SCJ 2016

The plaintiff, Amanda Valentine, obtained a jury verdict in a motor vehicle action, exceeding her Rule 49 offers.

The defendant, Sebastian Rodriguez-Elizalde, admitted liability but made no monetary settlement offers, forcing a trial.

The court determined the plaintiff was entitled to partial indemnity costs to the date of her second Rule 49 offer and substantial indemnity costs thereafter, as the judgment was more favorable than her offer.

The court rejected the plaintiff's request for a remedial costs penalty under the Insurance Act, finding the insurer did not breach its duty to settle expeditiously or participate in mediation, despite its "hardball" approach.

The court fixed total costs, including reduced disbursements, at $172,000.

The plaintiff moved for summary judgment seeking an order for the sale of a property or a finding of constructive trust, alleging a fraudulent conveyance under the Fraudulent Conveyances Act.

The motion was dismissed as the court found a genuine issue requiring a trial.

The court determined that a full evidentiary record was necessary to properly assess the flow of funds from a prior property sale, an alleged loan by one defendant to his parents (the other defendants), and its repayment, which were central to determining if valuable consideration was given and if the transaction was impeachable.

The accused was tried for two counts of historical indecent assault against a male complainant relating to incidents in 1980-1982.

The first count alleged assaults at the accused's residence in Mississauga, while the second count alleged assaults during a summer camp canoe trip in Huntsville.

The court applied the W.(D.) framework to assess credibility and admitted similar fact evidence regarding another camper.

The court found the accused not guilty on the first count due to reasonable doubt, but guilty on the second count, finding the complainant's evidence credible and supported by the similar fact evidence.

The applicant sought leave to appeal an order that found records from marriage counselling sessions privileged and not disclosable in matrimonial litigation.

The court applied the strict two-part test for leave to appeal under Rule 62.02(4)(b), finding no reason to doubt the correctness of the motion judge's decision and no matters of general importance beyond the immediate parties.

The motion for leave to appeal was dismissed.

The Applicant, Michael David Garland, moved for costs following his successful motion to change previous joint custody orders to expand his residence time with the parties' child.

The court found the Applicant had achieved decisive success in the underlying motion.

The Applicant sought full indemnity of $26,700 or partial indemnity of $19,500.

The Respondent, Candace Brouwer, opposed the amount.

The court determined that substantial indemnity was appropriate but reduced the amount to $12,000, considering that a smaller amount would have been reasonably contemplated and that the Respondent should not be responsible for the Applicant's choice of a lawyer who had to travel.

The appellants (defendants) appealed a Master's decision that set aside a registrar's order dismissing the action for delay.

The Superior Court found that the Master erred in reversing the onus of proof regarding prejudice, which lies with the plaintiff to demonstrate a lack thereof.

The Master also failed to give adequate weight to the principle of finality.

The court emphasized that the plaintiff failed to provide a satisfactory explanation for significant delays and did not demonstrate a lack of prejudice to the defendants.

The appeal was allowed, and the registrar's dismissal order was restored.

The Crown sought to change its position regarding the use of the accused's utterances and statement to police as part of its case at trial, contrary to a recorded pretrial conference position.

The accused opposed this change, arguing it would impair his right to a fair trial.

The court considered the Crown's non-compliance with the Criminal Proceedings Rules and the lack of a compelling explanation for the change.

The court ruled that the Crown must maintain its original position, disallowing the introduction of the utterances/statement as part of its case.

The Crown brought a pretrial application for a witness, Jesse Watson, to testify remotely via an audio-video link in a criminal trial.

The application was made under subsections 486.2(1) and (2) of the Criminal Code, with the Crown primarily relying on subsection (1) due to the witness's mental disability.

The Defence opposed the application.

The court granted the Crown's application, finding that the Crown had established the witness's ability to communicate evidence, potential difficulty in doing so due to mental disability, and that the Defence failed to rebut the presumption that the order would not interfere with the proper administration of justice.

The applicant sought a stay of proceedings due to unreasonable delay, alleging a breach of his section 11(b) Charter rights.

The total delay from charge to anticipated end of trial was 40 months and one week.

The court attributed only two weeks of this delay to the defence, resulting in a net delay of 39 months and 3 weeks, which exceeded the 30-month presumptive ceiling established in R. v. Jordan.

The Crown failed to rebut the presumption by demonstrating exceptional circumstances, as the court found that neither lengthy defence cross-examination nor an unsuccessful certiorari application constituted defence delay or exceptional circumstances, particularly given the Crown's own disclosure issues and the simplicity of the case.

The application for a stay of proceedings was granted.

The court issued a post-decision endorsement providing further directions on child support arrears and section 7 expenses.

The applicant submitted an affidavit that went beyond the court's previous request by attempting to challenge the court's interpretation of prior orders, which the court refused to consider.

The court directed the respondent to file an affidavit responding to the applicant's evidence on actual payments made, hockey expenses, and the 18-year-old child's post-secondary plans, failing which the applicant's evidence would be accepted.

Michael Oduh, charged with serious drug trafficking offences, applied for a stay of proceedings pending state-funded counsel (a Rowbotham application) after being denied Legal Aid Ontario coverage.

The court found that Oduh lacked the financial means to retain private counsel for a complex, lengthy trial and that counsel was essential for him to receive a fair trial, given the seriousness of the charges, the potential for a lengthy jail term, and his lack of familiarity with the criminal justice system.

The application was allowed, and proceedings were stayed until state-funded counsel was provided.

The Offender, A.H., was found guilty of child luring over the internet, contrary to section 172.1(1)(b) of the Criminal Code of Canada, involving a 15-year-old victim.

The offence included sending offensive material and invitations for sexual acts.

A.H. had no prior criminal record but denied the offence and expressed no remorse.

The Crown sought a sentence of 15 months imprisonment and probation, emphasizing deterrence and denunciation as primary sentencing principles.

The court considered the statutory minimum sentence of one year and the revised sentencing range for child luring, noting the upward adjustment from previous case law (Jarvis) as clarified by Woodward.

The judge imposed a sentence of 15 months imprisonment and one year probation, along with ancillary orders including a DNA sample, 20 years on the Sex Offender Registry, and a 10-year prohibition from certain locations and contact with persons under 16.

The Crown brought an application to admit evidence of the accused's prior discreditable conduct towards his wife in a domestic sexual assault and common assault trial.

The court applied the two-part test for admissibility, finding the evidence relevant to provide context for the relationship, demonstrate animus, establish motive, and explain the complainant's delayed reporting.

The court concluded that the probative value of this contextual evidence outweighed its prejudicial effect, particularly as the discreditable conduct was less serious than the charges.

The application was granted, allowing the evidence to be admitted at trial.

The Crown applied to have the respondent declared a dangerous offender following his convictions for two counts of attempted murder with a firearm, discharging a firearm with intent to wound, and failing to comply with a prohibition order.

The court reviewed the respondent's extensive criminal record, institutional misconduct, gang affiliation, and psychiatric assessments.

Finding that the respondent met the criteria for a dangerous offender due to a pattern of persistent aggressive behaviour and a substantial degree of indifference to the consequences of his actions, the court declared him a dangerous offender and imposed an indeterminate sentence.

This costs endorsement followed a high-conflict custody trial that settled on its seventh day.

The respondent mother sought substantial costs, and the court, applying Family Law Rule 24, determined she was more successful on the weighty issues despite mixed success on others.

The court considered the three purposes of costs (indemnity, settlement, sanction) and the parties' litigation conduct, including the father's pursuit of "unfounded" allegations and his initiative in settling.

The applicant father was ordered to pay $50,000 in costs to the respondent mother.

The plaintiffs moved for judgment in the amount of $150,000 based on Minutes of Settlement, following the defendants' default on installment payments.

The court considered whether the consent to judgment constituted an unenforceable penalty clause or if relief from forfeiture was warranted for payments already made.

The court found the stipulated sum was not unconscionable given the negotiated nature of the settlement and the original claim amount.

Relief from forfeiture was denied as the bargain was not unconscionable and the defendants were dilatory in seeking relief.

The motion for judgment was granted, and costs were awarded to the plaintiffs.

The plaintiff sued her physician for medical malpractice, alleging he negligently managed her right forearm pain by failing to properly assess and investigate a bump that was eventually diagnosed as a rare synovial sarcoma.

The defendant physician had diagnosed repetitive strain injury and reflex sympathetic dystrophy, treating the plaintiff with psychotherapy and medication for nine years before ordering an MRI.

The Superior Court of Justice found that the defendant breached the standard of care of a primary care physician by failing to include a tumour in his differential diagnosis, failing to properly monitor the lump, and failing to order an MRI earlier.

The court also found that this breach caused the plaintiff's damages, as an earlier MRI would have led to earlier surgical removal of the tumour and eliminated years of pain.

This costs endorsement followed a successful motion by the plaintiffs against the GCMC Defendants to establish a discovery plan.

The plaintiffs sought partial indemnity costs, while the GCMC Defendants argued for no costs due to alleged non-compliance with a previous court order.

The court found the plaintiffs acted reasonably and were largely successful in their motion, noting the GCMC Defendants had used the discovery plan issue as a tactic to seek dismissal of the action, contrary to the purpose of Rule 29.1.

Applying general costs principles, the court awarded the plaintiffs fixed costs.

The Applicant sought to disqualify the Respondent's counsel, Harold Niman and Niman Gelgoot & Associates, citing a conflict of interest due to Niman's prior representation against the Applicant and her family in other family law disputes, and alleging Niman possessed confidential information.

The Applicant also argued the Respondent's retention of Niman was tactical and intended to intimidate her.

Niman brought a cross-motion to strike certain evidence from the Applicant's affidavits, including settlement-privileged communications and documents related to a complaint against Dr. Douglas Weir to the College of Physicians and Surgeons.

The court dismissed the Applicant's motion to disqualify, finding no "sufficient relationship" between the prior retainers and the current proceeding, and no evidence that Niman actually possessed relevant confidential information.

The court granted Niman's motion to strike, upholding settlement privilege and the statutory prohibition against admitting professional regulatory proceedings in civil matters.