SCJ 2017

During a civil jury trial for damages arising from a motor vehicle accident, the court ruled on whether questions regarding the plaintiff's future loss of income, future medical treatment, and future mileage expenses should be put to the jury.

The court found that the plaintiff failed to provide sufficient evidentiary foundation, such as vocational, occupational, or economic expert evidence, to support these claims.

Concluding that leaving these questions to the jury would invite speculation, the court ruled that the questions would not be put to the jury.

The plaintiff staffing agency brought a motion for summary judgment for unpaid invoices relating to temporary workers provided to the defendant.

The defendant admitted liability for the invoices but raised an equitable set-off defence, alleging the plaintiff was negligent or breached the contract in relation to a prior fraudulent scheme orchestrated by the defendant's own manager involving 'phantom labourers'.

The court granted summary judgment, finding that the equitable set-off defence failed because the prior fraudulent invoices were not sufficiently closely connected to the unpaid invoices to directly impeach the plaintiff's claim.

The court heard a motion for directions regarding the disposition of settlement trust monies held following a dispute between trustees of a religious organization.

A third-party creditor sought standing and payment of the monies, arguing they were the source of the funds.

The court denied the creditor standing, finding they had no direct interest in the accounting between the trustees.

The court granted standing to the organization and the two trustees who paid the settlement monies, and directed that an accounting hearing proceed despite the organization being in receivership.

Following a decision on an application regarding a solicitor's retainer agreement, the successful respondent lawyer sought full indemnity costs of $37,420.53.

The applicants argued no costs should be awarded.

The court considered the factors under Rule 57.01, noting the matter was unnecessarily complicated by both sides but the respondent was entirely successful.

The court declined to award full indemnity costs and fixed costs at $15,000 inclusive of fees, disbursements, and HST.

The self-represented accused brought pre-trial applications challenging the constitutionality of several provisions of the Criminal Code, including Part 18, s. 523, s. 524, and s. 145(3).

The court dismissed the applications, finding that the challenges to Part 18 and the bail provisions had already been decided by another judge and were therefore res judicata, as well as moot since the preliminary inquiry had ended and the accused had been released on bail.

The challenge to s. 145(3) was also dismissed as moot because the breach of bail charges had been stayed.

The respondent father brought a motion for interim primary residence of the parties' child, seeking to relocate the child to Ottawa.

The applicant mother brought a cross-motion for interim primary residence and child support.

The court found that the status quo was that the child resided primarily with the mother.

The court held that a temporary order should not disrupt the status quo without compelling reasons, and that the father's proposed move to Ottawa was untested and would be a significant disruption to the child.

The court ordered that the child reside primarily with the mother, with the father having access three weekends per month and bi-weekly evenings.

The father was ordered to pay child support.

The father was awarded costs of $7,500 as he was the successful party based on his offer to settle.

The plaintiff was injured in a motor vehicle accident while a passenger in a van driven by a 16-year-old unlicensed driver.

The driver had taken the van, owned by his mother, without her permission while she slept.

In this liability trial, the court found the driver negligent but dismissed the claims against the mother, finding she did not give express or implied consent to possession of the vehicle and was not negligent in securing her keys.

The court also found the plaintiff ought to have known the vehicle was taken without consent, thereby excluding him from uninsured motorist coverage under the mother's insurance policy.

The plaintiffs brought a motion seeking the production of a chain of emails between the defendant's counsel and the defendant.

The defendant opposed the motion on the grounds of solicitor-client privilege.

After a confidential review of the emails, the court found that the communications involved instructions and legal advice between a solicitor, his law firm, and their client, and were intended to be confidential.

The motion for production was dismissed.

The plaintiff brought a motion to continue an interim interlocutory injunction restraining the defendants from shutting down its website pending trial over a software license fee dispute.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried, the plaintiff failed to establish irreparable harm because damages would be an adequate remedy.

The court also found the balance of convenience favoured the defendants, as an injunction would be akin to ordering specific performance of a contract for personal services.

The motion was dismissed, but the court extended the interim injunction for six months on terms to allow the plaintiff time to find replacement software.

The accused, while in custody, counselled a fellow inmate and an undercover police officer to murder his ex-girlfriend to prevent her from testifying against him in an upcoming trial.

The Crown's case relied heavily on the testimony of the fellow inmate, a 'Vetrovec' witness with a lengthy criminal record.

The court found the inmate's testimony credible and substantially corroborated by objective evidence, including a recorded phone call between the accused and the undercover officer.

The accused was found guilty of counselling murder and attempting to obstruct justice.

The plaintiff brought a motion for leave under Rule 48.04(1) to compel further discovery and production of documents from the defendants, specifically seeking unredacted daytimers and a fourth re-attendance for discovery.

The court granted leave to bring the motion but dismissed the substantive requests, noting the long-standing knowledge of the daytimers, the imminent 20-day trial, and the unreasonableness of ordering a further re-attendance at this late stage.

Costs of $5,000 were awarded to the responding defendants.

The applicants, RGL Reservoir Management Inc. and 10504360 Canada Inc., sought an interim order under section 192(4) of the Canada Business Corporations Act (CBCA) to approve procedural matters for meetings of secured debtholders and shareholders to vote on a proposed plan of arrangement.

The arrangement aimed to effect a recapitalization transaction, reducing RGL's indebtedness by approximately $333 million and annual cash interest expense by $20 million.

The court granted the motion, finding that the proposed arrangement met the statutory requirements of the CBCA, was put forward in good faith for a valid business purpose, and that it was impracticable to achieve the fundamental change through other CBCA provisions.

The court also approved a limited stay of proceedings to facilitate the transaction.

The defendant landlord brought a motion to discharge an ex parte Certificate of Pending Litigation (CPL) obtained by the plaintiff tenant regarding a hotel property.

The tenant had a right of first refusal to match a third-party offer to purchase the property.

After the third-party transaction failed, the landlord offered the property to the tenant on the same terms, but the tenant sought to amend its claim to enforce a different agreement with an abatement of the purchase price.

The court found that the tenant's only enforceable right was to match the original offer, which it failed to do.

Applying the factors for discharging a CPL, the court concluded the CPL should be vacated as the tenant no longer had a reasonable claim to the interest in the land on the terms originally pleaded.

The accused was charged with 28 counts relating to the robbery of an unmarked police vehicle, including theft of firearms, ammunition, and police equipment.

The Crown's case was entirely circumstantial, relying on a handprint on a package of paper and the accused's subsequent arrest in a stolen vehicle containing some of the stolen items.

The court found the forensic evidence unreliable and concluded the Crown failed to prove beyond a reasonable doubt that the accused had knowledge and control of the stolen items or committed the robbery.

The accused was acquitted on all counts.

The plaintiff brought a proposed class action for secondary market misrepresentation against the defendants under the Ontario Securities Act and common law.

The defendants brought motions to restrict the class to Canadians who purchased shares on the TSX, arguing that the Ontario court was forum non conveniens for Canadians who purchased on NASDAQ, and that American law should apply to those claims.

The court dismissed the motions, finding that the defendants failed to show that the U.S. was a clearly more appropriate forum, and that the statutory cause of action under the Ontario Securities Act applies extra-territorially to Canadian purchasers on foreign exchanges.

The parties disputed the date of separation and the equalization of net family property following their marriage breakdown.

The applicant claimed a separation date of September 2015, while the respondent claimed May 2015 when he discovered the applicant's extra-marital affair.

The court found the applicant's evidence lacked credibility and accepted the respondent's separation date of May 20, 2015.

The court also found the respondent had a 50% beneficial interest in a condominium in Taiwan registered in the applicant's name, applying the presumption of resulting trust.

However, the court accepted that a $400,000 payment to the applicant's father from the sale of a property was a valid debt deduction for the applicant.

The applicant was ordered to pay an equalization payment and a share of post-separation property expenses.

Following a seven-day trial on the issue of regular access, the court determined the appropriate parenting schedule for a three-year-old child.

The mother, who had primary residency by agreement, sought to limit the father's access to two overnights every fourteen days, citing past incidents of domestic violence and concerns about his parenting.

The court found that while three incidents of violence did occur during the relationship, the father is a capable and loving parent.

Applying the maximum contact principle, the court ordered an expanded access schedule for the father, including mid-week overnights, tailored to accommodate his continental shift work schedule.

The plaintiff school brought an action for defamation against two former students and their paralegal based on an email the paralegal sent to York University inquiring about the school's relationship with the university.

The defendants brought a motion for summary judgment to dismiss the action, arguing the email was protected by absolute privilege.

The court granted the motion, finding that the email was a reasonable pre-litigation communication made in the course of investigating the clients' claims and was therefore protected by absolute privilege.

This motion concerned a garnishment dispute in a family law matter.

The respondent sought to garnish the applicant's Canada Pension Plan (CPP) disability benefits and Ontario Disability Support Program (ODSP) payments to satisfy a substantial lump sum spousal support award and other arrears.

The applicant, who was self-represented, argued that garnishing his modest income, derived solely from these benefits due to severe psychological conditions and unemployment, would be severely prejudicial.

The court, applying equitable principles to garnishment, considered the applicant's near-poverty living conditions against the respondent's comfortable lifestyle and significant wealth.

While acknowledging that CPP benefits are partially garnishable for support orders, and ODSP payments are generally exempt unless enforced by the Family Responsibility Office, the court exercised its discretion to set aside all notices of garnishment, finding it inequitable to deprive the applicant of his sole means of support.

Andre Evans, an adult offender, sought orders of prohibition and certiorari to prevent the Crown from using his youth records as an aggravating factor in his sentencing hearing.

The Crown had previously obtained an order from a youth court justice under s. 123 of the Youth Criminal Justice Act to access these records after the prescribed access period expired.

Evans argued that the youth court justice exceeded jurisdiction by granting access and that using the records would compromise his right to a fair trial due to principles of privacy and rehabilitation for young persons.

The court dismissed the application, finding that the youth court justice acted within jurisdiction and that society's interest in truth-seeking and public safety outweighed Evans' privacy interest, which could be protected by a publication ban.