SCJ 2016

The defendant insurer brought a motion for summary judgment to dismiss the plaintiffs' action for damages arising from a motor vehicle accident.

The plaintiff driver claimed he was cut off by an unidentified vehicle, causing him to lose control and crash into a ditch.

The insurer argued the accident was solely the plaintiff's fault and that there was no corroborating evidence of an unidentified driver as required by the OPCF-44 Family Protection Endorsement.

The court heard viva voce evidence, including from a newly discovered independent eyewitness who had called 911.

The court found the eyewitness's testimony credible and reliable, corroborating the plaintiff's account.

The insurer's motion was dismissed, and partial summary judgment was granted to the plaintiffs, declaring the accident was caused by an unidentified driver and the evidentiary requirements of the OPCF-44 endorsement were met.

Following summary judgment motions in two related solicitor negligence actions, the plaintiff sought costs against the unsuccessful defendant and requested a Sanderson or Bullock order to make that defendant liable for the successful defendant's costs.

The court awarded the plaintiff $75,000 in costs against the unsuccessful defendant, applying Rule 49.10 consequences.

The court awarded the successful defendant $40,000 in partial indemnity costs against the plaintiff.

The request for a Sanderson or Bullock order was dismissed because the plaintiff did not have a plausible case against the successful defendant and chose to start a separate action rather than add him as a co-defendant.

Following the dismissal of an application regarding the enforcement of an agreement of purchase and sale of real estate, the successful respondent sought costs on a substantial indemnity basis fixed at $25,000.

The applicant argued for partial indemnity costs of $17,423.10.

The court found the respondent's bill of costs reasonable but determined that partial indemnity was appropriate, fixing costs at $17,500.

The plaintiff brought an urgent motion for injunctive relief to require the defendants to reconnect electricity to a cottage on the plaintiff's property.

The parties reached a consent order at a case conference, leaving the issue of costs to be determined by the court.

The plaintiff sought costs on a substantial indemnity basis of $39,372.40, while the defendants argued for no costs or a maximum of $5,645.13.

The court found the motion was reasonably brought but the matter was not complicated and the costs sought were excessive.

Costs were fixed at $9,995.00 all-inclusive payable by the defendants.

The accused was charged with possession of cocaine for the purpose of trafficking, and simple possession of methamphetamine and codeine, following a traffic stop and subsequent search of his vehicle and residence.

The court found the accused guilty of simple possession of methamphetamine and codeine.

Regarding the cocaine, while the Crown presented evidence including 29.4 grams of cocaine, a digital scale, cash, and text messages, the court had a reasonable doubt about the accused's intention to traffic, partly due to his exculpatory statements to police and the absence of debt lists or cutting agents.

The accused was acquitted of possession for the purpose of trafficking but found guilty of the lesser included offence of simple possession of cocaine.

The offender was found guilty of sexual interference involving his 13-year-old niece.

The Crown sought a penitentiary term of four to five years, while the defence argued for 15 to 24 months.

The court noted the aggravating factors of breach of trust and the intrusive nature of the offence, balanced against the offender's lack of a prior record and stable employment.

The court sentenced the offender to two years' imprisonment, along with weapons prohibitions, a DNA order, and a 20-year SOIRA order.

The applicant father brought a motion to change a 2013 order granting sole custody to the respondent mother and setting child support based on an imputed income of $38,400.

The father sought to reduce ongoing support and arrears, claiming he earned significantly less.

The court imputed an income of $18,000 for 2012-2013 and minimum wage ($22,230) for 2014-2016, recalculating the arrears to $8,680 and setting ongoing support at $178 per month.

The applicant sought full recovery of her actual costs for a motion, relying on the respondent's unreasonable conduct.

The respondent did not file a response.

The court reviewed recent appellate jurisprudence on family law costs, noting the confusion caused by the decisions in Berta and Forrester.

Applying Rule 24 of the Family Law Rules and finding the respondent's conduct unreasonable, the court awarded the applicant her actual costs of $11,829.96.

The applicant father sought the return of his two youngest children to Bahrain after the respondent mother brought them to Ontario following a vacation in Pakistan.

The father had obtained a sole custody order in Bahrain without notice to the mother.

The court found that while the children were habitually resident in Bahrain, Ontario should assume jurisdiction under s. 22(1)(b) of the Children's Law Reform Act due to the family's strong connections to Ontario, evidence of domestic violence, and the discriminatory nature of Bahraini family law.

The court declined to recognize the Bahraini custody order and granted temporary sole custody to the mother.

The Crown applied to have the respondent designated a dangerous offender following convictions for multiple offences, including sexual assault with a weapon, forcible confinement, and criminal harassment against an intimate partner.

The court found that the respondent's history of escalating domestic violence established a pattern of repetitive behaviour showing a failure to restrain his behaviour and a likelihood of causing severe injury or psychological damage in the future.

The court concluded that there was no reasonable expectation that a lesser measure would adequately protect the public, designated the respondent a dangerous offender, and imposed an indeterminate sentence.

The applicant brought an application against his sister regarding the management of their incapable mother's finances under a continuing power of attorney.

The respondent had sold the mother's house and placed the proceeds in a trust account, refusing the applicant access due to allegations of prior financial mismanagement.

The court directed that the siblings must act jointly as attorneys pursuant to the Substitute Decisions Act.

The court ordered the parties to pass their accounts, open a joint investment account for the sale proceeds, maintain a joint chequing account for the mother's immediate needs, and appointed the Public Guardian and Trustee as litigation guardian for the mother.

Both parties were awarded partial costs payable from the sale proceeds.

The applicant brought a habeas corpus application seeking release from a five-year immigration detention pending deportation, along with a claim for Charter damages under s. 24(1) for alleged violations of his ss. 7, 9, 10, and 12 rights.

During the hearing, the applicant was deported to Jamaica, rendering the habeas corpus application moot.

The court proceeded to hear the Charter damages claim, finding it had jurisdiction to do so without requiring bifurcated proceedings.

Ultimately, the court dismissed the Charter claims, concluding that the lengthy detention was lawful, subject to regular review, and not grossly disproportionate or cruel and unusual, as the delay was primarily caused by Jamaican authorities' failure to issue a travel document.

The defendants were successful on a motion for leave to appeal brought by the plaintiffs in a class proceeding.

The defendants sought partial indemnity costs of $10,000, while the plaintiffs suggested $5,000 was appropriate given the motion was in writing.

The court fixed costs at $6,500 payable forthwith, considering the costs awarded on the underlying contempt motion and the merits of the leave application.

The plaintiffs, former residential tenants, sued the landlord and property managers for conversion, alleging wrongful disposal of their personal property following an eviction.

The defendants brought a motion for summary judgment to dismiss the action.

A proposed intervenor, claiming to be a subtenant, brought a motion for leave to intervene.

The court dismissed the motion to intervene, finding the proposed intervenor lacked credibility and was likely the same person as the plaintiff.

The court granted the defendants' motion for summary judgment, finding that the landlord had complied with section 41 of the Residential Tenancies Act regarding abandoned property, which barred the action.

The court also dismissed claims related to swearing false affidavits, noting no such civil cause of action exists.

Substantial indemnity costs were awarded to the defendants.

The plaintiff underwent emergency surgery performed by the defendant thoracic surgeon to repair a paraesophageal hiatus hernia.

During the operation, a bougie became stuck in the plaintiff's esophagus, and its removal caused a de-gloving injury to the esophagus.

Several weeks later, the plaintiff suffered a severe stroke.

The plaintiffs sued the surgeon for medical malpractice, alleging negligence in the performance of the surgery and that the resulting esophageal injury caused the stroke.

The court dismissed the action, finding that the surgeon met the standard of care and that the stroke was cardioembolic, caused by atrial fibrillation, and unrelated to the esophageal injury.

The applicant commenced a civil application seeking to stay ongoing criminal charges against him, alleging violations of his Charter rights.

The respondents requested the court review the application under Rule 2.1.01 of the Rules of Civil Procedure.

The court found that seeking to stay ongoing criminal proceedings via a civil claim appears to be an abuse of process on its face, as the applicant could seek relief within the criminal proceedings.

The court directed the registrar to issue a notice that it is considering dismissing the application and stayed the proceeding pending the applicant's written submissions.

The defendant estate moved to dismiss the plaintiffs' medical malpractice action for delay.

The action was commenced in 2008 regarding treatment provided in 2006.

The plaintiffs failed to answer undertakings for years and did not move the action forward.

The defendant doctor died in 2015.

The court found the delay of almost nine years to be inordinate and inexcusable, rejecting the plaintiffs' explanation that family stress prevented them from pursuing the litigation.

The court concluded that the defendant would suffer substantial prejudice due to the doctor's death, as discovery transcripts could not adequately replace his viva voce evidence on the key issues of informed consent and negligence.

The action was dismissed.

The plaintiff moved for partial summary judgment against the individual defendants, seeking to hold them personally liable for a consent judgment previously obtained against their corporation.

The plaintiff relied on personal guarantees signed by the defendants.

The defendants argued the guarantees were invalid or limited, and sought a stay of proceedings based on an arbitration clause.

The court dismissed the request for a stay, finding it was brought too late and that the oppression claim fell outside the arbitration agreement.

The court granted summary judgment, finding the 2010 personal guarantee was a continuing guarantee that rendered the individual defendants personally liable for the corporate debt.

The moving party, a newly established university, brought a motion for summary judgment in its appeal seeking a rebate of sales tax paid on construction.

The Minister of Finance had denied the rebate on the basis that the moving party was a 'university' under the relevant regulation, which excluded universities receiving provincial financial assistance.

The court found that during the rebate period, the moving party's authority to grant degrees came from Ministerial consent rather than an Act of the Assembly.

Therefore, it did not meet the strict statutory definition of a 'university' and was entitled to the rebate.

The bankrupt, a lawyer, made an assignment in bankruptcy but concealed it for years while an estate trustee sued him for breach of fiduciary duty and misappropriation, eventually obtaining a default judgment.

The bankrupt later sought to rely on the automatic stay of proceedings under the Bankruptcy and Insolvency Act to avoid the judgment and subsequent costs orders.

The court dismissed the bankrupt's motion and granted the estate trustee's motion, finding that the claim was too remote and speculative to be a provable claim in bankruptcy.

Alternatively, the court held the debt would survive bankruptcy under s. 178 due to the bankrupt's misappropriation while acting in a fiduciary capacity, and that it would be equitable to lift the stay under s. 69.4 given the bankrupt's egregious conduct.