SCJ 2016

The plaintiffs sought court approval to certify a class action for settlement purposes and to approve the settlement and legal fees.

The class action, limited to specific pelvic mesh products (Avaulta, Align, Ajust), was certified for settlement.

The court approved the $2.475 million settlement after class counsel provided sufficient information demonstrating its reasonableness, addressing initial judicial concerns about the lack of detail.

Legal fees of $742,500 (30% contingency) plus disbursements and taxes were also approved, consistent with the court's principled approach to class counsel compensation.

Lixo Investments Limited applied for relief concerning demolition work by FCHT Holdings on an adjacent property, particularly regarding a shared party wall damaged by a prior fire.

The application sought damages for loss of use and reconstruction costs, alleging FCHT was responsible for pre-acquisition fire effects and negligent demolition.

The court dismissed claims related to pre-acquisition events, finding FCHT did not inherit prior tortious conduct.

For claims regarding FCHT's demolition work and its impact on the party wall, the court found material facts in dispute requiring viva voce evidence and expert testimony.

Consequently, the balance of the application was converted into an expedited action for trial.

The Crown sought to quash the preliminary inquiry judge's decision to discharge the respondent, Justin Allison, on firearms and drug charges via a certiorari application.

The police found a loaded firearm, drugs, and Allison's identification in an apartment he was seen entering with a key.

The preliminary inquiry judge found the evidence of Allison's knowledge and control over the contraband to be speculative.

The Superior Court, reviewing for jurisdictional error, affirmed the preliminary inquiry judge's decision, emphasizing the limited scope of review and that occupancy alone is insufficient to establish knowledge.

The application was dismissed.

The Applicant father brought a custody/access motion, which became complicated by his inclusion of irrelevant and humiliating nude photographs and "sexting" materials of the Respondent mother.

The court struck these materials and found the Applicant's actions constituted bad faith.

While there was divided success on the parenting issues, with the Respondent achieving greater success, the Applicant was ordered to pay costs.

The court considered the principles of costs, including partial indemnification, encouraging settlement, and sanctioning inappropriate behaviour.

The Applicant's bad faith conduct specifically impacted the costs award.

York University sought leave to appeal an order dismissing its motion to strike a former student's breach of contract claim.

The student alleged a breach of contract related to a course grade from 2006-2007, specifically the failure to return assignments and explain the grade.

The motion to strike was based on the claim being statute-barred and failing to disclose a reasonable cause of action within academic discretion.

The court granted leave to appeal, finding reason to doubt the correctness of the motions judge's decision on both the limitation period, particularly whether repeated requests for redress could perpetually extend it, and the sufficiency of the contractual pleadings to demonstrate the university acted beyond its academic discretion.

Nuzhat Mamoon was charged with fraud exceeding $5,000, contrary to s. 380(1)(a) of the Criminal Code of Canada.

The Crown alleged that Mamoon defrauded eight individuals by making false representations about investment opportunities in non-existent businesses (catering, laptop sales, fashion shows) and a property transfer, promising unrealistic and guaranteed profits.

The court found Mamoon guilty, concluding that she intentionally used deceit and falsehood to obtain funds from vulnerable, financially unsophisticated individuals, often leveraging her charitable organization to gain trust.

The total amount defrauded from the complainants exceeded $5,000.

The Crown applied mid-trial to admit text messages between the two accused, previously ruled inadmissible, arguing that defence cross-examination had "opened the door" by asserting lack of planning, good character, or lack of knowledge of the "Eliminator." The accused opposed, citing prejudice and lack of material change in circumstances.

The court denied the Crown's application, finding no material change in circumstances to warrant reconsideration of the prior ruling, and that the probative value did not outweigh the significant prejudice, especially given the potential for references to another alleged murder.

Limited exceptions were made for cross-examination if the accused testified on specific points.

The defendant, Liban Omar, charged with first degree murder, sought to admit expert psychological evidence from Dr. Marc Patry regarding false confessions and "Mr. Big" operations during a voir dire concerning the admissibility of Omar's statements to undercover officers.

The court applied the Mohan and Abbey tests for expert evidence admissibility, finding that while Dr. Patry was qualified and the evidence logically relevant, it was not necessary to assist the jury.

The court concluded that the dangers of "Mr. Big" confessions could be adequately addressed through jury instructions, as established by Supreme Court of Canada jurisprudence in R. v. Hart and R. v. Mack, and was bound by R. v. Osmar.

The expert evidence was deemed unnecessary and therefore inadmissible.

The applicant, Best Theratronics Limited, sought leave to appeal to the Divisional Court from an interlocutory order denying an injunction that would compel the respondent, Canadian Nuclear Laboratories Limited (CNL), to continue supplying irradiated cobalt.

The motion judge had applied the three-part test for injunctions, finding a serious issue to be tried but concluding that irreparable harm was not substantiated and the balance of convenience favoured CNL due to the applicant's substantial payment arrears.

The court, applying Rule 62.02(4) of the Rules of Civil Procedure, found no conflicting decisions on the issues pertaining to injunctions in supply agreements and no good reason to doubt the correctness of the motion judge's discretionary order.

The court also noted the applicant's failure to expedite the pending arbitration.

Consequently, the motion for leave to appeal was dismissed.

The accused, Phillip Joseph (P.J.), was convicted of second-degree murder and faced a sentencing hearing to determine whether an adult or youth sentence was appropriate.

P.J. was 17 at the time of the offence.

The court considered the seriousness of the offence, the accused's role, age, maturity, mental disorders (Generalized Anxiety Disorder, Major Depressive Disorder, Cannabis Use Disorder), and progress in custody.

Despite some positive developments in custody, the court found that the presumption of diminished moral blameworthiness was rebutted and that a youth sentence would not be of sufficient length to hold the young person accountable or ensure public protection and rehabilitation, given the severity of the crime and the uncertainty of treatment success.

The plaintiff, a construction manager, moved for an order to compel the appointment of an expert to determine if project delays constituted a "material change in scope" under the contract, which would entitle them to additional compensation beyond a fee cap.

The court dismissed the motion, finding that delay itself was not a change in scope as defined by the contract, but rather a consequence.

The court also held that the specific dispute regarding materiality had not yet crystallized, rendering the motion premature, and declined to grant leave under the Construction Lien Act in the current circumstances.

The plaintiff filed an 83-page fresh statement of claim following a prior order that dismissed her action against all but two defendants and directed her to limit her claim to a slip and fall accident.

The fresh claim continued to allege a vast criminal conspiracy involving numerous individuals, including politicians and judges.

The court found the fresh claim appeared frivolous, vexatious, or an abuse of process, and directed the registrar to issue a notice under Rule 2.1.01 for the plaintiff to show cause why the action should not be dismissed.

The action was stayed pending the outcome.

The plaintiff moved to vary a timetable order and extend the date to set the action down for trial, while the defendant brought a cross-motion to dismiss the action for delay.

The action had previously been dismissed for delay and restored with a strict timetable, which the plaintiff breached.

The court found the plaintiff's delay in producing an expert report on damages was intentional, contumelious, and largely unexplained, exacerbated by the undisclosed destruction of their financial records prior to commencing the action.

The plaintiff's motion was dismissed, and the defendant's motion to dismiss the action for delay was granted.

The applicant mother brought a motion seeking historical child support arrears and an order for the respondent father to add the children as beneficiaries to his employee benefits.

The father sought to suspend child support due to unemployment and argued for reduced support during periods when one child attended a residential school and during an alleged period of joint shared custody.

The court found that the father failed to establish a material change in circumstances to reduce child support during the academic terms, distinguishing the case from situations involving adult children in post-secondary education and reaffirming that residential school attendance does not automatically trigger the 40% shared custody rule.

The court also found no agreement for joint custody during the disputed three-month period in 2014.

The father was ordered to pay $18,927 in arrears.

Issues regarding ongoing child support from January 2015 and annual review provisions were adjourned.

This trial concerned the quantum and duration of spousal support for a long-term marriage (37 years).

The applicant sought $2,000 per month indefinitely or a $200,000 lump sum, while the respondent argued for minimal support and repayment of alleged overpayments.

The court found the respondent had substantially underpaid spousal support and equalization post-separation, leading to the applicant's economic disadvantage.

Considering the significant disparity in assets and means, the court awarded the applicant a lump sum payment of $200,000 and dismissed the respondent's claim for repayment.

The applicant challenged the voluntariness of statements made to police and alleged breaches of sections 9, 10(a), and 10(b) of the Charter.

The court found that the statements were voluntary and that there were no breaches of sections 10(a) or 10(b).

However, the court found a breach of section 9 due to an arbitrary detention, as the arrest was premature and lacked reasonable and probable grounds.

Applying the R. v. Grant test under section 24(2) of the Charter, the court determined that the admission of the evidence (utterances and handgun) would not bring the administration of justice into disrepute, given the minor nature of the Charter breach, the voluntary nature of the statements, and society's interest in the adjudication of serious firearms offences.

The application to exclude the evidence was denied.

The offender was convicted of two counts of trafficking marijuana.

He was found with approximately 10 kilograms of marijuana in his vehicle and half a kilogram at his home.

The court considered his prior record for the same offence and that he was on probation at the time.

Mitigating factors included his genuine remorse, his bipolar disorder diagnosis, and the stringent bail conditions he endured.

The court sentenced the offender to 9 months in custody, less credit for pre-sentence custody, followed by two years of probation.

This costs endorsement follows a hybrid trial where the applicants were largely successful against several respondents concerning an invalid power of sale, but unsuccessful against Ginkgo Mortgage Investment Corporation.

The court awarded partial indemnity costs to the applicants against the unsuccessful respondents, with a several order for payment.

The court also fixed partial indemnity costs payable by the applicants to Ginkgo, declining to issue a Sanderson order after applying the two-step test.

QA Consultants (QAC) sought to assess legal fees billed by Hicks Morley Hamilton Stewart Storie LLP (Hicks Morley).

The core dispute was whether a prior agreement, reached via email, to cap Hicks Morley's fees at $75,000 for work up to May 15, 2013, precluded assessment of that specific portion of the fees.

The court found that a valid and reasonable settlement agreement regarding the initial $75,000 in fees had been reached between QAC's managing partner and Hicks Morley's partner.

Consequently, only the fees incurred after May 15, 2013, totaling $81,029.07, were subject to assessment under the Solicitors Act.

The parties separated after a high-conflict marriage.

The children resided primarily with the mother and became estranged from the father.

The father sought a 90-day custody reversal to repair the relationship, alleging parental alienation, while the mother sought to relocate with the children to Arizona.

The court found the children were unjustifiably rejecting the father and that the mother had failed to facilitate their relationship.

The court denied the custody reversal but ordered joint custody with a strict access schedule for the father, and denied the mother's mobility application.

The court also resolved financial issues, valuing the father's professional building at $600,000 and ordering him to pay retroactive and ongoing child and spousal support.