SCJ 2015

The plaintiffs brought a motion seeking orders compelling a lawyer for the defendant to answer questions refused on cross-examination and granting leave to file additional affidavits in support of a pending motion to amend the statement of claim and add a proposed defendant.

The refusals were based on solicitor-client privilege.

The court held that two questions seeking factual information did not infringe solicitor-client privilege and must be answered, while a third question had already effectively been answered.

Applying Rules 1.04 and 39.02(2) of the Rules of Civil Procedure, the court granted leave to file three additional affidavits responding to issues raised on cross-examination and addressing limitation concerns relating to the discoverability of the plaintiffs’ claims.

The appellant appealed a family arbitration award that terminated a previously established education fund for the parties’ children and ordered the remaining funds returned to the parents.

The appellant argued procedural unfairness, an error in determining that the youngest adult child was not a “child of the marriage” due to disability, and a failure to apply constitutional and human rights norms requiring accommodation of disability.

The court held that the arbitrator applied the correct legal principles and reasonably concluded that the appellant had not proven the adult child met the statutory definition of “child of the marriage” under the Divorce Act at the relevant time.

The court also found no procedural unfairness in the arbitrator’s summary process and refused to admit fresh evidence regarding the child’s evolving educational plans.

The appeal was dismissed.

The defendant contractor brought a motion for summary judgment alleging the plaintiff subcontractor repudiated a contract for the supply and installation of structural steel on a retail construction project.

The plaintiff asserted the defendant wrongfully terminated the contract and claimed payment under a construction lien.

The court found numerous genuine issues requiring a trial, including whether either party fundamentally breached or repudiated the contract, whether time was of the essence where no delivery date appeared in the subcontract, whether consultant review of shop drawings was required before fabrication drawings were produced, and whether delays were attributable to the contractor or consultants.

The court also held that issues concerning the timeliness and quantum of the construction lien, damages, mitigation, and credibility disputes could not be fairly determined on a summary judgment motion.

Following a family law trial involving divorce, custody, access, travel permissions, and support issues, the court determined the applicant was overwhelmingly the successful party.

The applicant obtained divorce, sole custody, a non-removal order, travel authorization, and a restraining order, while the respondent’s claims were entirely dismissed.

Although the applicant did not succeed on spousal support, retroactive child support, or a request relating to a religious divorce, the court found the balance of success strongly favoured her.

The court fixed costs in the applicant’s favour.

The applicant sought a review of a detention order, proposing a new release plan with four new sureties, a change of residence to Brampton, and an ankle bracelet.

The court applied the Palmer criteria for new evidence and found that the new plan did not address the core issue: the applicant's inability to abide by bail conditions, having previously re-offended while on bail.

The application for release was dismissed and the detention order under s. 515(10)(b) of the Criminal Code was upheld.

The plaintiff environmental remediation company brought a motion for summary judgment seeking payment for emergency spill cleanup services following a large canola oil spill at premises owned by the defendant landlord.

The plaintiff claimed compensation on the basis of unjust enrichment and quantum meruit after the tenant who initially retained the services became insolvent.

The court held that the landlord received a clear benefit from the cleanup because the work mitigated environmental harm and reduced the risk of regulatory orders and liability under the Environmental Protection Act.

The services were requested and authorized by a director of both the tenant and the landlord, and the evidence established that the cleanup prevented significant environmental and property damage.

The court found no genuine issue requiring a trial and concluded that allowing the landlord to retain the benefit without payment would be unjust.

The accused was tried on an eleven-count indictment alleging sexual offences against a child occurring during home haircuts over multiple dates.

The court held that the evidence of the child complainant had to be assessed with regard to the common-sense approach applicable to children, while still requiring proof beyond a reasonable doubt.

The court found the complainant credible and reliable in relation to the incidents between December 26, 2012 and August 5, 2013 and the events of October 21, 2013, but found reasonable doubt regarding the allegations on August 6, 2013 because of internal inconsistencies and contradictory evidence from another child witness.

The accused was acquitted on counts 1, 2, 5, 6, and 7 and convicted on counts 3, 4, 8, 9, 10, and 11.

Following dismissal of a motion seeking additional production and answers to undertakings, the court addressed costs.

The defendants were successful and sought substantial partial indemnity costs after incurring over $17,000 in legal fees.

The court held that although the defendants were entitled to costs, the circumstances justified only a modest award because certain factual concessions were made after the cross-examinations that contributed to the dispute.

Applying principles of reasonableness and proportionality, the court fixed costs at $4,500 on a partial indemnity basis.

Payment of the award was deferred pending determination of a related summary judgment motion.

The applicant spouse brought an interlocutory motion in an uncontested family proceeding after the respondent failed to file an answer.

The court considered entitlement to interim spousal support, pension valuation, and the sale of jointly owned real properties pending trial.

Applying the Spousal Support Advisory Guidelines and considering the parties’ lengthy marriage, the respondent’s income, and the applicant’s medical inability to work, the court ordered interim spousal support.

The court also authorized the applicant to obtain the family law value of the respondent’s pension without his consent and ordered that jointly owned real properties be listed for sale under the Partition Act.

The parties entered into a joint venture to build a semi-detached home, agreeing to share construction costs and for the defendant to purchase one unit.

A dispute arose over the calculation of construction costs to be equalized on closing.

The court held that the written agreement governed, rejecting the defendant's claim of an oral agreement modifying the terms.

The court provided directions on calculating construction costs, excluding property taxes and personal labour, while including utilities up to occupancy and adjusting the credit for a settlement with a concrete contractor.

Maternal grandparents applied for court-ordered access to their grandchildren under the Children’s Law Reform Act after the parents terminated contact following family conflict and eviction proceedings.

The court reviewed the governing principles on grandparent access, emphasizing that the best interests of the child and parental decision-making authority are paramount where parents are attentive to their children’s needs.

Although the court accepted that a prior relationship existed and found aspects of the parents’ allegations exaggerated, the evidence also demonstrated significant and ongoing hostility between the adults and an incident involving secret contact that precipitated child protection proceedings.

The court concluded that the relationship between the grandparents and the children was ordinary rather than “special” and that ordering access would likely intensify conflict and place the children in the middle of adult disputes.

The application for access was dismissed, though the grandparents were permitted to send cards and gifts on special occasions.

Following a successful summary judgment motion concerning a debt dispute and alleged settlement, the plaintiff sought substantial costs for the motion and the broader action.

The court held that the defendants had unnecessarily complicated what was a relatively straightforward settlement issue through procedural steps and a counterclaim.

However, the court emphasized proportionality and the principle that the losing party should not reasonably expect to pay for two senior counsel on a relatively simple motion.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles in Boucher v. Public Accountants for the Province of Ontario, the court reduced the claimed costs and fixed partial indemnity costs for the motion.

The court deferred determination of the remaining action costs pending resolution of issues relating to the counterclaim.

Sentencing for possession of large quantities of heroin and cocaine for the purpose of trafficking, together with possession of proceeds of crime.

The court emphasized denunciation and deterrence, particularly specific deterrence, given the respondent's otherwise strong family support, business success, and lack of criminal record, but found those same circumstances showed the offences arose from greed rather than need.

A 10-year sentence was found fit in light of the scale of the drugs and the harm associated with heroin and cocaine trafficking.

The court granted 6 months' credit for restrictive bail conditions over approximately four years, resulting in a net global sentence of 9 years and 6 months, together with forfeiture of seized funds, a DNA order, and a s. 110 prohibition.

The Crown appealed an acquittal for sexual assault under s. 271 of the Criminal Code, alleging the trial judge misapprehended the evidence, erred in applying the law of consent, and rendered an unreasonable verdict.

The prosecution theory at trial was that the complainant was unconscious due to intoxication and therefore incapable of consenting.

The appellate judge held that the trial judge was entitled to assess the complainant’s credibility, draw common‑sense inferences about intoxication and unconsciousness without expert evidence, and conclude that the Crown had not proven lack of consent beyond a reasonable doubt.

The court also held that the Crown cannot appeal an acquittal solely on the ground that it is unreasonable absent another error of law.

The appeal was dismissed.

Following the granting of summary judgment dismissing a wrongful death action arising from a drowning incident, the court addressed costs.

The plaintiffs argued that no costs should be awarded due to the tragic circumstances and potential financial hardship.

The court held that while tragic circumstances and the losing party’s ability to pay may be relevant considerations, the evidence demonstrated the estate held assets exceeding approximately $1 million and the plaintiffs could reasonably anticipate a costs award.

The court therefore exercised its discretion to award partial indemnity costs for both the summary judgment motion and the action, taking into account the reasonable expectations of the parties and the principles articulated by the Court of Appeal regarding proportional and predictable costs awards.

The applicant brought a motion for interim spousal support, interim child support, and the sale of the matrimonial home, while the respondent sought interim exclusive possession of the home.

The court determined interim support based on a respondent income of $225,000 and applicant income of $25,000, applying the Spousal Support Advisory Guidelines with child support formula.

The court ordered interim child support and spousal support retroactive to the commencement of the application.

The respondent’s request for exclusive possession of the matrimonial home was dismissed, and the court ordered the home sold under the Partition Act, subject to a 30‑day opportunity for the respondent to buy out the applicant’s interest.

In an application under the Municipal Conflict of Interest Act alleging multiple contraventions, the respondents brought a preliminary motion arguing that several alleged breaches were statute‑barred because the applicant knew or ought to have known the relevant facts more than six weeks before commencing the application.

The motion was dismissed in earlier reasons.

The court then addressed costs and held that the applicant, as the successful party on the motion, was entitled to costs.

However, because the motion raised legitimate legal uncertainty regarding the interpretation of the Act’s timing provision, the court ordered partial indemnity costs payable in any event of the cause rather than forthwith.

The defendant brought a requisition under Rule 2.1 of the Rules of Civil Procedure seeking dismissal or a stay of the plaintiff’s action as frivolous, vexatious, or an abuse of process.

The plaintiff had commenced multiple similar proceedings against various parties seeking extremely large damages and advancing allegations connected to family court custody proceedings.

The court found the claim appeared to be a collateral attack on a decision of the Ontario Court of Justice and contained implausible and scandalous allegations.

The court directed that notice be given to the plaintiff that dismissal under Rule 2.1 was being considered and stayed the action pending written submissions.

The appellant appealed his summary conviction for operating a motor vehicle with a blood-alcohol concentration over 80.

He argued the trial judge failed to adequately address his argument that breath samples were not taken 'as soon as practicable'.

The Superior Court found the trial judge's reasons were legally inadequate for failing to expressly address the issue.

However, applying the curative proviso, the Court held a new trial was unnecessary because the trial record clearly established the 13-minute delay waiting for another officer to secure the appellant's vehicle was reasonable.

The appeal was dismissed.

The appellant appealed a conviction for assault with a weapon after a trial in the Ontario Court of Justice.

The primary grounds of appeal were that the trial judge erred in admitting an out‑of‑court statement of a witness for the truth of its contents and that the verdict was unreasonable absent reliance on that statement.

The Superior Court held that the trial judge properly applied the legal principles governing hearsay admissibility and threshold reliability.

Although the trial judge misstated certain words from the witness’s recorded statement, the appellate court found the misstatement related only to detail and not substance.

The evidence, taken as a whole, supported the inference that the witness observed the assault.

The appeal was therefore dismissed.