SCJ 2016

The plaintiff and third party brought motions for summary judgment against the defendant regarding an equipment lease for a commercial printer.

The defendant had stopped making lease payments, alleging the printer was defective, but had signed agreements containing broad exclusion clauses.

The court found the exclusion clauses were neither unconscionable nor contrary to public policy, noting the defendant was a sophisticated commercial entity that chose not to read the contracts.

The court granted summary judgment for both the plaintiff and third party, awarding damages and costs, and strongly criticized the defendant's failure to file a factum.

The father brought a motion to hold the mother in contempt for allegedly failing to comply with prior court orders requiring the timely sale of their jointly owned New York property.

The mother brought a cross-motion to stay all future proceedings by the father until he paid outstanding costs orders.

The court dismissed the contempt motion, finding that the prior orders did not clearly and unequivocally require the mother to sell the property immediately, but rather permitted her to sign documents to facilitate a sale without the father's consent.

The court granted the mother's cross-motion, staying the father's future motions until he satisfied his outstanding costs obligations.

In a bifurcated trial of a matrimonial dispute, the court was asked to determine the valuation date.

The respondent argued the parties separated in August 2006 after his extra-marital affair, while the applicant argued they separated on October 31, 2010.

Applying the Oswell factors for living separate and apart under the same roof, the court found that the parties continued to function as a family, maintained joint financial arrangements, and did not take steps consistent with a final separation until 2010.

The court concluded the valuation date was October 31, 2010.

The plaintiff was injured in a bicycle accident in a construction zone and initially sued the municipality.

After the municipality issued a third-party claim against the contractor, the plaintiff commenced a separate action against the contractor.

The contractor moved for summary judgment, arguing the claim was statute-barred by the two-year limitation period and constituted an abuse of process.

The court dismissed the motion, finding a genuine issue for trial regarding when the plaintiff reasonably could have discovered the contractor's involvement, given her injuries and the lack of clarity about the construction site.

The court also found no abuse of process and granted the plaintiff's cross-motion to consolidate the actions.

The accused, a teacher, was charged with sexual assault and sexual touching of a nine-year-old student in a school portable.

The trial judge assessed the credibility and reliability of the child complainant's evidence, noting several inconsistencies and a fabricated sighting of the accused after his arrest.

Applying the principles for assessing children's evidence, the court found the complainant's testimony unreliable and the accused's evidence raised a reasonable doubt.

The accused was acquitted of both charges.

The moving party, a women's shelter, brought a motion to strike the responding party's negligence claim on the basis that the limitation period had expired.

The deceased was sexually assaulted on the shelter's premises by a third party and later murdered in an unrelated incident.

The court held that the recent amendments to the Limitations Act, 2002, which eliminated limitation periods for proceedings based on sexual assault, applied to negligence claims against third parties who owed a duty of care to the victim.

The court found sufficient proximity to establish a prima facie duty of care and dismissed the motion to strike.

Following a successful summary judgment motion terminating a commercial lease, the successful landlord sought costs.

The lease provided for costs on a substantial indemnity basis.

The tenant did not provide costs submissions.

The court awarded the landlord its requested costs of $50,509.62 all-inclusive.

The offender, an indigenous man with no prior criminal record, was convicted of sexual assault and unlawful confinement after attempting to force sexual contact with the victim in a change room.

The Crown sought a two-year less a day jail sentence, while the offender sought a six-month conditional sentence.

The court weighed the aggravating factors of the violent nature of the assault and its emotional impact on the victim against the mitigating factors, including the offender's Gladue factors, lack of criminal record, and community support.

The court concluded that a conditional sentence would not adequately address the need for denunciation and general deterrence, sentencing the offender to six months in jail followed by three years of probation.

The appellant was convicted of driving with a blood alcohol level over 80 after failing a roadside screening test and providing breath samples of 125mg and 100mg.

On appeal, he argued the trial judge erred in assessing whether the police officer had an objective basis for the demand given the potential presence of mouth alcohol, and that the trial judge provided inadequate reasons regarding care and control.

The Superior Court of Justice dismissed the appeal, finding the trial judge properly applied the objective standard, made credibility findings entitled to deference, and that the path to conviction was clear because the Crown relied on the appellant's admission of driving prior to being found in the driveway.

A law firm sought to collect $5,458.44 in unpaid fees from a former client.

After facing a three-year delay for an assessment hearing under the Solicitors Act, the firm moved for leave to stay the assessment and proceed in Small Claims Court.

The court interpreted section 23 of the Solicitors Act, concluding that it only bars actions on alternative fee arrangements (such as contingency or block fees) and does not prevent a solicitor from suing on a standard hourly retainer agreement.

The court granted the firm leave to bring an action in Small Claims Court.

The plaintiffs, family members of a deceased correctional officer, brought an action against the employer under the Family Law Act.

After the action was set down for trial, the defendant moved for leave to amend its statement of defence to argue the claims were barred by the Public Service Labour Relations Act and the collective agreement, and for leave to bring a summary judgment motion.

The court partially granted the motion to amend, allowing references to the Family Law Act and Crown Liability and Proceedings Act, but refused amendments relying on the collective agreement, finding the essential character of the claims did not fall within its scope.

The motion for leave to bring summary judgment was dismissed.

The plaintiff brought a motion for the release of $33,900 paid into court pursuant to a prior order.

The prior order required the defendant to release a wine inventory to the plaintiff 'on or before' September 30, 2014, for a fundraising auction, and required the plaintiff to pay funds into court pending resolution of the defendant's claim for past services.

The plaintiff argued the defendant breached the order by not releasing the wine in time for the auction.

The court found that 'on or before' meant any time on September 30, and that the defendant had complied by making the wine available that evening, but the plaintiff failed to pick it up.

The motion for payment out of court was dismissed.

The defendants sought costs following the dismissal of the plaintiffs' action.

Vancity claimed substantial indemnity costs based on a Rule 49.10 offer to settle.

The court held that Rule 49.10 does not apply where an action is dismissed, and awarded partial indemnity costs.

The court rejected the plaintiffs' arguments that the defendants' claimed hours were excessive, noting the plaintiffs failed to produce their own bill of costs for comparison.

The court fixed Vancity's fees at $200,000 and Co-operators' fees at $130,000, plus HST and allowable disbursements.

The plaintiff, a third mortgagee, brought a motion for summary judgment against the mortgagor and two guarantors for possession and payment of a mortgage debt.

The defendants largely failed to respond.

The court dismissed the motion and the underlying claim without prejudice, finding that the statement of claim was entirely deficient and bore little resemblance to the confusing evidence presented.

The court noted significant issues with the claim, including the demand for unenforceable penalty interest and the reliance on a collateral mortgage that was not signed by the defendants or properly pleaded.

The plaintiff was granted leave to commence a fresh proceeding with a properly drafted statement of claim.

Following a trial regarding a share valuation, the court issued an endorsement to finalize the purchase price and determine costs.

The purchase price was set at $1,000,806 based on the expert's revised valuation.

The applicants sought costs on a substantial indemnity basis, but the court awarded partial indemnity costs, finding the respondent's conduct prolonged proceedings but was not reprehensible.

Costs were fixed at $119,129.46, including expert disbursements.

The accused was charged with sexual assault after the complainant awoke to find him naked and on top of her following an evening of heavy drinking and marijuana use.

The defence argued the complainant's evidence was unreliable due to her intoxication and inconsistencies in her testimony.

The court found the complainant credible despite memory fragmentation, noting her core account of the assault remained consistent.

The accused was found guilty.

The plaintiff brought a civil action against several police officers and the police services board for false arrest, false imprisonment, negligent investigation, malicious prosecution, and breach of his Charter rights following his arrest for causing a disturbance and assaulting a police officer.

The plaintiff had been acquitted of the criminal charges.

The court found that the plaintiff was severely intoxicated, belligerent, and aggressive on the night in question, and that the arresting officer had reasonable and probable grounds to arrest him.

The court dismissed the action in its entirety, concluding that the arrest and detention were lawful, the investigation was not negligent, and there was no malice or Charter breach.

The plaintiff brought a motion to withdraw admissions made by her former counsel at a status hearing, which had limited her damages claim to avoid the action being dismissed for delay.

The defendants brought cross-motions to hold the plaintiff to those admissions and strike portions of the statement of claim exceeding them.

The court dismissed the plaintiff's motion and granted the defendants' cross-motions, holding that a client is bound by the representations and admissions made by their counsel in court under the doctrine of ostensible authority.

The applicant brought a motion for interim spousal support and orders to maintain her as a beneficiary of life and health insurance.

The parties had a traditional 26-year marriage where the applicant was a stay-at-home parent.

The respondent, who was on permanent disability, had an income of $88,171 for spousal support purposes, while the applicant earned $45,100.

The court found the applicant had a strong compensatory claim and ordered interim spousal support of $1,350 per month, adjusting for her contribution to the interest on a joint line of credit.

The issue of retroactive support was deferred to the trial judge.

The accused was charged with importing cocaine after CBSA officers found the drug in food cans in his luggage.

The Crown brought a pre-trial application to admit the accused's statements to CBSA and RCMP officers as voluntary, while the accused brought a Charter application seeking to exclude the statements and drugs due to alleged arbitrary detention, an unreasonable strip search, and sleep deprivation.

The court found the statements voluntary, noting that while keeping the accused awake was minor misconduct, it did not induce the statements.

The court also dismissed the Charter application, finding no detention during routine customs questioning and no unreasonableness in the brief strip search.

A mid-trial ruling also admitted a Certificate of Analyst.