SCJ 2016

Douglas LaFramboise sought leave to amend his Statement of Defence to Cross-Claim and add a counterclaim for defamation against The Toronto-Dominion Bank.

The Bank consented to the amendment of the Statement of Defence but opposed the counterclaim, arguing it lacked legal foundation and was protected by absolute privilege.

The court, applying Rule 26.01, found that statements made in pleadings are protected by absolute privilege, meaning the proposed counterclaim for defamation had no reasonable chance of success.

The motion to amend the Statement of Defence to Cross-Claim was allowed on consent, but the motion to add the counterclaim was dismissed.

The applicants, facing multiple murder charges, brought a last-minute application to seal emails seized under a general warrant and prohibit Crown and police access, alleging facial invalidity and abuse of process.

This application followed an earlier agreement to return non-privileged emails to the Crown.

The court, acting as the trial judge on the eve of trial, deferred the full review of the warrant's validity to pretrial motions, emphasizing trial management and procedural fairness.

The court also found the warrant not facially invalid on a preliminary review and noted the defence's failure to adhere to the prior agreement regarding email return.

The defendant, Wikwemikong Nursing Home, brought a motion to transfer the plaintiff's wrongful dismissal action from Toronto to Gore Bay, Manitoulin Island.

The court considered the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure, finding that the substantial part of the events, the subject matter, and local community interest strongly favoured Gore Bay.

Despite the plaintiff's personal circumstances and damages being sustained in Toronto, the overall convenience of witnesses and the operational requirements of the defendant's long-term care home also supported the transfer.

The court granted the defendant's motion, concluding that the interests of justice required the transfer to Gore Bay.

This motion concerned a long-standing custody dispute between self-represented parents regarding their child, William, born in 2001.

The respondent mother sought a temporary order to change custody of William, allowing him to reside with her in New Brunswick for the 2016-2017 school year.

Despite the mother's history of non-compliance with previous court orders and creating family chaos, the court granted the temporary order, acknowledging William's consistent preference to live with his mother and aiming to end years of conflict.

The court retained Ontario's jurisdiction and imposed several ancillary conditions, including continued involvement of the Office of the Children's Lawyer, arrangements for William's visits with the father, and access to school records.

The defendant, State Farm, brought a summary judgment motion to dismiss the plaintiff's claim for chiropractic treatments and a declaration of entitlement to future medical rehabilitation benefits following a motor vehicle accident.

The court found the case appropriate for summary judgment, noting the small amount in question ($4,090) and the availability of expert evidence.

The court concluded that the plaintiff failed to demonstrate that the proposed chiropractic treatment plan was reasonable and necessary, as expert opinions emphasized active, self-directed rehabilitation over passive treatments.

The motion was allowed, and the plaintiff's claims were dismissed.

The Town of Caledon and Waterstone Properties Corporation (and Wyndcliffe Developments Inc.) brought cross-applications concerning the beneficial ownership of a 2.8-acre parkette.

Waterstone claimed beneficial ownership based on a 1972 subdivision agreement with a re-conveyance clause, arguing its inclusion in a subsequent 1973 agreement was a mistake.

The Town asserted ownership based on the unconditional transfer provision in the 1973 agreement, and alternatively, through adverse possession or dedication and acceptance.

The court found the 1973 agreement superseded the 1972 agreement, that the inclusion of the parkette in the 1973 agreement was not a mistake, and that the Town was the beneficial owner.

The court also found that the Town would have succeeded on adverse possession and dedication and acceptance.

Waterstone's application was dismissed, and the Town's application was granted.

The applicant condominium corporation sought relief from an allegedly oppressive shared facilities agreement (CRA) imposed by the declarant developer, and brought several actions for construction deficiencies and property management breaches.

The court found the CRA produced an oppressive result due to the conflicted manager's conduct and amended the agreement to allow the condominium to terminate the manager without cause.

The court also ruled on multiple summary judgment motions regarding construction deficiencies, dismissing the first action as a nullity for lack of statutory notice to owners, and granting summary judgment on various specific deficiency claims based on limitation periods and warranty coverage.

Damages were awarded for specific proven deficiencies and against the former property manager for failing to maintain insurance records.

The defendant dentist moved for summary judgment in a dental negligence claim without filing any expert evidence on the merits of his defence, relying on previous case law suggesting defendants need not do so.

Following the release of the Court of Appeal's decision in Sanzone v. Schecter, which clarified that moving defendants must put their best evidentiary foot forward under Rule 20.01(3), the court dismissed the summary judgment motion.

The court held that the defendant failed to discharge his evidentiary burden to prove there was no genuine issue requiring a trial.

The applicants sought an order extending the time to complete minutes of settlement and to restrain the defendants from exercising rights to obtain vesting orders.

The defendants brought a cross-motion for a vesting order.

The applicants argued that the defendants' failure to remove outdated MLS listings, which were improperly filed during previous foreclosure proceedings, hindered their ability to sell properties and satisfy the settlement.

The court, exercising its equitable jurisdiction, found that the defendants' improperly maintained listings impeded the applicants' performance.

The court granted the applicants' motion, ordering the removal of the listings and a four-month extension for compliance, with interest continuing to accrue.

The defendants' motion for a vesting order was dismissed.

The plaintiff, Claudine Benjamin, brought an action against Primerica Life Insurance Company of Canada, Masoud Movahedi, and Hooper-Holmes Canada Ltd. Primerica moved to strike the jury notice, arguing the plaintiff claimed declaratory relief or that a mixed jury/non-jury trial was impractical.

The plaintiff cross-moved to serve a jury notice in a previously consolidated action.

The court set aside the consolidation order, granted the plaintiff's unopposed motion to serve a jury notice in the second action, and dismissed Primerica's motion to strike the jury notice.

The court found that the plaintiff's claim, though framed as a "declaration," was in essence a claim for damages based on factual findings regarding insurance coverage, not purely declaratory relief under s. 108(2) of the Courts of Justice Act.

The Public Guardian and Trustee (PGT) and the defendant police officers brought a motion seeking a declaration that Lina and Paul Lochner lacked standing to challenge a court-approved settlement concerning George Lochner, a party under disability.

The court found that Lina and Paul had received courtesy notice of the settlement approval motion but were not legally entitled to notice, nor were they "affected persons" under Rule 37.14(1) as their proprietary or economic rights were not impacted.

The court granted the PGT's motion, declaring Lina and Paul had no standing, and awarded costs against them due to their unmeritorious arguments and disruptive courtroom behaviour.

The court also initiated a process under Rule 2.1.02 to summarily dismiss Lina and Paul's own motion to set aside the settlement judgment as an abuse of process.

The applicant mother sought an order to dispense with the respondent father's consent to sell their jointly owned residence and to strike his pleadings.

The respondent father brought a cross-motion to dispense with the mother's consent to sell the residence, to have the mother found in contempt, and to vary or set aside an order that had denied him the right to be heard.

The court varied the order to allow the father to be heard, provided detailed directions for the sale of the matrimonial home, including a mechanism for the father to proceed unilaterally if the mother failed to cooperate.

The court also varied the child access order to introduce gradual overnight access for the father, noting the mother's unilateral actions regarding the child's healthcare and lack of support for the father-child relationship.

The mother's motion to strike pleadings was dismissed, and the contempt motions were adjourned sine die.

The plaintiff moved for directions to pre-emptively dismiss or stay the defendant Dr. Shah's motion for summary judgment and to prevent cross-examination of the plaintiff's expert witnesses.

The plaintiff argued the case was complex, the defendant had no realistic prospect of success, and the process was burdensome and raised access to justice concerns.

The court dismissed the plaintiff's motion, finding that the summary judgment motion was not an abuse of process and that the defendant had the right to complete the evidentiary record, including cross-examining experts.

The court imposed terms to ensure the summary judgment motion proceeded as scheduled.

The Applicant sought final sole custody, no access for the Respondent, and permission to relocate with the children to Australia.

The Respondent sought therapeutic supervised access and temporary spousal support.

The court granted the Applicant final sole custody and permission to relocate, dismissing the Respondent's motion for therapeutic supervised access, citing the Respondent's past criminal conduct against the children and paternal grandmother.

The court found it was in the children's best interests to deny access and permit relocation.

The Respondent was granted temporary spousal support in a reduced lump sum, with the court departing from Spousal Support Advisory Guidelines (SSAG) calculations due to the unique circumstances and the Respondent's conduct.

The defendants brought a motion for an order requiring the plaintiff to attend a defence assessment with an occupational therapist.

The court noted a jurisdictional issue regarding whether a master has the inherent jurisdiction to order an examination by a non-health practitioner, but proceeded to hear the motion based on prior authority.

Applying the test from Ziebenhaus, the court found that the defendants already had a clear and unequivocal report from a physiatrist stating the plaintiff's injuries did not impact her ability to work or carry out normal activities.

The court concluded the requested assessment was merely to corroborate the existing report or obtain a matching report, which was insufficient.

The motion was dismissed.

The parties sought costs for a motion where the applicant sought a change in exchange time for their daughter and the respondent sought leave to abridge timelines for an expert report and an increase in child support.

The court found that success on the motion was divided, as the respondent was unreasonable on the exchange time issue but the applicant should have recognized an increase in child support was inevitable.

The court declined to make an order for costs in favour of either party.

The Superior Court of Justice considered a requisition under Rule 2.1.01(6) to review the plaintiff's statement of claim for being frivolous, vexatious, or an abuse of process.

The plaintiff, M.S. (Manorama Sennek), sued the defendant lawyers for their representation of a condominium corporation in other proceedings, alleging disclosure of identity and seeking various declarations and substantial damages.

The court found insufficient factual pleading for most claims and noted the plaintiff's history of litigation, including a prior order for a mental capacity assessment in related cases.

The court ordered notice to the plaintiff regarding the potential dismissal of the action, stayed the action, and restricted further filings pending the Rule 2.1 hearing.

The applicants, Michael Wong and Michael Singh, brought an application under section 11(b) of the Canadian Charter of Rights and Freedoms, seeking a stay of proceedings due to unreasonable delay in their criminal trial for drug production and trafficking.

The court applied the new framework established in R. v. Jordan, calculating the total delay from the date charged to the anticipated end of trial, subtracting defence-attributable delay.

The total delay for Mr. Wong was 29 months and for Mr. Singh was 28 months and three weeks, both falling below the 30-month presumptive ceiling for Superior Court cases.

The court also considered potential exceptional circumstances, such as jurisdictional issues and the striking of guilty pleas due to a misapprehension about conditional sentences, but ultimately found no breach of section 11(b) and dismissed the applications.

The accused, K.B., was charged with sexual assault and related collateral charges.

The Crown alleged K.B. sexually assaulted the complainant, SW, while driving her home.

The court assessed the credibility and reliability of the complainant, the accused, and the accused's spouse, TL, noting inconsistencies and potential motives.

The complainant had significant mental health issues and was under the influence of medication and marijuana at the time of the alleged incident.

The court found that the evidence, taken as a whole, left a state of uncertainty, and the Crown failed to prove K.B.'s guilt beyond a reasonable doubt.

K.B. was acquitted.

The plaintiff, Timothy Bonello, was severely injured in a tug-of-war game at Gores Landing Marina, resulting in hand amputation.

He sued the Marina and its owner-operators for negligence under the Occupiers' Liability Act.

The defendants brought a summary judgment motion to dismiss the main action.

The court granted the motion, finding that the defendants met the reasonable standard of care.

The Marina was not obliged to prohibit recreational activities or supervise tenant-organized events, nor could it have reasonably foreseen the specific circumstances leading to the injury, such as the use of a looped rope or the lack of rudimentary safety equipment.