SCJ 2016

The parties made submissions regarding the costs of two prior motions dealing with parenting and child support.

The applicant sought costs on a full or partial recovery basis, while the respondent argued each party should bear their own costs due to divided success.

The court found that success was divided on both motions and that the applicant's costs were disproportionate.

The court ordered that neither party shall pay or recover costs.

Following a seven-week personal injury jury trial, the court determined post-trial adjustments to the $2.3 million verdict.

The court ruled that recent Insurance Act amendments increasing statutory deductibles applied retrospectively, but changes to pre-judgment interest did not.

Applying the 'silos of deductibility' approach, the court deducted the plaintiff's $900,000 Statutory Accident Benefits (SABs) settlement from the tort award, but apportioned the deduction 50-50 between the defendant and a non-party driver who had previously settled, matching the jury's liability finding.

The plaintiff's final judgment of $500,827 slightly exceeded the defendant's Rule 49 offer, entitling the plaintiff to costs, which the court fixed at $100,000 plus disbursements.

The accused was charged with importing cocaine after returning from Jamaica.

During a customs inspection, a positive ion scan led to further questioning and a personal search.

The Crown brought a pre-trial application to admit the accused's statements as voluntary, while the defence sought to exclude the statements and drugs due to alleged breaches of ss. 8, 9, and 10(b) of the Charter.

The court found the statements were voluntary and not the result of oppression.

However, the court held that the accused was detained when the CBSA officer began focused questioning after a second positive ion scan without providing Charter rights.

Applying the Grant framework under s. 24(2), the court excluded the accused's statements regarding a side trip to Panama made during this period of detention, but admitted subsequent statements made after rights were provided.

A case conference endorsement determining the scheduling and order of three pending motions in two related wrongful dismissal actions arising from mass lay-offs following the bankruptcy of several meat packing companies.

The court directed that the defendants' jurisdiction motion (the 'Weber' motion) and limitations motion be heard together first, prior to the plaintiffs' motion for class certification.

The plaintiff, a former employee of the Royal Bank of Canada in British Columbia, moved to Ontario and sought employment at an Ontario branch.

She alleged that a British Columbia-based employee defamed her to Ontario employees, resulting in the withdrawal of an employment offer and constructive dismissal.

The defendants moved to stay the action, arguing Ontario lacked jurisdiction and that British Columbia was the more convenient forum.

The court dismissed the motion, finding a presumptive connection to Ontario based on the tort of defamation occurring there, and held that the defendants failed to establish that British Columbia was a clearly more appropriate forum.

The applicants commenced an application seeking a compulsory purchase of their shares or winding up of the companies, along with an initial motion for an interim receiver.

After receiving financial disclosure, the applicants abandoned the initial motion and brought an amended motion for an inspector, which they later also abandoned in favour of different relief.

The respondents sought costs thrown away for the abandoned initial motion and costs for the amended motion.

The court awarded the respondents costs thrown away 'on account' and costs of the amended motion on a partial indemnity basis, noting the applicants' approach of seeking draconian relief only to abandon it caused unnecessary legal work.

The elderly tenant faced eviction for unpaid rent.

Her daughter brought an emergency motion to stay the eviction and paid the outstanding amount ordered by the Landlord and Tenant Board.

Despite being served with notice of the motion, the landlord and sheriff executed the eviction.

The court granted a retroactive stay, finding the outstanding amount was paid prior to the eviction taking place, and maintained the stay for 45 days to allow the parties to resolve the ongoing rent dispute.

The appellant appealed his conviction for 'Over 80', arguing the trial judge erred by not excluding breathalyzer results under s. 24(2) of the Charter after finding a s. 8 breach and that samples were not taken 'as soon as practicable'.

The Summary Conviction Appeal Court held that failing to take breath samples as soon as practicable deprives the Crown of the statutory presumption of identity but does not automatically violate s. 8 of the Charter.

The court upheld the trial judge's s. 24(2) analysis, finding the impact of the breach was minimal and society had an interest in adjudication on the merits.

The appeal was dismissed.

During a bifurcated trial on liability regarding TMJ implant surgeries, three mid-trial motions were brought concerning the calling of witnesses.

The defendant's motion to call Dr. Wyant was granted on consent.

The plaintiffs moved to reopen their case to call a former hospital records director regarding a spoliation claim, and to call the former chief of staff as an adverse witness.

The court allowed the plaintiffs to reopen their case to call the records director, finding no prejudice to the defendant.

The court also put the defendant to its election under Rule 53.07(1) regarding the former chief of staff, allowing the plaintiffs to call him if the defendant chose not to.

The offender was found guilty by a jury of importing 11.95 kilograms of heroin into Canada.

He acted as a courier, concealing the drugs in his suitcases.

The Crown sought a 20-year sentence, while the defence argued for 12 years, emphasizing the low purity of the heroin and the offender's status as a first-time federal offender.

The court applied the Sidhu range for heroin importation, rejecting the argument that low purity alone justified a sentence at the bottom of the range.

The offender was sentenced to 14.5 years in custody, less credit for pre-sentence custody.

The accused, charged with second-degree murder, brought an application for bail.

The Crown sought to cross-examine the accused on his mandatory affidavit filed in support of the application.

The accused objected, arguing that compelled cross-examination would violate his Charter rights against self-incrimination.

The court held that the Crown is entitled to cross-examine the accused on his affidavit, as any evidence obtained could only be used for impeachment at trial, not for substantive guilt, per Supreme Court precedent.

The accused then sought to withdraw his affidavit to avoid cross-examination and proceed with the hearing using other evidence.

The court permitted the withdrawal but dismissed the bail application, ruling that it could not proceed without the mandatory affidavit required by the Criminal Proceedings Rules.

The applicant sought continuation of a temporary restraining order against a former common law spouse under s. 46 of the Family Law Act.

The court held that the applicant had reasonable grounds to fear for her physical and psychological safety, relying on evidence of past domestic assault, later threatening conduct, the respondent's alleged criminal associations, and the respondent's knowledge that the applicant had provided information to police.

The court found the applicant's fear was legitimate and had a current relationship to more recent events, notwithstanding the age of some earlier incidents.

The restraining order was continued and the applicant, being substantially successful on the only live issue, received partial indemnity costs.

The plaintiff, a beneficiary of his grandmother's estate, brought a motion for directions and a Norwich Order against the estate trustees.

The plaintiff sought disclosure of the identity of a third party who received the bulk of the deceased's assets through a joint bank account with right of survivorship, which was funded by the sale of the deceased's home while the trustees acted under a Power of Attorney.

Applying the test for a Norwich Order, the court found the plaintiff had a bona fide claim and that disclosure was necessary in the interests of justice to determine if funds were improperly diverted.

The court ordered the trustees to disclose the identity of the joint account holder and produce all related banking documents.

The appellants appealed an arbitration decision that dismissed their claim for rectification of a unanimous shareholders' agreement.

The appellants argued that the right of first offer clause contained a mutual mistake by allowing a partial take-up of shares, and sought to rectify it to require an all-or-nothing purchase.

The arbitrator found no prior common intention to support rectification.

On appeal, the court held that the issues raised by the appellants were questions of fact or mixed fact and law, not extricable questions of law.

The appeal was dismissed with costs awarded to the respondents.

The defendants brought a motion requesting the case management judge recuse herself, alleging bias, duplicity of proceedings, and involvement in criminal activity.

The moving party failed to attend the hearing of their own motion.

The court found the allegations to be completely unsubstantiated, specious, and devoid of merit, noting that a judge's previous unfavourable ruling is not grounds for recusal.

The motion was dismissed, and costs were awarded to the responding party on a full indemnity scale due to the moving party's objectionable conduct.

The applicant children's aid society sought an order making the child a Crown ward without access.

The child was apprehended at birth due to concerns regarding the parents' intellectual limitations and lack of parenting skills, which had previously led to the apprehension of their older child.

Despite extensive support and supervised visits over two years, the parents were unable to acquire or maintain the necessary parenting skills to safely care for the child.

The court found that the parents lacked the minimal parenting capacity required and that a supervision order would not sufficiently mitigate the risk.

The child was made a Crown ward without access for the purpose of adoption.

The plaintiff was rendered a quadriplegic after the minivan he was a passenger in was struck by a vehicle driven by the defendant Ellis at an intersection.

Ellis had stopped at a stop sign rather than the faded stop line, resulting in poor sightlines, and pulled into the intersection when it was unsafe.

The court found the City of Hamilton 50% liable for failing to maintain the stop line, which created an unreasonable risk of harm.

Ellis was found 50% liable for failing to ensure it was safe to proceed.

Claims against the driver of the minivan were dismissed.

The applicant, previously convicted of defrauding the Ontario Student Loan Program, sought the return of funds garnished by the Canada Revenue Agency.

The CRA had garnished funds seized under Mareva injunctions obtained by banks.

The court noted that the CRA proceeded under valid Federal Court process and that a previous court order had already recognized the CRA's claims.

Finding that the application appeared to be an abuse of process attempting to re-litigate determined matters, the court directed the registrar to issue a notice under Rule 2.1.01 requiring the applicant to explain why the application should not be dismissed.

The plaintiff brought a defamation action against the defendant regarding a Facebook post.

The defendant brought an Anti-SLAPP motion under s. 137.1 of the Courts of Justice Act and subsequently delivered a statement of defence and counterclaim.

The plaintiff moved to strike the pleading, arguing it violated the stay of proceedings under s. 137.1(5), which prohibits further steps once an Anti-SLAPP motion is made.

The court dismissed the plaintiff's motion, finding that delivering a defence is necessary to satisfy the requirement under s. 137.1(4) to show a valid defence, and therefore does not violate the stay.

The Family Responsibility Office brought a motion for a Warrant of Committal against the respondent for failing to pay child support arrears.

The respondent had a history of non-compliance but argued that he was unemployed, the child now resided with him, and he was financially supporting the child's athletic pursuits.

The court found a material change in circumstances since the previous default order and suspended the issuance of the warrant, ordering the respondent to file a motion to change the support order.