SCJ 2015

A law firm brought a motion to set aside an Order of Assessment issued in favour of its former client, arguing the client requisitioned the order outside the 30‑day period under the Solicitors Act.

The client opposed the motion and cross‑moved for production of time dockets and trust and client ledgers, and alternatively sought a finding of special circumstances under s. 11 of the Solicitors Act.

The court found the client had not received the final invoice until April 2014 and therefore requisitioned the assessment within the statutory period.

The court also held that the absence of time allocations, the potential premium in the bill, and the law firm’s reluctance to disclose dockets constituted special circumstances warranting assessment even though the account had been paid.

The motion to set aside was dismissed, production was ordered, and the matter was directed to proceed to assessment.

The father brought an urgent motion seeking to prevent the mother from relocating with the parties’ young child outside Simcoe County and moving to Manitoba.

The parties had joint custody with the child’s primary residence with the mother, and the father exercised limited weekly access.

The court considered interim mobility principles and the child’s best interests, including the mother’s need to relocate due to the sale of her residence and her lack of local support.

While the court permitted the mother to relocate within Ontario to obtain family support and financial stability, it declined to allow an interim move to Manitoba because it would fundamentally alter the existing access regime and create a new status quo before trial.

The father’s request to restrict relocation within Ontario was dismissed, but the mother was prohibited from leaving Ontario pending further court order.

An application was brought by family members seeking appointment as guardians of property and personal care for an elderly individual alleged to be incapable due to dementia and declining living conditions.

Medical evidence from the long‑time family physician and a geriatric assessment confirmed significant cognitive impairment and inability to manage finances, medications, and personal care.

The court found the respondent incapable under the Substitute Decisions Act and determined that guardianship was necessary for both property and personal care.

The applicants were appointed joint guardians, the respondent’s prior powers of attorney were terminated, and authority was granted to enlist police assistance if necessary to secure the respondent’s safety and relocation.

Security for the guardianship was waived initially unless assets exceeded a specified threshold.

The applicant brought a motion to modify prior parenting arrangements, seeking authority over major decisions affecting the child, including schooling, daycare, and primary residence.

The dispute concerned which school the child should attend for the 2015–2016 school year, as well as daycare placement and interim primary residence.

The court applied the best interests of the child analysis under s. 24 of the Children's Law Reform Act and considered extensive evidence regarding the child’s special needs, including autism spectrum disorder and ADHD.

Emphasizing the importance of stability and routine for a child with special needs, the court concluded that a further school change immediately before the start of the school year would not be in the child’s best interests.

The court ordered that the child continue attending the existing school and daycare, with primary residence remaining with the father on an interim basis pending the final decision.

The registrar issued a Status Notice as the plaintiff's action for long-term disability benefits had not been set down for trial within two years.

The plaintiff requested a Status Hearing to show cause why the action should not be dismissed for delay.

The delay was largely due to the plaintiff's counsel losing contact with him and the complexity of parallel tort and WSIB proceedings.

The defendant insurer had also counterclaimed for an overpayment based on a WSIB offset.

The Master found the plaintiff's explanation for the delay acceptable and noted no non-compensable prejudice to the defendant, particularly since the counterclaim relied on the same factual matrix.

The action was permitted to proceed.

The father brought a motion seeking primary care of the parties’ child after the child had temporarily resided with him during the mother’s attempt to relocate for employment.

The mother brought a cross‑motion seeking the child’s return to her care pending determination of the father’s motion to change an earlier custody order.

The court found that the prior final order granting the mother sole custody represented the legal status quo and that the temporary residence arrangement with the father was intended to be temporary under the parties’ agreement.

Applying the best interests of the child under s. 24 of the Children’s Law Reform Act, the court concluded the child should return to the mother’s care until the motion to change is determined on the merits.

The respondent father brought motions to find the applicant mother in contempt of court for breaching a temporary order prohibiting her from moving the children out of Simcoe County, and to restrain her from moving to Niagara Falls pending a motion to change.

The court found the mother in contempt for wilfully disobeying the order, but imposed no penalty as she had purged her contempt by returning the children.

The court dismissed the motion to restrain the move, finding that the mother's relocation to Niagara Falls was in the best interests of the children, provided she facilitate the father's access.

In a motor vehicle accident action, the plaintiff sought damages after a multi-vehicle collision and later moved to add the lessee of a rented vehicle as a defendant after the expiry of the two‑year limitation period.

The added defendant brought a summary judgment motion asserting the claim was statute‑barred.

The court held that the defendant’s failure to oppose the earlier motion to add him as a party did not estop him from raising a limitation defence.

Applying the discoverability provisions of the Limitations Act, 2002, the court found the plaintiff failed to exercise reasonable diligence in identifying the lessee despite knowing the vehicle was rented.

The evidence demonstrated minimal investigative steps within the limitation period.

The action against the lessee was therefore dismissed as statute‑barred.

In a wrongful dismissal and Human Rights Code action, the plaintiff sought leave under Rule 31.03(2)(b) of the Rules of Civil Procedure to examine a second corporate representative of the defendant.

The initially examined representative had not reviewed a large disability insurer file produced in the litigation and lacked knowledge of communications with the insurer.

The court held that requiring numerous undertakings from an unprepared witness would cause undue expense and inefficiency.

Because another corporate officer had direct knowledge of the relevant communications, leave to conduct a limited second discovery was appropriate.

The examination was restricted to questions arising from the insurer’s long-term disability file and capped at 1.5 hours.

The plaintiff brought a motion under section 103 of the Courts of Justice Act and Rule 42.01 of the Rules of Civil Procedure seeking leave to issue a certificate of pending litigation over residential property allegedly transferred to defeat creditors.

The court found the plaintiff demonstrated a high probability of success on its guarantee claim against the individual defendant following the corporation’s default.

Evidence suggested the transfer of the property to the defendant’s spouse for no consideration bore several badges of fraud, including the intention to place assets beyond the reach of creditors while continuing to benefit from the property.

The court concluded the balance of convenience favoured preserving the property pending resolution of the action.

Leave to issue the certificate of pending litigation was granted and a litigation timetable was imposed.

Following a jury conviction for sexual assault, the accused applied for a mistrial based on alleged inconsistencies between the complainant’s trial testimony and her victim impact statement, arguing the differences supported an honest but mistaken belief in consent.

The court first considered whether it had jurisdiction to declare a mistrial after a jury verdict and the discharge of the jury.

Relying on appellate authority, the court held that a trial judge is generally functus after a jury verdict and may only intervene in very narrow circumstances, such as where the jury did not deliver the verdict it intended or where the defence of entrapment arises.

Neither exception applied.

The court concluded it lacked jurisdiction to declare a mistrial and dismissed the application.

The accused applied under s. 24(2) of the Charter to exclude evidence obtained after police conducted a warrantless entry into their apartment while investigating suspected animal cruelty.

Officers forcibly entered despite the occupant repeatedly demanding a warrant and despite the absence of ongoing sounds indicating distress.

The court held that exigent circumstances did not exist and that the Crown failed to justify the warrantless search under s. 8 of the Charter.

Statements made by one accused prior to entry were admissible, but statements by the other accused obtained while she was effectively detained without being advised of her right to counsel violated s. 10(b).

Applying the Grant framework, the court excluded the dog, the presence evidence, and the improperly obtained statement.

The applicant father brought a motion to vary a prior order by declaring that an adult daughter with disabilities was no longer a “child of the marriage” under the Divorce Act and by terminating the parties’ obligation to maintain life insurance for her benefit.

The evidence showed that the adult child had lived independently since 2003, maintained full-time employment with benefits, managed her own finances and accumulated substantial savings.

The court held that despite ongoing disabilities and some parental assistance, the adult child had successfully withdrawn from parental charge.

This constituted a material change in circumstances under s. 17 of the Divorce Act and s. 14 of the Federal Child Support Guidelines.

The court declared that the adult child was no longer a child of the marriage and vacated the life insurance obligation securing support.

Former students of a residential school brought a Request for Directions under the Indian Residential Schools Settlement Agreement alleging breaches of disclosure obligations in the Independent Assessment Process.

The court previously granted limited relief requiring additional document searches by the RCMP but dismissed most other requested remedies.

In this costs endorsement, the applicants sought full indemnity costs of approximately $95,000, arguing that claimants raising reasonable issues under the settlement framework should recover their legal costs regardless of outcome due to access to justice concerns.

The court held that while the applicants achieved only limited success, they were entitled to some compensation for raising a significant disclosure issue requiring judicial determination.

Exercising discretion in light of the unique context of the settlement agreement, the court awarded reduced costs.

The defendant insurer brought a motion to strike part of a statement of claim that pleaded the defendant’s revenue and assets in support of a claim for punitive damages arising from the alleged wrongful cancellation of a life insurance policy.

The court considered Rules 25.06(1) and 25.11(b) of the Rules of Civil Procedure.

Applying the principles from Whiten v. Pilot Insurance Co., the court held that a defendant’s financial circumstances are only relevant to punitive damages in limited circumstances, none of which were pleaded.

Because no link was alleged between the defendant’s financial strength and the alleged misconduct, the pleading was irrelevant and risked expanding discovery unnecessarily.

The impugned sentence was therefore struck as frivolous and vexatious.

The judgment creditors appealed a master's order dismissing their motion to compel a corporate officer to attend an examination in aid of execution.

The master held that because the creditors had commenced a related action against the officer and others alleging fraudulent asset transfers, the right to conduct an examination in aid of execution had merged into the new action.

The court held that this principle applied only to examinations of third parties and not to examinations of a corporate judgment debtor through its officers under Rule 60.18(2) and (3) of the Rules of Civil Procedure.

The master therefore erred in law by concluding the creditors lost their entitlement to examine the corporate representative.

The appeal was allowed and an order was made requiring the officer to attend for examination in aid of execution.

The moving party brought an interim motion within a motion to change seeking to prevent the child’s relocation and requesting that the child remain enrolled in her current school pending determination of the motion to change.

The responding parent intended to move approximately one hour away and enroll the child in a different school.

The court held that the evidentiary record, consisting primarily of conflicting affidavits, was insufficient to justify an interim change of custody or relocation affecting the existing parenting schedule.

Given the existing joint custody order and the child’s long-standing residence with the responding parent, the court declined to vary the custody arrangement on an interim basis.

The responding parent was ordered to maintain the child’s residence within the existing school attendance boundaries to preserve stability pending further proceedings, and the Office of the Children’s Lawyer was requested to assist.

The accused brought a pre‑trial Charter application seeking exclusion of cocaine discovered during a warrantless search following his arrest for possession for the purpose of trafficking.

He alleged violations of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms, arguing police lacked reasonable and probable grounds to arrest him and that the resulting search was unlawful.

The court held that the arresting officer had both subjective and objectively reasonable grounds based on a reliable confidential informant, corroborating police investigation, and surveillance consistent with drug trafficking activity.

Because the arrest was lawful, the subsequent search of the accused’s person was a valid search incident to arrest.

The court therefore found no Charter breaches and declined to exclude the evidence.

The offender was convicted by a jury of sexual interference involving a child under the age of 16, with the sexual assault count conditionally stayed under the Kienapple principle.

The court determined at sentencing that the evidence established two incidents of sexual touching of a very young child but that the Crown had not proven beyond a reasonable doubt that the offences occurred after legislative amendments increasing the mandatory minimum penalty.

Applying sentencing principles emphasizing denunciation and deterrence for offences involving abuse of children and breach of trust, the court considered aggravating factors including the victim’s age and the offender’s position of trust, as well as mitigating factors such as the offender’s lack of criminal record, positive background, and some indications of remorse.

After reviewing comparative authorities, the court concluded that a custodial sentence of 14 months was appropriate, followed by probation and several ancillary orders including SOIRA registration and a weapons prohibition.

The responding mother brought a motion to change a 2005 final order respecting child support and section 7 expenses.

She sought retroactive child support and contributions toward the adult children’s university expenses.

The court found material change based on increased parental incomes and the children’s enrolment in post‑secondary education.

Applying the principles governing retroactive support, the court limited retroactivity to three years prior to the motion and rejected allegations that parent‑child alienation justified denying support.

The father was ordered to pay arrears for education and section 7 expenses and ongoing limited support for one child until April 2016.