SCJ 2016

At a case conference, the court noted that the self-represented plaintiff had commenced three separate actions with overlapping defendants and identical material facts, potentially constituting an abuse of process.

To avoid a multiplicity of proceedings, the court ordered the plaintiff to deliver a single Fresh as Amended Statement of Claim consolidating all allegations and defendants into one pleading, and set a timetable for the defendants to respond or bring motions to strike.

Following the dismissal of the respondent's motion to strike, the successful applicant sought costs of $5,085.

The respondent argued for costs in the cause, citing the simplicity of the motion and the applicant's failure to comply with the Rules of Civil Procedure regarding costs outlines and bills of costs.

The court agreed with the respondent's criticisms of the applicant's materials and the disproportionate time claimed.

However, the court declined to order costs in the cause, instead fixing the applicant's costs at a reduced amount of $1,000 payable within 30 days.

The appellant appealed his conviction for failing to provide a breath sample.

At trial, the adult witnesses, including the police officer and the appellant, were asked to promise to tell the truth rather than being sworn or affirmed.

The summary conviction appeal court held that this was not a minor procedural irregularity curable under s. 686(1)(b)(iv) of the Criminal Code.

The failure to have adult witnesses testify under oath or solemn affirmation meant there was no properly sworn evidence before the trial court.

The conviction was quashed.

The applicant brought a motion for the partition and sale of the jointly owned matrimonial home, which the respondent opposed.

The respondent brought a cross-motion seeking a determination on whether monies received by the applicant from a motor vehicle accident settlement were excluded from net family property.

The court granted the partition and sale, noting the respondent had not filed an answer claiming exclusive possession or equalisation.

Regarding the settlement monies, the court held that damages for pain and suffering and loss of guidance, care, and companionship were excluded property.

However, the court found that damages for future income loss accrued prior to the valuation date must be included in net family property, and deferred the determination regarding future care costs to trial.

The plaintiff brought a motion for leave under Rule 48.04(1) to seek payment of expert fees, amend its statement of claim, and obtain certificates of pending litigation (CPL) after the action was set down for trial.

The Master granted leave due to the defendants' ongoing failure to comply with production orders, which constituted a substantial and unexpected change in circumstances.

The defendants were ordered to pay $10,000 in wasted expert fees caused by their piecemeal production.

While leave to amend the statement of claim was granted, the request for CPLs was dismissed because the plaintiff failed to demonstrate a reasonable claim to an interest in land, as the underlying agreement did not establish a fiduciary relationship or joint venture.

The bankrupt applied for an automatic discharge, which was opposed by his former wife, a major creditor owed an equalization payment.

The court found that the bankrupt had engaged in a nefarious scheme to hide over $400,000 in offshore accounts and his mother's name to defeat his wife's claims.

Finding multiple facts proven under s. 173(1) of the Bankruptcy and Insolvency Act, including failure to account for assets and hazardous speculation, the court refused an absolute discharge.

The bankrupt was granted a conditional discharge requiring him to pay $350,000 to the Trustee.

Following the dismissal of an appeal regarding the removal of animals under the OSPCA Act, the successful respondent sought partial indemnity costs of $46,561.99.

The court considered the factors under Rule 57.01 and section 131 of the Courts of Justice Act, balancing the respondent's success against the appellant's self-represented status and the financial burden of the maintenance fees.

The court fixed costs at $25,000 inclusive of disbursements and HST.

The plaintiffs sought to set aside the conveyance of their deceased father's family home to himself and his grandson as joint tenants, arguing resulting trust and undue influence.

The court found that the presumption of resulting trust applied to the transfer to the adult grandson, but it was rebutted by evidence showing the grandfather intended the transfer as a gift to reward the grandson for financially saving the house from power of sale proceedings.

The court also found no express undue influence and that any presumption of undue influence was rebutted by the grandfather's clear, independent intentions.

The action was dismissed.

The plaintiff brought a motion for summary judgment seeking specific performance of an agreement to lease a commercial property for a car dealership.

The defendant landlord argued the agreement was null and void due to the failure to waive certain conditions, including a solicitor review condition and a due diligence condition, within the stipulated timeframes.

The court found that the defendant, through its conduct and communications, had represented that it would not rely on its strict legal rights regarding the conditions, and the plaintiff had relied on these representations to its detriment.

Applying the doctrine of promissory estoppel, the court held the agreement was binding.

Finding the property to be unique for the plaintiff's intended use, the court granted summary judgment and ordered specific performance.

The plaintiff brought a motion for summary judgment to discharge a mortgage registered against his property, alleging that the defendant mortgagee never advanced the funds.

The plaintiff also claimed against the lawyer who provided him with independent legal advice, alleging negligence.

The court dismissed the plaintiff's motion for summary judgment regarding the mortgage discharge, finding that the conflicting evidence regarding the advance of funds required a trial.

The court granted the lawyer's motion for summary judgment, dismissing the claim against him on the basis that it was statute-barred under the Limitations Act, 2002, and alternatively, that the lawyer did not breach his duty of care.

The applicant sought a declaration that the respondent was responsible for funding a deficit that arose on the wind-up of a pension plan for employees at certain warehouses.

The warehouses were previously operated by the applicant's predecessor under a warehousing and transportation agreement with the respondent's predecessor.

The court found that the respondent was contractually liable under the agreement to reimburse the applicant for the deficit as an 'Employee Termination Payment'.

Furthermore, the court concluded that the respondent had subsequently assumed direct responsibility for funding the deficit.

The court rejected the respondent's limitation period and contributory fault defences, granting the declaration.

The accused brought a Charter application to exclude evidence obtained during the execution of a search warrant at his apartment, arguing the Information to Obtain (ITO) was insufficient.

The warrant was based on a tip from a confidential informant who had purchased crack cocaine from the accused.

Applying the Debot test, the court found the informant's information was highly compelling and sufficiently corroborated by police surveillance, compensating for weaknesses in the informant's inherent credibility.

The court concluded there was a solid basis for the justice of the peace to issue the warrant and dismissed the application.

The appellant sought leave to appeal an interlocutory order that set aside a default divorce judgment but upheld terms regarding spousal support and the sale of a property.

The court dismissed the motion for leave to appeal, finding that the appellant failed to demonstrate a conflicting decision based on differing legal principles, and failed to show good reason to doubt the correctness of the motion judge's exercise of discretion.

The court also noted the issues were not of general public importance.

The accused, a former director at a charity, was charged with fraud after it was discovered he had requisitioned over $115,000 in payments to two companies he secretly controlled.

The accused claimed the companies were used to pay subcontractors in cash to save the charity money, and that the executive director approved the scheme.

The court rejected the accused's evidence as a fabrication, finding that the companies did no legitimate work, the accused forged the executive director's signature on contracts, and the scheme was a simple case of employee theft.

The accused was found guilty of fraud.

The plaintiff brought a motion for leave to amend his statement of claim and adjourn the trial.

He sought to add a new cause of action based on a holograph will he claimed to have recently discovered, which would entitle him to the entirety of his deceased brother's estate.

The court dismissed the motion, finding that the proposed amendments raised a new, statute-barred cause of action.

The plaintiff failed to demonstrate a triable issue of discoverability, as his explanation for misplacing and finding the will lacked due diligence.

Furthermore, the court held that granting the amendment would cause non-compensable prejudice to the defendants.

The appellant appealed his summary conviction for sexual assault.

The complainant, a physically disabled woman, died before the trial concluded, and her videotaped police interview was admitted into evidence.

The appellant argued that his right to be tried within a reasonable time under s. 11(b) of the Charter was violated due to a four-year delay, that the videotaped statement was insufficiently reliable, and that the trial judge misapprehended evidence regarding digital penetration.

The Superior Court of Justice dismissed the appeal, finding no error in the trial judge's delay analysis, her admission of the hearsay statement under the principled exception, or her assessment of the evidence.

The accused, charged with attempted murder and robbery, sought a bail review after being detained by a justice of the peace.

He argued the justice of the peace erred in law and that a new plan of release constituted a material change in circumstances.

The Superior Court found no procedural unfairness or error of law in the initial hearing, noting the strong Crown case on the tertiary ground.

The court also rejected the new plan of release, finding the proposed sureties unsuitable due to evasiveness and inability to properly supervise the accused.

The application for bail review was dismissed.

The applicant father initiated a motion to change a final order regarding custody and access.

The respondent mother brought a counter-motion seeking child support arrears, ongoing support, and other relief.

At the hearing of the mother's motion, the court noted that the father conceded to retroactive child support adjustments based on his actual income.

The court ordered a temporary without prejudice order for ongoing child support of $782 per month and $300 per month towards arrears, and directed the parties to schedule a settlement conference to address the remaining issues.

The plaintiff sought leave to appeal an order requiring him to post security for costs.

The plaintiff, a citizen of India who had returned there after his permanent resident card expired, argued that a Legal Protection Certificate and Indemnity Agreement he purchased constituted sufficient security.

The court dismissed the application for leave to appeal, finding no conflicting decision on a matter of principle and no good reason to doubt the correctness of the motion judge's decision.

The applicant mother was completely successful on her motion for guideline child support and section 7 expenses.

She sought costs on a full recovery basis pursuant to Rule 18(14) of the Family Law Rules, having obtained a result better than her offers to settle.

The court found the applicant's efforts to negotiate settlement and the time expended were reasonable and necessitated by the respondent father's rigid and unreasonable conduct.

The respondent was ordered to pay costs of $9,213.83.