SCJ 2016

Prior to a first-degree murder trial, the defence brought an application to permit the in-custody accused to sit at counsel table rather than in the prisoner's box.

The Crown opposed the application, citing institutional incident reports demonstrating the accused's history of violence and non-compliance while in custody.

The court dismissed the application, finding that the incident reports established a significant risk to courtroom security.

The court also noted that security concerns were heightened due to anticipated hostility between the accused and certain Crown witnesses.

The owner, 2247129 Ontario Inc., brought a motion to declare the construction lien of Clarkway Construction Ltd. expired.

The central issue was whether a subcontractor's lien rights could extend beyond the date the general contractor's contract with the owner ended by abandonment or termination.

The court found that the subcontractor's lien rights did not extend beyond the termination date of the general contract (February 9, 2016, at the latest).

The subcontractor, Clarkway, had a responsibility to stay informed about the project's status.

Since Clarkway registered its lien on April 15, 2016, more than 45 days after the general contract's termination, the lien was declared expired.

Costs were awarded to the owner.

The Children's Aid Society brought a motion for summary judgment in status review proceedings concerning a child, T.E., seeking a custody order for the child's godfather and his wife (J.T. and S.T.) and reasonable access for the mother (S.E.) subject to the child's wishes.

The mother opposed the specific access terms and sought joint custody.

The court granted the summary judgment motion, finding no genuine issues for trial regarding custody or access.

Custody was awarded to J.T. and S.T., and the mother was granted reasonable access subject to the child's wishes, with the caregivers encouraged to facilitate contact.

The decision emphasized the child's best interests, his clear wishes, and the need for finality and permanency.

This family law trial involved a separated cohabiting couple with one child, addressing issues of custody, access, child and spousal support, and division of property.

The court found the respondent's financial disclosure inadequate and dishonest, imputing an income of $150,000/year to him.

The applicant was granted sole custody, with the respondent receiving specified access.

No spousal support was awarded as both parties were deemed self-supporting.

Child support was ordered at $1263/month plus $500/month for section 7 expenses, with 10 years of future support secured from the respondent's share of the notional proceeds from the sale of the jointly owned home, due to his history of non-compliance.

The jointly owned property was valued, and various adjustments were made to the parties' respective shares.

This endorsement addresses the costs of a prior motion where the defendants were partially successful in striking out "campaign of defamation" allegations from the plaintiffs' Amended Statement of Claim, while the plaintiffs successfully opposed striking out pleas of malice.

The defendants sought $15,000 in partial indemnity costs.

The court, applying Rule 57.01 and considering the "fair and reasonable" principle, found that despite divided success, the "campaign of defamation" allegations were a principal issue where the defendants' position was validated.

The court awarded the defendants $11,500 in all-inclusive costs, payable by the plaintiffs.

The plaintiffs, DK Manufacturing Group Ltd. and S.G. Investments Group Ltd., sought insurance proceeds and damages for bad faith from Co-operators General Insurance Company following a fire and water damage incident.

Co-operators brought a motion for partial summary judgment, arguing that the claims for insurance monies were resolved by a binding appraisal process and that a one-year contractual limitation period barred other claims.

The court found that Form AB, containing contractual statutory conditions including a one-year limitation period and appraisal process, applied to both policies.

The appraisal awards were binding, dismissing claims for further insurance monies.

However, the one-year contractual limitation period did not apply to the extra-contractual bad faith claims, which are governed by the two-year limitation period under the Limitations Act, 2002.

The plaintiff sought an order prohibiting the defendant, Rosen Ridge Farms Ltd., from pursuing an upcoming motion to set aside a trial judgment unless outstanding costs orders were satisfied and security for costs for the new motion was posted.

The court found that Rosen Ridge had repeatedly failed to comply with previous costs orders and that its claim of impecuniosity was not valid given its shareholder's refusal to post security.

The court ordered Rosen Ridge to pay $47,000 in outstanding costs and post $40,000 as security for costs by June 30, 2016, failing which its motion to set aside the trial judgment would be automatically dismissed.

The plaintiff, True North Vantage Inc., brought a motion seeking relief from the deemed undertaking rule to disclose evidence gathered during discoveries to the Hamilton Police Service, alleging that the defendant Steven Zhen Pang committed perjury.

The defendants resisted the motion, arguing issue estoppel or abuse of process, as a privy of the plaintiff had previously sought and been denied the same relief.

The court dismissed the motion on the grounds of issue estoppel, finding that the issue had been finally decided in prior proceedings involving the plaintiff's affiliate, Orbixa, and that the plaintiff was attempting to re-litigate the matter.

The court also found the motion constituted an abuse of process, noting it appeared to be a collateral attack on previous decisions and an attempt to gain leverage.

The defendant, K & S Temporary Medical Services Inc., moved to strike the Fresh as Amended Statement of Claim.

This was the sixth pleading motion in an action commenced in 2009, with the plaintiffs, represented by Helen Cerqueira, repeatedly failing to produce a compliant pleading despite extensive judicial guidance from multiple judges.

The court found the latest pleading still fundamentally unworkable, lacking clarity, organization, and specificity regarding duties, breaches, and damages.

Given the history of non-compliance and a prior 'last chance' order, the claim was struck without leave to amend.

The applicant father sought to amend a separation agreement to obtain joint custody and specific summer access for his two daughters.

The respondent mother opposed, proposing an alternative access schedule based on the children's best interests, citing ongoing conflict and the father's alleged attempts to involve the children in disputes.

The court dismissed the father's motion for summer access, finding his request was based on a sense of entitlement rather than the children's best interests, and adopted the mother's liberal access proposal.

The court also renewed a request for the Office of the Children's Lawyer to become involved.

The applicant brought a motion to find the respondent in civil contempt of court for allegedly breaching a consent order.

The order required the respondent to purchase a certified, e-tested car with a book value of not less than $5,000 for the applicant.

The applicant argued the provided car was appraised at $500, while the respondent, who is in the car business, testified that the value of the car plus the parts and his labour exceeded $5,000.

The court dismissed the motion, finding that the elements of civil contempt, including clear and unequivocal terms and wilful disobedience, were not established beyond a reasonable doubt.

The plaintiff sought costs following the defendant's unsuccessful motion for a stay of proceedings.

The plaintiff requested $29,073.51, including substantial indemnity costs based on an Offer to Settle.

The defendant argued the costs were excessive and proposed $10,000.00, also seeking a credit for prior interlocutory motions.

The court found the plaintiff was entitled to costs on a partial indemnity scale, rejecting the substantial indemnity claim because the Offer to Settle did not represent a substantive compromise.

The court also declined to award costs for prior procedural motions due to insufficient information regarding success.

Ultimately, the court awarded the plaintiff $12,847.38, inclusive of fees, HST, and disbursements, deeming this amount fair and reasonable in the circumstances.

The plaintiff sued multiple defendants, including Suncor Energy Inc., for damages arising from an assault by a gas station employee.

Suncor brought a motion for summary judgment to dismiss the claim against it, arguing it was not vicariously liable for the employee of its licensee, Takbro Enterprises Limited.

The court applied the principles of vicarious liability, particularly from Bazley v. Curry, finding that the employee's wrongful acts were only coincidentally linked to Suncor's activities as a licensor.

The court determined there was no genuine issue requiring a trial regarding Suncor's vicarious liability and granted Suncor's motion for summary judgment, dismissing the action against it.

The accused, charged with first-degree murder, brought pre-trial applications to exclude audio files found on his Blackberry cell phone.

The files contained rap lyrics referencing a firearm of the same calibre as the murder weapon.

The accused argued that the seizure of the phone, the search warrant, and the delayed report to a justice violated his s. 8 Charter rights.

The court found no Charter breach in the initial seizure or the type of warrant used.

Although the Crown conceded a breach regarding the delayed report to a justice, the court declined to exclude the evidence under s. 24(2) of the Charter.

The court also upheld the validity of the search warrant and found the probative value of the rap lyrics outweighed any prejudicial effect.

The applications were dismissed.

The applicant mother sought retrospective and prospective child support and section 7 expenses from the respondent father.

The court imputed income to the father due to problematic rental business accounting and delayed application for disability benefits.

The court ordered prospective guideline child support, a percentage of future section 7 expenses, and a lump sum for retrospective support and expenses, while deferring the determination of post-secondary expenses as premature.

The plaintiff, Paula Lloyd, brought a motion seeking to enforce a debt against the defendant, Winners Apparel Ltd. The court found that previous judgments, one in the plaintiff's favour and one for costs against her, resulted in a set-off, leaving no amount owing by the defendant.

Furthermore, the plaintiff's prior bankruptcy in 2009 meant any debt would have vested in her Trustee, and she provided no evidence of the debt being reconveyed to her upon discharge.

Consequently, the plaintiff had no right to enforce the debt.

The motion was dismissed, and the defendant was awarded $4,000 in costs.

This voir dire ruling addresses the admissibility of inculpatory statements made by Joshua Barreira to police following his arrest for first-degree murder.

The defence argued the statements were involuntary due to police oppression (cold, sickness, hunger, exhaustion, denial of right to silence) and inducements related to his wife and brother's arrests.

The court found no oppression, noting Barreira was a "savvy and experienced individual" who understood his rights and repeatedly attempted to negotiate a deal.

The court also determined that the idea of a false confession to protect family members was self-generated by Barreira, and the police officer's actions did not constitute improper inducements.

Consequently, the statements were deemed voluntary and admissible at trial, subject to editing out references to Barreira's criminal record.

The mother brought a motion seeking temporary care and custody of her three special needs children and permission to relocate them from Ottawa to London, Ontario.

The Children's Aid Society and the father opposed the motion, arguing that there had been no material change in circumstances since a previous order placed the children in the father's care.

The court dismissed the mother's motion, finding that she failed to demonstrate a material change in circumstances requiring an interim change in the children's placement.

Many of the allegations raised by the mother were found to have been previously considered.

The representative plaintiff, Fanshawe College, sought to amend the class definition in a certified class proceeding alleging price-fixing of LCD panels.

Two amendments were proposed: a broad "all purchasers' amendment" to include all direct and indirect purchasers, and an "alternative amendment" to expand the list of named OEMs and distributors.

The court denied the "all purchasers' amendment," finding it an abuse of process as it attempted to re-litigate an issue previously abandoned and decided by the certification judge.

However, the court granted the "alternative amendment," as it was specifically contemplated by the certification judge and the claims were not found to be time-barred.

O.P., suffering from end-stage glioblastoma, applied for a declaration that his planned physician-assisted death was permitted by law under the criteria established in Carter v. Canada (Attorney General), 2015 SCC 5.

The applicant argued that court authorization was not legally required but sought a declaratory order for practical reasons due to healthcare providers' concerns about civil, criminal, or disciplinary liability, and issues with the Coroners Act.

The court rejected the premise that physician-assisted death was permissible without court order pending federal legislation, asserting that judicial authorization remained a constitutional remedy under s. 24(1) of the Constitution Act, 1982 to ensure the rule of law and safeguard vulnerable persons.

The court ultimately granted an authorization order for physician-assisted death, finding that O.P. met all the Carter criteria, and provided ancillary relief regarding the Coroners Act and Family Law Act.