SCJ 2017

Joyce Bernstein, the successful plaintiff in a class action certification motion against Peoples Trust Company and Peoples Card Services LLP, sought costs of $146,492.72.

Peoples Trust disputed the amount, arguing for divided success due to a reduced class period based on limitation periods, and proposed $120,000 with a portion payable in the cause.

The court awarded the full amount sought by Bernstein but ordered $10,000 of it to be payable in the cause.

The court found no divided success on the certification motion itself but deemed the plaintiff's failure to concede the limitation period issue as conduct that unnecessarily lengthened proceedings, warranting a small portion of costs to be payable in the cause as a salutary message against over-pleading in class actions.

This decision addresses eight motions in a billion-dollar secondary market securities class action.

The court granted motions by SNC-Lavalin and its Outside Directors to strike paragraphs from the Plaintiffs' Amended Reply and dismissed the Plaintiffs' motion to deliver a Fresh as Amended Reply, finding that the Plaintiffs were attempting to plead a new, uncapped liability claim without leave and reintroduce previously rejected allegations of bribery in Libya.

The court also granted motions by the Outside Directors and Michael Novak to strike paragraphs from Riadh Ben Aïssa's Statement of Defence, which similarly attempted to introduce allegations of bribery in Libya and knowledge against co-defendants beyond the scope of the granted leave.

Additionally, the court granted protective orders for the examinations for discovery of Messrs.

Ben Aïssa, Duhaime, and Roy, who faced criminal charges, to protect their Charter rights and the integrity of criminal proceedings, but denied requests to stay or postpone discoveries.

The appellant, John Morrison, appealed his conviction for assault causing bodily harm on two grounds: reasonable apprehension of bias by the trial judge and misapprehension of evidence.

The appeal court reviewed the trial judge's interventions during cross-examination of a vulnerable witness and her comment about 'setting up an appeal,' concluding that an informed person would not find a reasonable apprehension of bias.

Regarding the misapprehension of evidence concerning a defence witness's criminal record, the court found it was a factual error that did not impact the substantive issues or result in a miscarriage of justice.

The appeal was dismissed.

The plaintiff brought a motion for summary judgment seeking $102,898.22 for an alleged breach of a lease agreement by the defendant.

The defendant contended that an early termination clause from the original lease was carried forward into a subsequent lease amending/extension agreement.

The court found that the early termination clause was a specific, time-sensitive provision that had expired and was not implicitly incorporated into the new agreement.

Consequently, the plaintiff's motion for summary judgment was granted.

This dental malpractice action involved two summary judgment motions based on limitation periods.

The defendant dental surgeon, Dr. Harper, argued the action was time-barred by the one-year limitation period in the Health Professions Procedural Code.

The defendant Hospital relied on the two-year limitation period in the Public Hospitals Act.

The court dismissed Dr. Harper's motion, finding a genuine issue for trial regarding the plaintiff's discoverability of biological hazards.

However, the Hospital's motion was granted, as its limitation period was not subject to discoverability and had expired years before the action was commenced.

L'accusé, Jacques Lalonde, a plaidé coupable d'avoir communiqué dans le but d'obtenir et obtenu moyennant rétribution les services sexuels d'une personne de moins de dix-huit ans, en violation du paragraphe 212(4) du Code criminel.

La Cour a d'abord examiné une contestation en vertu de la Charte, déclarant la peine minimale obligatoire de six mois prévue par l'article 212(4) inconstitutionnelle et inopérante, car elle pourrait entraîner des peines cruelles et inusitées dans des scénarios hypothétiques raisonnablement prévisibles.

Pour la détermination de la peine, la Cour a pris en compte des facteurs aggravants, notamment des incidents multiples, l'exploitation d'une victime vulnérable et le ciblage d'une jeune fille de 16 ans, ainsi que des facteurs atténuants tels que l'absence d'antécédents judiciaires et l'expression de remords.

La Cour a imposé une peine de 12 mois d'emprisonnement, suivie d'une période de probation de 12 mois avec des conditions spécifiques, une ordonnance de 10 ans en vertu de l'article 161, un prélèvement d'échantillon d'ADN et une inscription de 10 ans au registre des délinquants sexuels.

This is a costs endorsement following a motion by Mr. Khan for increased access to the children, on which he was substantially successful.

Both parties sought costs.

Ms. Khan sought $16,941.36, and Mr. Khan sought $22,363.63.

The court considered Rule 24 of the Family Law Rules and Rule 131(1) of the Courts of Justice Act, noting Mr. Khan's substantial success on the underlying motion and Ms. Khan's inflexibility regarding access.

Despite questioning the time spent by Mr. Khan's counsel given the issues' simplicity, the court fixed costs at $15,000 inclusive, to be paid by Ms. Khan to Mr. Khan within 90 days.

The applicants sought to set aside a land transfer from Robert Graham to his daughter, Elizabeth Graham, for nominal consideration, and to set aside an Order to Continue.

The court found that the transfer violated the terms of a 1960 agreement which required prior written consent from other owners for any alienation of a share, including inter vivos gifts to family members.

The court rejected the respondent's arguments that the agreement only applied to third parties, that consent was unreasonably withheld, or that the agreement was unenforceable under the Land Titles Act.

The applicants' motion was granted, the transfer was declared invalid, and the Order to Continue was set aside.

The applicant sought approval of a plan of arrangement under s. 192 of the Canada Business Corporations Act as part of a larger corporate restructuring.

The court was satisfied that the arrangement was fair and reasonable, and that the emerging entity would be solvent.

Although the court expressed reservations about granting orders preventing third parties from enforcing rights based on cured defaults outside of a CCAA proceeding, it ultimately granted the requested relief to protect the sanctity of the arrangement.

The applicant, Franklin Konopaski, sought remedies under sections 207 (winding up) and 248 (oppression) of the Business Corporations Act against his son, Michael Konopaski, and their jointly owned corporations, following an irrevocable breakdown in their business and personal relationship.

The court found that the required trust and confidence between the business partners no longer existed.

The appropriate remedy was an order for Michael to purchase Franklin's interest in their joint enterprise at fair market value, and an equalization of commissions from their investment business for the period of September 2014 to June 2016.

The court determined the valuation date to be June 30, 2016, and rejected the inclusion of Michael's solely owned professional corporations in the joint enterprise valuation, as well as the continued sharing of Michael's CFO salary.

Dirm 2010 Inc. brought a construction lien claim against Prestressed Systems Incorporated (PSI) for unpaid work on a concrete topping subcontract for a parking garage.

PSI counterclaimed, alleging Dirm's work was defective and that Dirm fundamentally breached the contract.

The court found that the contract consisted of the negotiated terms, not the onerous unsigned purchase order PSI attempted to impose.

The court held that Dirm's work, while requiring some remediation, did not constitute a fundamental breach.

PSI breached the contract by terminating Dirm without reasonable opportunity to cure and without justification.

Dirm was awarded $1,315,159.20 for completed work, allowable extras, and lost profit, less reasonable backcharges for deficiencies.

This endorsement addresses costs following the applicant's success in responding to the respondent's motion for interim spousal and child support.

The applicant sought costs on a substantial indemnity basis, citing the respondent's unreasonable behaviour, including requiring a procedural motion for an adjournment and rejecting more favourable settlement terms.

The respondent did not provide costs submissions.

The court found the applicant was entitled to costs on a substantial indemnity basis, applying Rule 24 of the Family Law Rules.

The court fixed costs at $3,880, payable from the respondent's share of the matrimonial home proceeds, adjusting the applicant's requested amount based on a calculation of substantial indemnity from full indemnity figures and considering the parties' limited means.

The respondent brought a motion to stay a family law proceeding, arguing that minutes of settlement constituted a binding arbitration agreement for child and spousal support issues.

The applicant opposed the motion, asserting that the minutes of settlement did not meet the mandatory formal requirements for family arbitration agreements under O. Reg. 134/07 of the Arbitration Act, 1991.

The court dismissed the motion, finding that the minutes of settlement lacked the necessary formalities and that the parties' subsequent conduct indicated an understanding that a secondary, formal arbitration agreement was a condition precedent.

This endorsement addresses the issue of costs following a successful motion for temporary spousal support and an unsuccessful motion for interim disbursements.

The court found the applicant to be the successful party, despite the respondent's offer to settle, as the respondent's core position on spousal support was rejected.

Costs were fixed at $3,000 on a partial indemnity basis, payable forthwith by the respondent and treated as spousal support for enforcement.

This trial concerned a dispute between former friends over funds from the sale of a property held in trust.

The applicants, Kim Pearson and Renuka Bhansingh, sought an accounting and payment from the respondent, John Corcoran, who held the property title and later the net sale proceeds in a savings account.

The court affirmed the existence of a trust between Kim Pearson and John Corcoran but dismissed Renuka Bhansingh's claim for a trust interest.

The court determined the total amount owed to Kim Pearson by calculating the net proceeds, authorized payments, accrued interest, and income taxes paid by the respondent, and awarded the respondent a reduced amount for trustee compensation.

Look Communications Inc. sued its former director, Gerald McGoey, and his holding company, Jolian Investments Limited, for breach of fiduciary duty.

The claim arose from the board's approval of $20 million in "Contingent Restructuring Awards" (CRAs) to directors, officers, and employees following the sale of the company's primary assets.

The court found that McGoey breached his fiduciary duty by approving excessive CRAs, particularly the equity cancellation payments based on an inflated share price and an unwarranted $2.4 million compensation payment to himself.

The court also found a breach regarding the advancement of legal fees for directors' defense against CRA-related claims.

The court rejected McGoey's defense of reliance on legal advice, as the advice was general and did not cover the quantum or allocation of payments.

The court ordered restitution and imposed a constructive trust over the funds received by McGoey/Jolian.

The plaintiff sought a declaration of sole beneficial ownership of a residential property, alleging her brother, the defendant, held title as a bare trustee.

The defendant counter-claimed for a declaration of co-ownership as a joint tenant with a beneficial interest.

The court found the defendant to be more credible, concluding that he acquired a beneficial interest in the property by purchasing the ex-boyfriend's share, assuming the mortgage, and making significant contributions to improvements and arrears, which were inconsistent with acting as a bare trustee or making gratuitous payments.

The court dismissed the plaintiff's claim and granted the defendant's declaration of 50% legal and beneficial ownership, subject to an accounting.

The plaintiff, Battano Construction Limited, moved for default judgment against the defendant, Maram Building Corp. Maram, whose counsel had withdrawn, sought leave to be represented by its Director and Officer, Mary Pickard, and requested an opportunity to set aside the noting in default.

The court granted leave for Ms. Pickard to represent Maram and found that Maram had substantially complied with previous orders regarding costs and the motion for leave.

Consequently, the court granted Maram 15 days to file a motion to set aside the noting in default, adjourning Battano's default judgment motion pending the outcome.

The accused was charged with sexual assault following an encounter with a 17-year-old complainant in a motel room.

The complainant alleged that she was intoxicated by alcohol and marijuana and was sexually assaulted despite expressing non-consent.

The accused maintained that the sexual activity was entirely consensual.

The court applied the W.(D.) framework to assess the conflicting testimony.

While the court found the accused's evidence to be incredible and incapable of raising a reasonable doubt, it also found significant reliability issues with the complainant's evidence, including memory gaps and inconsistencies.

Consequently, the court concluded that the Crown failed to prove the charge beyond a reasonable doubt and acquitted the accused.

The court ruled on the admissibility of videotaped police statements from the complainant (S.W.) under s. 715.1 of the Criminal Code.

The Crown sought to admit these statements for the truth of their contents.

The complainant experienced significant distress when attempting to watch the videos during testimony and indicated she was hallucinating and not "all there" during the first interview.

The court found that the complainant had not adopted the statements under oath and that their admission would interfere with the proper administration of justice due to compromised reliability and the complainant's distress.

The application for substantive admission was dismissed.