecessary trial within a trial and risk disclosing confidential lending practices.

During a criminal jury trial for arson with disregard for human life under s. 433(a) of the Criminal Code, the Crown sought to have the jury also consider arson causing damage to property under s. 434 as a lesser and included offence, or alternatively, to amend the indictment to add a s. 434 charge.

The court ruled that s. 434 is not a lesser and included offence of s. 433(a) because it contains distinct elements, such as the property not being wholly owned by the accused.

The court denied the Crown's motion to amend the indictment mid-trial, finding it would prejudice the accused and risk confusing the jury.

However, the court permitted the offence of mischief to be put to the jury as a valid included offence.

The appellant brought a motion to reopen a final judgment based on fresh evidence, specifically a document ('exhibit H') purporting to show the correct zoning for his property, which would resolve a dispute over a revoked building permit.

The court found it had jurisdiction to reopen the case under Rule 59.06(2)(a) to prevent a miscarriage of justice, despite the appellant's lack of reasonable diligence in bringing the document forward.

However, after reviewing the evidence, the court concluded that exhibit H was not an authentic document.

The motion to alter the previous judgment was dismissed, and the original remediation timetable remained in effect.

The plaintiffs brought a motion to certify a class action against several manufacturers of lithium-ion batteries, alleging a price-fixing conspiracy that artificially inflated prices for direct and indirect purchasers in Canada.

The court certified the action solely for the statutory cause of action under section 36 of the Competition Act.

The court excluded 'umbrella purchasers' (those who bought from non-defendants) from the class, finding it plain and obvious they lacked a cause of action due to indeterminate liability and lack of restitutionary basis.

The court also declined to certify the common law claims for unlawful means conspiracy and unjust enrichment, holding that they were precluded by the comprehensive statutory scheme of the Competition Act.

The remaining certification criteria were met for the statutory claim.

The court heard a motion to settle the order resulting from a previous finding of contempt and sentence against the plaintiff.

The court resolved disputes over the preamble, prayer for relief, and specific paragraphs of the draft order.

The court also clarified the calculation of funds to be disbursed from the defendants' counsel's trust account to the plaintiff, determining the final amount to be $35,986.77, and set the date from which interest should be calculated.

Both parties were ordered to bear their own costs for the motion.

The respondent brought a motion to strike the applicant's pleadings and a separate motion for contempt, both based on substantially similar allegations of breaching court orders.

The applicant brought a motion to stay the motion to strike pending the disposition of the contempt motion, arguing that responding to the motion to strike would effectively compel him to testify and violate his right against self-incrimination in the quasi-criminal contempt proceeding.

The court agreed, finding that the applicant's right to a fair trial on the contempt motion would be prejudiced if he were forced to respond to the civil motion to strike first.

The court ordered the motion to strike stayed pending the resolution of the contempt motion.

The defendants brought a motion for various relief, including amending their pleadings and removing a certificate of pending litigation, while the plaintiffs brought a cross-motion to strike the defence and counterclaim.

The plaintiffs were largely successful in opposing the defendants' motion.

The plaintiffs sought full indemnity costs of $11,534.35, while the defendants argued costs should be deferred to a future motion.

The court declined to defer costs, finding the defendants' motion largely unnecessary.

The court rejected the plaintiffs' request for substantial indemnity costs and fixed costs at $3,500 plus HST, payable by the defendants within 90 days.