SCJ 2016

The appellant appealed two sentences imposed by the Ontario Court of Justice, arguing that the sentencing judges should have imposed nominal fines to reduce the mandatory Victim Fine Surcharge (VFS).

In one case, the judge imposed a sentence of custody, probation, and a nominal fine, which the Crown conceded was an illegal sentence under s. 731(1) of the Criminal Code.

The Superior Court of Justice held that the use of nominal fines solely to circumvent the mandatory VFS is impermissible and distorts the sentencing process.

The appeal against the first sentence was allowed to the extent that the nominal fines were quashed, leaving the custody and probation intact.

The appeal against the second sentence, where the judge declined to impose a nominal fine, was dismissed.

The defendants were successful on a motion to produce a document over which the plaintiff had asserted solicitor-client privilege.

The defendants sought costs of $11,406 on a partial indemnity basis, while the plaintiff submitted a bill of costs for $3,566.52.

The court found the defendants' claimed hours excessive for a relatively straightforward motion and emphasized the principle of proportionality.

Applying Rule 57, the court fixed costs payable to the defendants at $5,000 plus HST and disbursements.

The defendants in a medical malpractice action brought a motion for partial summary judgment to dismiss the plaintiff's claim under the Family Law Act, arguing she did not meet the definition of a spouse.

The court dismissed the motion, finding it was brought too close to the scheduled trial date contrary to prior instructions.

Applying the principles from Hryniak, the court held that granting partial summary judgment would risk duplicative proceedings and was not in the interest of justice, as the spousal status issue could be efficiently determined at trial.

The plaintiffs brought an action for damages arising from a motor vehicle accident involving a BMW registered to the moving party.

The moving party brought a motion for summary judgment seeking a declaration that he was not the owner of the BMW, arguing his identity had been stolen and used to fraudulently register the vehicle and obtain insurance.

The court granted the motion, finding no genuine issue requiring a trial.

The court accepted the moving party's evidence that he never purchased, owned, or registered the vehicle, nor applied for insurance, thereby rebutting the presumption of ownership under the Highway Traffic Act.

The defendants, Economical Mutual Insurance Company and Firstbrook, Cassie & Anderson Limited, brought motions for leave to amend their statements of defence under Rule 26.01.

The plaintiff opposed several proposed amendments, arguing they improperly pleaded res judicata, issue estoppel, withdrew admissions, and pleaded evidence rather than facts.

The Master granted leave to both defendants to amend their pleadings, finding no non-compensable prejudice to the plaintiff and concluding that the proposed amendments were legally tenable and properly pleaded the necessary elements of the defences.

The defendant brought a motion for partial summary judgment to dismiss the plaintiff's claim for unpaid invoices dating from 2007 to 2012, arguing they were statute-barred under the Limitations Act, 2002.

The plaintiff, a receiver who acquired the assets of the original creditor, argued the claims were not discoverable due to poor record-keeping and alleged part payments.

The court granted summary judgment, finding the claims were discoverable by 2012 and that the defendant had paid his accounts annually, meaning no part payments extended the limitation period.

A secondary motion to strike the claim for late appointment of counsel was dismissed.

The appellant mother appealed an order varying child and spousal support.

The respondent father had previously failed to disclose financial information, resulting in an uncontested order imputing his income at $100,000.

Three months later, he voluntarily quit his $85,000 job for a $35,000 job.

Years later, he sought to vary the support order, relying on the tax information he had previously withheld.

The motions judge reduced the imputed income retroactively to $85,000 and prospectively to $57,200.

The Superior Court allowed the appeal, holding that the motions judge erred in relying on previously withheld disclosure to retroactively vary support, and made a palpable and overriding error by imputing a lower income without evidence that the father was incapable of earning the higher amount.

The applicant children's aid society sought an order placing the child in the custody of his paternal grandparents.

The mother had a history of unstable relationships involving domestic violence and substance abuse, and failed to prioritize the child's needs over her relationships with adult males.

The court found the child to be in need of protection due to the risk of emotional harm.

Applying the best interests of the child test, the court granted custody to the paternal grandparents, with limited monthly access for the mother to provide the child with stability and routine.

The appellant, Pedro Alves, sought a stay of a custody and access order issued by Justice Spence, which granted sole custody of the parties' child, Miguel, to the respondent, Julia Quintana Londran.

The appellant argued that Justice Spence erred by reversing the status quo.

Applying the three-part test for a stay (serious issue, irreparable harm, balance of convenience), the court found that while the appeal raised a serious issue, the appellant failed to demonstrate irreparable harm to the child.

The court emphasized the child's need for stability and found no evidence that Miguel was suffering from the change in custody.

The balance of convenience also favored refusing the stay.

Consequently, the appellant's motion for a stay was dismissed, and the respondent was awarded costs of $3,000.00.

The plaintiff brought a motion to add Toronto Hydro-Electric System Limited as a defendant to a slip and fall action after the expiry of the presumptive two-year limitation period.

The plaintiff fell on an uneven grate but was not informed by the City of Toronto that Hydro owned the grate until three years after the incident.

The court applied the discoverability principle and found the plaintiff provided a reasonable explanation for the delay, as there was no basis to investigate other defendants until the City clarified ownership.

The motion to add Hydro as a defendant was granted.

The accused pleaded guilty to trafficking 0.77 grams of crack cocaine.

The Crown sought a custodial sentence of 12 to 13 months, while the defence submitted that a 5-month sentence was appropriate.

The court considered the accused's guilty plea, remorse, and lack of aggravating factors as mitigating circumstances.

The accused was sentenced to 5 months in custody, less 3 days of pre-sentence credit, followed by 2 years of probation and a lifetime firearms prohibition.

In the context of a CCAA proceeding, Port of Algoma Inc. (Portco) brought a motion seeking an order compelling the debtor, Essar Steel Algoma Inc., to make post-filing payments under a Cargo Handling Agreement and for an administrative charge.

The court dismissed the motion, finding it premature as the Monitor was directed to commence an oppression proceeding regarding the underlying related party transactions.

The court also rejected Portco's renewed arguments under section 11.01(a) of the CCAA, noting they had been decided in a prior motion, and declined to lift the stay of proceedings, emphasizing that doing so would be contrary to the interests of the stakeholders and the restructuring process.

The defendants brought a motion for summary judgment to vacate a construction lien, arguing the plaintiff registered the lien more than 45 days after the contract was abandoned.

The plaintiff argued that work had merely ceased due to financing issues and the contract was never permanently abandoned.

The court found that ongoing communications between the parties suggested the contract might not have been abandoned, and the defendants failed to provide evidence from their key representative.

The court dismissed the motion, finding a genuine issue for trial regarding whether the contract was abandoned.

The plaintiff brought a motion for summary judgment to recover $52,700, representing the balance of $75,000 advanced to the defendants.

The plaintiff argued the funds were a loan, while the defendants claimed they were an investment in a third-party scheme that ultimately failed.

Applying the summary judgment framework, the court found no genuine issue requiring a trial, determined that the funds were advanced as a loan, and granted judgment in favour of the plaintiff for the full amount claimed.

The applicant father brought an application under the Hague Convention seeking the return of the parties' one-year-old son from Ontario to California.

The respondent mother argued that the child was habitually resident in Ontario and that returning him would expose him to a grave risk of harm due to alleged abuse.

The court found that the child's habitual residence was California, as it was the only place where both parents lived together with the child, and the father had not consented to a change in residence.

The court also dismissed the mother's Article 13(b) defence, finding insufficient evidence that a return would create an intolerable situation.

The application was granted, and the child was ordered returned to California, where custody and access issues would be determined.

The corporate plaintiff sued for the return of a deposit on a failed real estate transaction.

The defendants counterclaimed and successfully moved before a Master for security for costs and leave to amend their counterclaim to add the plaintiff's principals as defendants.

The plaintiff and its principals appealed.

The Superior Court granted the appeal regarding security for costs, finding the Master erred by relying on speculation rather than evidence of the plaintiff's financial insufficiency.

The court dismissed the appeal regarding the amendment of pleadings, finding a tenable claim that the corporation acted as a bare trustee or agent for its principals.

A duplicative second action commenced by the defendants was dismissed.

This supplementary costs endorsement addresses the quantum of costs for earlier supplementary submissions.

The court clarified its previous position, acknowledging the defendants' submissions, though ultimately disagreeing with their objection.

The plaintiff was awarded modest costs of $1,000, less than sought but more than proposed by the defendants, reflecting the effort expended and the plaintiff's successful position on the issue.

The defendants requested that the registrar dismiss the self-represented plaintiff's statement of claim as frivolous and vexatious under Rule 2.1.01.

The plaintiff alleged that the defendants' actions led to his wrongful criminal conviction and subsequent exoneration, as well as breach of contract and torts.

The court declined to issue a Rule 2.1 notice, finding that the claim was not frivolous or vexatious on its face and that there was no evidence of abusive conduct.

The court noted that the defendants could still bring a motion for summary judgment under Rule 20, which is generally more appropriate for adjudicating claims involving self-represented litigants.

This is a costs endorsement following an appeal where the appellant was predominantly successful in overturning a wrongful dismissal finding but unsuccessful on other grounds.

The court assessed the appellant's claim for substantial indemnity costs, which was significantly higher than the damages awarded and the Small Claims Court jurisdiction.

The court found that Rule 49.10 of the Rules of Civil Procedure does not apply to appeals, nor does Rule 14.07 of the Small Claims Court Rules provide for enhanced costs on appeal.

Considering factors under s. 131(1) of the Courts of Justice Act and r. 57.01(1) of the Rules, including the proportionality of costs to the amount at stake and the level of success, the court awarded the appellant $10,000 in costs, inclusive of disbursements and HST, significantly less than the $56,320.96 claimed.

The plaintiff brought a motion to enforce answers to questions refused on cross-examination and a motion to adduce fresh evidence, following an adjournment of an underlying motion to vary a Mareva order.

The non-parties sought costs for the adjournment and the motions.

The court found the non-parties were mostly successful overall and awarded them costs on a partial indemnity basis, fixing the amounts at $9,610 for one non-party and $4,310 for the other after assessing the reasonableness of the claimed fees.