SCJ 2016

The plaintiff brought a motion for summary judgment following the termination of her employment.

The defendant argued that the termination was governed by an employment contract that provided for two weeks' notice per year of service, which had been exceeded.

The court found that the employment contract was enforceable, as it was received prior to the plaintiff commencing work and its termination clause complied with the Employment Standards Act, 2000.

The motion was dismissed, with the court noting that the appropriate common law notice period would have been 39 weeks had the contract been unenforceable.

The plaintiff was injured in a motor vehicle accident and received Income Replacement Benefits (IRBs) from her insurer until they were terminated in 2003.

She commenced an action against the insurer for other benefits in 2005, but did not claim IRBs.

In 2007, she commenced a new action against the insurer for IRBs and against her former lawyer for negligence.

The insurer brought a motion for summary judgment to dismiss the IRB claim as statute-barred.

The court granted the motion, finding that the insurer's 2003 notice of termination was clear and unequivocal, triggering the two-year limitation period, which had long expired.

The applicant sought costs following her successful motion for partition and sale, while the respondent opposed and sought his own costs based on partial success on his motion regarding the treatment of future income loss and Family Law Act claims.

The court found the applicant was entitled to costs for her motion, as the respondent's opposition lacked merit and he had failed to file pleadings.

The court acknowledged the respondent's mixed success on his motion and arbitrarily reduced the applicant's costs award by $1,000 to account for it.

The applicant was awarded total costs of $4,081.62.

The accused was arrested without a warrant for possession of methamphetamine for the purpose of trafficking based on information provided by a confidential informant.

Following her arrest, she handed over methamphetamine to police.

The accused brought a Charter application to exclude the evidence, arguing the arrest lacked reasonable and probable grounds.

The court dismissed the application, finding the informant's tip was sufficiently reliable and detailed to provide reasonable and probable grounds for the arrest.

The court further held that even if the arrest was unlawful, the evidence would not be excluded under section 24(2) of the Charter.

The accused was charged with sexual assault and touching for a sexual purpose after allegedly performing cunnilingus on a ten-year-old child who was sleeping over at his residence.

The Crown's case relied on the testimony of the child and DNA evidence showing the accused's amylase on the child's underwear.

The accused denied the allegations, claiming he was at work at the time and suggesting the DNA transfer was due to innocent contamination.

The court rejected the accused's evidence, accepted the child's testimony as corroborated by the DNA evidence, and found the accused guilty of both charges.

The Crown sought an order under section 715.1(1) of the Criminal Code to introduce a videotaped statement of a child complainant in a sexual assault trial.

The defendant opposed, arguing the statement was not made within a reasonable time and should be excluded under the court's residual discretion.

The court found the delay in reporting was reasonable given the child's age, the accused's position of authority, and the child's belief she would be arrested if she told the secret.

The court declined to exercise its residual discretion to exclude the statement and granted the order, subject to the complainant adopting the statement at trial.

The applicant mother moved with the two children from London to Brampton without providing the 60 days' written notice required by the final order.

The respondent father brought an emergency motion for the return of the children, and the mother brought a cross-motion to remain in Brampton.

The court applied the Plumley factors for interim mobility, finding a genuine issue for trial and no compelling circumstances to justify an interim move.

The court ordered the children returned to London pending trial, noting the mother could not benefit from creating a new status quo without proper notice.

The defendants brought a motion to amend their statement of defence to add a limitation period defence under section 13 of the Limitations Act, 2002.

The motion was brought on the eve of a peremptory summary judgment motion, after four years of litigation and numerous adjournments.

The court dismissed the motion to add the limitation defence, finding that the unexplained delay would cause non-compensable prejudice to the plaintiff, and that the proposed defence lacked merit given the novation of the debt through the promissory notes.

A minor factual amendment to another paragraph was permitted.

The applicant, a customer of a bankrupt securities firm, sought to establish a claim against the bankrupt estate's general fund for post-bankruptcy increases in the value of liquidated foreign futures contracts.

The court held that while Part XII of the Bankruptcy and Insolvency Act does not preclude a customer from making a claim against the general fund as an ordinary creditor, the applicant only had a provable claim for contracts that vested in the trustee on the date of bankruptcy, not for those liquidated prior to bankruptcy due to subagent insolvency.

The court also dismissed the applicant's request for an equitable priority over other general creditors.

The defendants were successful on a motion for summary judgment dismissing the plaintiff's action.

The parties could not agree on costs.

The plaintiff argued each party should bear its own costs because the defendants could have brought their motions earlier and the action was novel.

The court rejected these arguments, finding the action lacked merit and was not novel in a way that would displace the usual costs rules.

The court awarded the defendants their costs on a partial indemnity basis, fixing Murphy's costs at $37,760.38 and Goliger's costs at $46,911.91.

The applicant mother brought an uncontested motion to change a 2012 Alberta order regarding custody, access, and child support.

The respondent father had moved to Europe, ceased exercising access, and failed to disclose his income or pay appropriate child support.

The court granted the mother sole custody, ordered that any access by the father be supervised, and imputed the father's income at $110,000.

The court also ordered the father to pay ongoing and retroactive table support and section 7 expenses dating back to June 2012, and permitted the mother to travel outside Canada with the children without the father's consent.

Following a family law trial where the applicant was successful, she sought substantial indemnity costs of $9,949 plus HST and disbursements.

The respondent did not make costs submissions.

The court found that while the respondent was unsuccessful, his position on equalization was not unreasonable given the unusual circumstances.

The court declined to award substantial indemnity costs and fixed costs at $3,500 inclusive, payable by the respondent at a rate of $300 per month.

Following a successful summary judgment motion dismissing the plaintiff's claims in one of two proceedings, the court issued a supplementary endorsement to finalize the consolidation order and determine costs.

The court rejected the defendants' request to require pre-clearance of the plaintiff's Consolidated Statement of Defence.

On costs, the court declined to award substantial indemnity costs, finding partial indemnity appropriate.

Considering the plaintiff's financial circumstances and the defendants' over-lawyering, the court fixed costs at $30,000 payable to the defendants.

The respondent mother brought a motion seeking $100,000 in security for costs against the applicant father, who resides in Spain and is seeking sole or joint custody of their child.

The father brought a cross-motion for unsupervised access.

The court dismissed the motion for security for costs, finding that while the father resides outside Ontario, his custody claim has merit and is not a nuisance.

The court also denied the father's request for unsupervised access due to outstanding criminal charges and flight risk concerns, instead ordering supervised access.

The testator's will appointed his daughter and son as executors and directed them to set aside $100,000 in a trust fund for the benefit of another son.

The executors transferred the funds to an investment account with the son as the annuitant and no named beneficiary.

The son subsequently misappropriated the funds for his own business.

The applicant sought payment of his entitlement and the removal of the executors.

The court found that the trust fund was never properly established and that both executors breached their fiduciary duties.

The daughter's passive reliance on her co-executor fell short of the standard of care required of an executor.

The executors were held jointly and severally liable for the dissipated funds.

The appellant appealed his summary conviction for assault causing bodily harm, arguing the verdict was unreasonable, the trial judge's reasons were inadequate, and the judge erred in finding his version of events did not afford a defence.

The Superior Court of Justice dismissed the appeal, finding the trial judge's credibility assessments and rejection of the appellant's exculpatory statement were logical and supported by the evidence.

The court held that the trial judge's reasons were sufficient and did not misapprehend the evidence regarding the appellant's involvement in the swarming.

The plaintiff brought a motion to add their own insurer as a defendant and to extend the time for serving the statement of claim on the defendant vehicle owner, along with a request for substituted service.

The court found the plaintiff's counsel had been highly dilatory in pursuing the claim.

The court allowed the addition of the insurer as a defendant, noting a triable issue regarding discoverability, but preserved the insurer's right to plead a limitation defence.

However, the court dismissed the motions to extend time for service and for substituted service against the vehicle owner, finding the plaintiff failed to provide evidence rebutting the presumption of prejudice arising from the expired limitation period and failed to make sufficient efforts at personal service.

The applicants sought a declaration that an easement for a water pipe across their property, benefiting the respondents' adjacent property, was invalid.

The respondents counter-applied for a declaration that the easement was valid.

The court found that historical documents from 1968 and 1979 were intended to create an easement, not a mere license.

Although the 1979 document initially violated the subdivision control provisions of the Planning Act, the court held that subsequent conveyances containing prescribed solicitor statements triggered the curative provision in s. 50(22) of the Planning Act, validating the easement.

The applicants' argument under the Registry Act was also dismissed because the properties had been converted to the Land Titles system.

The application was dismissed and the counter-application granted.

The plaintiff sought full indemnity costs of $58,030 against the defendants (indemnitors) following a successful motion, relying on a lease provision.

The responding indemnitor argued the lease provision applied only to the tenant, not the indemnitors.

The court agreed, finding no basis for full indemnity costs against the indemnitors and noting issues with the plaintiff's dockets.

The court awarded partial indemnity costs, reducing the claimed fees for a second counsel's attendance and reducing disbursements for lack of particularity, fixing total costs at $28,815.28.

The applicant sought costs following a motion for retroactive and ongoing spousal support, where the respondent brought a cross-motion for child support and extraordinary expenses.

Success was divided, and neither party's offer to settle was clearly superior.

However, the court found the applicant was sufficiently successful to warrant partial indemnity costs, having obtained a sizeable award for spousal support.

The respondent was ordered to pay costs of $5,500 plus HST.