SCJ 2016

In this pre-trial application, the defence sought leave to introduce evidence of alternate suspects in a murder trial.

The court granted the defence's request to introduce evidence regarding Vanessa Tracey, finding a sufficient connection between her and the victim's death to establish an "air of reality" for the defence.

However, the court dismissed the application concerning Roger Busch and Laura Heavens, concluding that the evidence presented for them was insufficient to create the necessary connection to the crime and would lead to impermissible speculation by the jury.

The court quantified costs previously awarded to the defendants (excluding one individual) against the plaintiff.

The plaintiff failed to submit costs outlines as directed, leading the court to infer that its costs would not have supported its position.

The court fixed partial indemnity costs for a motion at $10,075 and 50% of the trial costs at $194,159.70, considering the complexity, importance, and financial risk of the underlying litigation concerning a significant property.

The applicant sought costs following a motion where the respondent was found to be non-compliant with previous court orders regarding the sale of the matrimonial home and disclosure of medical information.

The applicant requested costs on a substantial indemnity basis, citing the respondent's failure to comply with a separation agreement and court orders.

The respondent argued for no costs due to disability and divided success.

The court, applying Rule 24 factors, found the applicant largely successful and awarded partial indemnity costs of $3,500, noting the respondent's unreasonable behaviour and financial capacity.

The applicant, Fazlollah Seyedali Lavasani, sought to set aside a default judgment obtained by the respondents, Sheldon Rakowsky and Sheldon Rakowsky Professional Corporation, related to mortgage loans.

The applicant argued lack of notice and presented several defences.

The court found that the applicant had constructive notice of the action through his attorney and failed to establish any arguable defence on the merits, including claims of knowing assistance in breach of fiduciary duty, knowing receipt, deferred indefeasibility, or Family Law Act protections.

The motion to set aside the default judgment was denied, and costs were awarded to the respondents.

This ruling addresses the admissibility of statements made by the accused, Jason Rodgerson, who is charged with second-degree murder.

The defence sought to exclude the statements, alleging violations of Charter Sections 8, 9, 10(a), and 10(b), and arguing involuntariness.

The court found that a spontaneous utterance made upon arrest and the initial portion of a videotaped interview (by Detective Henderson) were admissible, as they were voluntary and obtained without Charter infringement.

However, the subsequent portions of the videotaped interview (by Detectives Dingwall and Hoard) were excluded under Section 24(2) of the Charter due to a violation of Section 9, as the police deliberately delayed bringing the accused before a Justice of the Peace on drug charges to continue the homicide investigation, even after the accused had asserted his right to silence and no new information justified further interrogation.

The applicant sought custody of his daughter following the respondent's unilateral, unannounced relocation with the child to a new city, which violated a prior court order.

The Office of the Children's Lawyer (OCL) also brought a motion for disclosure of the child's records due to the respondent's non-compliance.

The court found the respondent's actions to be an exceptional case warranting a change in the child's primary residence, citing the child's instability, special needs, and the respondent's secretive and unilateral decisions.

The court granted the applicant interim primary residence and amended access arrangements, while dismissing the OCL's motion as it was resolved by consent if disclosures were made.

The plaintiff brought a motion to amend its statement of claim to add a related numbered company as a defendant.

The defendants opposed, arguing prejudice and noting the plaintiff failed to request leave under Rule 48.04.

The court granted the motion, finding the failure to request leave was a technical defect that could be remedied.

The court noted the defendants and their counsel appeared to be engaged in a game of 'catch us if you can' regarding the complex ownership of the property where the materials were supplied, and found no prejudice in allowing the amendment.

The applicants (father and paternal grandparents) brought a motion for interim custody and access for two children.

The respondent (mother) opposed.

The court addressed conflicting evidence regarding parental fitness, the mother's mental health, and the role of the grandparents as de facto caregivers.

Emphasizing the children's best interests, the court awarded interim joint custody to the mother and grandparents, establishing a detailed rotating parenting schedule with conditions on the mother's residence and supervision.

The father was granted reasonable access during the grandparents' parenting time.

The Receiver moved for an order approving the sale of the debtor's mining assets to the applicant.

A third party opposed the sale, arguing its gross overriding royalty (GOR) rights constituted an interest in land that could not be extinguished by a vesting order.

The court applied the Dynex test and found the GORs were merely contractual rights to share in revenues, not an interest in land.

The court granted the vesting order, extinguishing the GORs upon payment of their fair appraised value.

The third party's cross-motion for a storage lien under the Repair and Storage Liens Act was dismissed.

The applicant sought an order to permit her to register her child, Kalle, in the National Ballet School (NBS) for the 2016/2017 year.

The respondent opposed this motion, arguing that Kalle's weekend classes would interfere with his limited access time with both children.

The court considered the child's best interests and the "maximum contact principle" finding insufficient evidence that Kalle's participation in the NBS Associates Program, which is not the professional program, should override the respondent's access time.

The motion was dismissed.

This decision addresses the costs of an estate dispute where the applicants, two sisters, unsuccessfully challenged their father's final will, alleging undue influence by their brother.

The court reiterated the "loser pays" principle in estate litigation, finding no public policy grounds to deviate or have the estate bear the costs.

The court was critical of the applicants' persistent and personal attacks, noting their conduct prolonged an unnecessary and bitter trial.

Costs were awarded to the respondent on a partial indemnity basis.

The accused was found guilty of dangerous driving causing death, criminal negligence causing death, and manslaughter.

The court addressed the issue of multiple convictions, conditionally staying manslaughter and dangerous driving causing death, and entering a conviction for criminal negligence causing death.

The court also criticized the Pre-Sentence Report for inappropriate content.

Considering aggravating and mitigating factors, including the accused's youth, lack of prior criminal record, and the absence of alcohol, the court imposed a sentence of two years less a day imprisonment, followed by three years of probation, and a 15-year driving prohibition.

Max Bourdeau, facing serious drug trafficking charges, brought a Rowbotham application seeking state-funded counsel and a stay of proceedings pending its provision, after being denied Legal Aid Ontario (LAO) coverage.

The court dismissed the application, finding that while the charges were serious and likely to result in imprisonment, the case was not sufficiently complex to require counsel for a fair trial.

Furthermore, the applicant failed to demonstrate indigence, given his income, lack of significant liabilities, and previous ability to secure bail and private counsel for earlier stages of the proceedings.

The Cadillac Fairview Corporation Limited appealed the partial disallowance of its claim by the trustee in bankruptcy of Danier Leather Inc. The core issue was whether occupation rent paid by a court-appointed receiver, acting as an agent for the trustee, could be deducted from the landlord's priority claim for accelerated rent under section 136(1)(f) of the Bankruptcy and Insolvency Act.

The court found that an agency relationship existed between the trustee and the receiver, and therefore, the occupation rent paid by the receiver was properly credited against the accelerated rent claim.

The appeal was dismissed.

The Defendants Kevin Philpott and Mark Philpott sought costs after a partially successful motion where the Plaintiff's Statement of Claim was struck with leave to amend, but their primary request to dismiss the action as an abuse of process was denied.

The court characterized the defendants' victory as 'pyrrhic' due to their failure on the abuse of process argument and their lawyer's conduct in a companion action.

Considering the procedural issues from both parties, the court ordered costs in the cause, fixed at $8,500, rejecting the defendants' request for substantial indemnity costs.

The Plaintiffs brought a refusals motion seeking answers to questions refused during the examinations for discovery of the Attorney General of Canada's representatives.

The questions pertained to information gathered during inquiries into the torture of Canadian citizens by foreign governments, the adoption of non-party inquiry testimony, production of in camera inquiry transcripts, and underlying evidence for allegations made against the Plaintiffs.

The court analyzed each refusal discretely, rejecting a global proportionality argument, and ordered some questions to be answered while upholding refusals for others, particularly those asking the AGC to adopt non-party testimony.

The defendant Sikh Lehar International Organization brought a motion to set aside, discharge, or lift a Certificate of Pending Litigation (CPL) registered against its property at 79 Bramsteele Road.

The CPL was obtained by the plaintiffs, Sukhinder Sandhu and 2207190 Inc., who claim to have purchased the property and seek specific performance.

Sikh Lehar needed to refinance significant mortgages maturing in November 2016 and argued the CPL prevented this.

The court found that the CPL should not be fully discharged as the plaintiffs had a reasonable claim to an interest in the property and specific performance was a potential remedy.

However, the court determined that the equities favored modifying the CPL to permit refinancing up to $6,500,000.00, with the new mortgage taking priority, to prevent significant prejudice to Sikh Lehar and potential foreclosure.

The plaintiffs' litigation conduct and delay in registering the CPL were not deemed sufficient grounds for its discharge.

The plaintiffs, a married couple who were long-term employees of the defendant, resigned and claimed constructive dismissal.

The wife had received a letter of reprimand for insubordination after refusing to start work earlier and being rude to a new manager.

The plaintiffs alleged the workplace was unsafe and unsanitary due to clutter, mice, and bats.

The court dismissed the action, finding the letter of reprimand was a moderate response to insubordination and the workplace conditions, while not ideal, did not amount to an unsafe environment or a fundamental change to the employment contract.

The plaintiffs' resignations were not justified on an objective standard.

The plaintiff, a 72-year-old security guard, was terminated after 12 years of service.

The employer provided a letter stating employment would end in a few months but gave no firm date, and the plaintiff continued working for seven months before being abruptly fired without statutory entitlements.

The plaintiff mitigated his damages by finding new employment and brought a motion for summary judgment.

The court found the initial notice was insufficient as it lacked a firm date and the employment continued beyond the 13-week regulatory period.

The court awarded damages for breach of contract and additional damages for mental distress due to the employer's unfair conduct.

The accused pleaded guilty to criminal negligence causing death after driving at extreme speed, consuming alcohol, and texting, resulting in a fatal collision with a motorcycle.

The court considered mitigating factors, including the early guilty plea, genuine remorse, youth, and lack of prior record, alongside aggravating factors such as the "trifecta" of dangerous driving (drinking, excessive speed, distracted driving) and the devastating impact on the victim's family.

Emphasizing general deterrence as the predominant sentencing objective, the court analogized distracted driving causing death to impaired driving causing death, highlighting the voluntary nature of the risks involved.

The accused was sentenced to 3.5 years imprisonment, a 69-month driving prohibition, and a 10-year weapons prohibition.