SCJ 2016

The applicant sought to invalidate or correct a $1.2 million gift of a home made to her parish priest in trust for his religious order, alleging mistake and, by amendment, undue influence.

Despite the parties' joint request for a decision on the voluminous affidavit evidence, the court found significant contradictions and gaps, particularly regarding the applicant's capacity, instructions to her lawyer, and the solicitation of the gift.

The court determined the record was inadequate for a fair determination and ordered a short motion to schedule a hearing with viva voce testimony to resolve the factual disputes.

This trial decision addresses divorce, spousal support, equalization of family property, and child support.

The applicant sought leave to amend pleadings to request a charging order, which was granted for the amendment but denied for the charging order itself.

The court granted a divorce, awarded the applicant retroactive and lump sum spousal support on a compensatory basis, and ordered an equalization payment to the applicant.

Child support for the adult child was denied without prejudice.

The Uber defendants in a proposed class action moved to disqualify Sutts Strosberg LLP as class counsel, alleging a conflict of interest.

The defendants claimed the firm failed to install adequate internal screens when hiring a lawyer who had previously acted for Uber in related litigation.

The court dismissed the motion, finding that the lawyer did not acquire relevant confidential information and that Sutts Strosberg had implemented reasonable measures to prevent disclosure, including pre-existing internal safeguards and a prompt full screen upon receiving notice of the alleged conflict.

The court emphasized that removal of counsel is a remedy of last resort and that minor technical errors do not warrant disqualification.

The court addressed two applications: a motion for court approval of an accident benefits settlement for a minor, Stephan Markus, and a guardianship application by his mother, Natalie Nicholas.

The court approved the accident benefits settlement amount of $650,000 but reduced the legal contingency fee from 25% to 15% and disallowed a disbursement for clerk's time.

The court rejected the proposed management plan for the settlement funds and Natalie Nicholas's application to be appointed guardian of property, citing concerns about the plan's realism and internal inconsistencies in affidavits.

All settlement funds were ordered to be placed into a structured settlement and paid into court until an authorized guardian of property is appointed, with a new management plan required.

The respondent father brought a motion for reunification counselling with his daughter, interim spousal support, interim disbursements, and an equalization payment advance.

The applicant mother opposed the relief.

The court found it had jurisdiction under the Children's Law Reform Act to order reunification therapy and directed the parties to engage a specified therapist.

The court awarded the father interim spousal support of $500 per month but dismissed his claims for interim disbursements and an equalization advance, finding the mother lacked the means and the test for an advance was not met.

The plaintiff brought a motion for summary judgment against the defendants for vacant possession and payment under four mortgages in default.

The defendants argued that the guarantees and collateral mortgages signed by the spouses were unenforceable due to undue influence by their husbands.

The court found no genuine issue requiring a trial, noting that the spouses had received independent legal advice and signed the documents despite advice to the contrary.

The court held there was no evidence of actual or presumed undue influence.

Summary judgment was granted, ordering monetary judgments and writs of possession.

This costs endorsement followed a three-day trial in a family law matter.

The applicant sought costs against the respondent husband and his mother.

The court found the applicant largely successful on the major trial issues of equalization of property and spousal support.

The respondent husband was found to have engaged in unreasonable conduct, particularly regarding property disclosure and trial presentation, which necessitated extensive litigation.

The respondent mother's claim for costs against the applicant was dismissed, as her involvement stemmed from the respondent husband's lack of clarity.

The applicant was awarded partial recovery costs against the respondent husband.

The applicant, Anna Maria Fiorito, made an assignment in bankruptcy after being ordered to pay $200,000 in costs to the respondent, Jefferson Ross Wiggins, arising from protracted family law litigation.

The respondent moved for an order annulling the bankruptcy or, alternatively, lifting the stay of proceedings under section 69.4 of the Bankruptcy and Insolvency Act (BIA) to enforce the costs award against the applicant's exempt assets (RRSPs and other investment assets).

The court found that the applicant had misled the court and the respondent regarding her intention to pay costs and not file for bankruptcy.

The court granted the respondent's motion to lift the stay of proceedings, allowing enforcement against exempt assets, and stayed the applicant's bankruptcy discharge for eight months to facilitate enforcement.

This endorsement addresses the costs of two motions concerning section 7 expenses, where the respondent father was the moving party.

The respondent's claim and offer to settle significantly exceeded the ordered outcome.

While the applicant mother's offer was more reasonable, it was made late, and she had initially resisted contribution and failed to file a financial statement.

Considering these offsetting factors, the court awarded the applicant mother $900 in costs for the final preparation and argument of the second motion.

This decision addresses costs following the dismissal of the defendant's motion to compel the plaintiff to answer undertakings and re-attend for examination.

The motion was dismissed due to its late timing and the defendant's counsel's delay and discourteous conduct.

The plaintiff sought substantial indemnity costs, arguing the motion was brought inappropriately late.

The court awarded partial indemnity costs, finding the defendant's counsel's conduct inappropriate but not rising to the level warranting substantial indemnity, and applied the principles of reasonableness and access to justice under Rule 57.01 and the Courts of Justice Act.

The plaintiff brought a motion seeking leave to amend her statement of claim to change the defendant's name from "Sheraton Hotels and Resorts" to "Four Points by Sheraton Toronto Airport" and to change the location of the alleged slip and fall.

The court dismissed the motion, finding that it was not a case of misnomer but an attempt to add a new party after the limitation period had expired.

The court found no evidence to support the plaintiff's claim of misnomer or that the proposed defendant had timely notice of the incident, and noted significant prejudice to the proposed defendant.

This decision addresses a cost award following a Motion to Change brought by the Respondent, Pamela Branson, which was largely dismissed.

The Applicant, Larry Branson, sought $32,777.34 in costs.

The Respondent challenged the partial indemnity rate applied and the full recovery of the cost for a jointly commissioned expert report (Collins Barrow Report).

The court found the Applicant to be the successful party and awarded the full amount of costs sought, concluding that the fees and disbursements were reasonable and proportionate, and rejecting the Respondent's arguments regarding the indemnity rate and expert report cost.

The defendant, M.P., was charged with sexual assault.

The Crown alleged non-consensual sexual intercourse, while the defendant claimed consent.

The court considered the conflicting testimonies of the complainant, Ms. H., and the defendant, M.P., as well as a third witness, Ms. D.S. The judge noted numerous significant inconsistencies in the Crown witnesses' accounts across multiple interviews and hearings, and found the defendant's testimony problematic due to admitted lies and internal inconsistencies.

Ultimately, the court found that the totality of the conflicting evidence left a reasonable doubt as to whether the complainant consented to sexual intercourse, leading to the dismissal of the charge.

The plaintiff subcontractor brought a motion under Rule 6.01 to have its action against the general contractor tried together with or immediately following a companion action brought against it by its sub-subcontractor.

Both actions arose from delays and scope changes on the same construction project.

The court applied the Master Dash factors and concluded that the actions shared interwoven issues regarding project changes and delays, creating a risk of inconsistent findings if tried separately.

The motion was granted, and the court ordered the actions to be tried consecutively, with the plaintiff's action proceeding first.

The applicant moved to vary spousal support based on an amending separation agreement registered under the Family Law Act, arguing it became an order under the Divorce Act and a material change in circumstances (19% income reduction) justified a reduction.

The respondent opposed, arguing it should be treated as an initial application under s. 15.2 of the Divorce Act, not a variation under s. 17, as the agreement was not incorporated into a divorce order.

The court found that an agreement registered under the Family Law Act does not become an order under the Divorce Act for variation purposes and that neither party had properly brought an application under s. 15.2 of the Divorce Act.

The motion was dismissed, but the parties were given 30 days to address the court on how to proceed.

The Plaintiff, Enercare Inc., brought a motion to strike portions of the Defendant's (Energy Canada Home Services Inc.) Statement of Defence and Counterclaim (SDC).

The motion sought to strike allegations of anticompetitive conduct, fraudulent misrepresentation, negligent misrepresentation, and unjust enrichment.

The court struck the allegations of anticompetitive conduct, fraudulent misrepresentation, and unjust enrichment, granting leave to amend.

The claim for negligent misrepresentation was struck without leave to amend, as the court found no reasonable chance of success, particularly regarding a duty of care between competitors.

Costs were awarded to the Plaintiff.

The defendant was charged with sexual assault and sexual interference involving his spouse's 12-year-old niece, JW.

The incident occurred during a family visit, where JW alleged the defendant lightly touched her breast and she later observed him making "jerking movements" in his groin area.

The defendant testified he was attempting to wake JW to move her from an uncomfortable sleeping arrangement and denied any intentional sexual touching, suggesting the breast contact was accidental while reaching for her shoulder.

The court applied the R v W(D) test for conflicting evidence and the R v Chase factors for sexual assault.

The judge found both witnesses credible but concluded that the touching was likely accidental and lacked sexual connotation or aggression.

The Crown failed to prove guilt beyond a reasonable doubt, and the defendant was acquitted.

The applicant mother sought an interim order for her eldest daughter, Nora, to attend École Trille des Bois and its after-school daycare program, following her relocation to a new school district.

The respondent father opposed, requesting Nora remain at École Élémentaire Francojeunesse, the school she previously attended.

The court, noting the high-conflict nature of the parties' litigation and the father's lack of a viable alternative plan for Nora's daily care, granted the mother's motion on a temporary, without prejudice basis.

The judge found the mother's plan to be in the child's best interests, as it provided a comprehensive solution for school and daycare without requiring a variation of the father's limited access schedule.

The father's credibility was also questioned regarding his claims of ignorance about the mother's address and the child's bus travel history.

This supplemental decision clarifies a typographical error in the accrued interest calculation from a prior ruling dated September 6, 2016.

It sets the final amount payable by the defendants to the plaintiff at $131,095.48.

The court declined the plaintiff's request for an additional tax amount and the defendants' request for an interest credit.

It also declined the plaintiff's request for an order regarding future repairs.

The decision outlines the final payment schedule, mortgage discharge obligations, and dismisses the action without further costs assessment.

The moving party, Pruna, sought summary judgment to dismiss the claim against him, discharge a construction lien, and vacate a certificate of action.

The motion was dismissed due to multiple triable issues, including the supply and installation of paving stone, the commercial relationship between the plaintiff and co-defendant Lansbridge, the nature of Pruna's contractual relationship with Lansbridge, the amount of holdback, and the identification of the party with contractual liability.

The court found that summary judgment would not provide a fair and just adjudication, as credibility was a primary issue requiring oral evidence.