SCJ 2017

During a first-degree murder trial where identification was the sole issue, the defence sought to allow the jury a closer physical view of the accused's eyes.

The only eyewitness had described the shooter as having "colourful eyes," and the defence argued the current courtroom configuration prevented the jury from properly assessing this evidence.

The Crown opposed, contending the request was a formal "view" under s. 652 of the Criminal Code or amounted to calling new evidence.

The court rejected the Crown's arguments, clarifying that a jury's observation of an accused's physical appearance constitutes "real evidence" and is distinct from a formal "view." The court ruled that the jury should be permitted a closer view of the accused's eyes to ensure a fair trial and proper assessment of the evidence, noting that the accused's right to a fair trial should not be contingent on courtroom layout.

The College of Veterinarians of Ontario sought costs after partially succeeding in an application against Birgit Johnston and Cutting Edge K9 Oral Hygiene.

The College had obtained a declaration and injunctive relief prohibiting the respondents from holding themselves out as practitioners of veterinary medicine, though they were not found to be practicing veterinary medicine.

The College requested $15,000 in costs, significantly less than their actual incurred fees of over $75,000.

The self-represented respondents sought costs, but failed to meet the two-part test for self-represented parties to claim costs, specifically lacking evidence of opportunity cost.

The court awarded the College $15,000 in costs, inclusive of HST and disbursements, payable within 90 days, considering partial success and proportionality.

The accused, charged with attempted murder and firearms offences, applied for a bail review under s. 520 of the Criminal Code.

He sought to vacate a detention order based on a new supervision plan involving two sureties and a radio frequency ankle bracelet.

The court applied the Palmer test for new evidence and found that the proposed plan did not represent a material change in circumstances, as the sureties would leave the accused unsupervised during work hours and the ankle bracelet would not prevent re-offending.

The court concluded that detention remained justified on the secondary and tertiary grounds.

The application was dismissed.

The accused applied under sections 8 and 24(2) of the Charter to exclude evidence obtained during the execution of search warrants at two apartment units.

The warrants were based on an Information to Obtain (ITO) relying heavily on confidential informants, resulting in significant redactions in the disclosure provided to the accused.

Following a Garofoli step six procedure, the court reviewed the unredacted ITO, ordered certain excisions, and determined that the judicial summary provided to the accused was sufficient.

The court found the confidential informants' information compelling and credible, compensating for weaknesses in corroboration.

The court also dismissed allegations of impermissible judge-shopping by the police.

The application to exclude evidence was dismissed.

The plaintiffs sued the lawyer who represented the purchaser in a share sale, alleging he falsely stated that funds had been deposited in a trust account.

The lawyer and his firm moved to strike the claims against them.

The court struck the claim for negligent misrepresentation, finding that a lawyer owes no duty of care to an opposing party who is represented by their own counsel.

However, the court refused to strike the claim for intentional misrepresentation, finding the plaintiffs had pleaded all necessary elements.

The court also declined to strike a cross-claim for contribution by a co-defendant bank.

Following a 41-day trial where the plaintiffs' medical malpractice claims regarding TMJ implants were dismissed as statute-barred, the successful defendant hospital sought costs.

The defendant sought partial indemnity costs to the date of its offers to settle and substantial indemnity costs thereafter.

The court declined to apply Rule 49.10 to award substantial indemnity costs, finding no egregious behaviour by the plaintiffs deserving of sanction.

The court awarded the defendant partial indemnity costs for the entirety of the action, totalling $540,604.09 across the three actions.

The self-represented plaintiff commenced two civil actions against police officers and their employer, seeking over $1 million in damages following his conviction for impaired driving.

He alleged the officers' conduct caused him to hire incompetent counsel, leading to his conviction.

The defendants moved to strike the claims.

The court granted the motions, finding the claims were a collateral attack on the plaintiff's criminal conviction, which had already been upheld on appeal.

The court held the pleadings disclosed no reasonable cause of action and constituted an abuse of process, striking them out without leave to amend.

The father brought a motion to change regarding parenting time and access.

The court issued a temporary endorsement ordering scheduled Facetime communication, progressive in-person parenting time in Collingwood, and mandatory participation in the New Ways for Families therapy program.

The parties were also ordered to use Our Family Wizard for communication, with full reasons to follow.

In a case conference endorsement, the court addressed two procedural issues: the plaintiffs' request for all defendants to attend judicial mediation in person, and the defendants' request for leave to bring a motion to resolve approximately 150 discovery objections made under Rule 34.12.

The court declined to compel attendance at mediation, noting that sophisticated commercial parties should negotiate such matters themselves.

Regarding discovery objections, the court denied leave for a pre-trial motion, emphasizing the principles of proportionality, efficiency, and affordability articulated in Hryniak v Mauldin.

The judge stressed that rulings on admissibility under Rule 34.12 are best made by the trier of fact at trial or summary judgment, and that counsel should focus on material objections rather than engaging in expensive interlocutory motions.

An extension for setting the action down for trial was granted by consent.

This endorsement addresses a procedural issue arising from the defendant's attempt to seek an order in Family Court to consolidate a civil action with a Family Law Proceeding, despite prior case management orders in the civil action deferring consideration of such a motion.

The court found the defendant's action to be improper and in non-compliance with its orders, directing the defendant to withdraw the consolidation relief sought in the Family Law Proceeding.

The decision emphasizes the importance of adhering to case management directions and preventing forum shopping between different court lists.

The applicant provided sperm to the respondent and her same-sex partner to conceive a child, with an oral understanding that the applicant would parent the child.

After conception, the respondent and her partner decided to keep the child.

The applicant sought a declaration of sole parentage and sole custody.

The court found the oral agreement did not meet the strict requirements for a valid surrogacy agreement under the newly amended Children's Law Reform Act.

However, using its parens patriae jurisdiction, the court declared the applicant, the respondent, and the respondent's partner to all be legal parents of the child.

The court awarded sole custody to the respondent with a shared parenting schedule, and ordered the child's name to include names chosen by both the applicant and the respondent.

The applicant brought an application for a declaration that a right-of-way granted by the respondent municipality in 1971 included the right to permit parking on the property.

The municipality argued the right-of-way only allowed for access and egress.

The court applied principles of contract and easement interpretation, considering the historical context and subsequent conduct of the parties.

The court declared that the right-of-way included the ancillary right to permit parking to access commercial premises, provided it was non-exclusive and did not amount to occupation.

The applicant brought a motion for an interim payment out of court of funds held to the credit of the action following a shareholder dispute and oppression application.

The court previously ordered funds paid into court as security pending trial.

Relying on a recent Divisional Court decision upholding a similar prior interim payment, the court found the applicant was entitled to the funds under the formula established by the previous order.

The motion was granted and a payment of $392,712.50 was ordered.

Following a summary judgment motion where the plaintiff was awarded $92,500 for wrongful dismissal and successfully defeated the employer's counterclaim regarding restrictive covenants, the plaintiff sought partial indemnity costs of $168,646.51.

The defendant argued no costs should be awarded as the damages matched their termination offer, and that the costs claimed were disproportionate.

The court found the plaintiff was substantially successful, noting the importance of defeating the restrictive covenants, and awarded the plaintiff all-inclusive costs of $150,000.

This case conference in a proposed class action by consumers against Uber for anti-competitive conduct established a timetable for a certification motion.

The court noted a parallel class action (Heller Action) by drivers against the same defendants, where drivers sought employee status, contrasting with the current action's pleading of drivers as self-employed.

The defendants are considering a motion to stay proceedings pending the resolution of the Heller Action regarding driver status.

Despite this, a timetable for the certification motion was set, with flexibility for future revisions.

Following two motions regarding refusals at examinations for discovery, the successful plaintiff sought costs of $12,500 on an elevated scale based on an offer to settle and the defendant's conduct.

The court found that the plaintiff did not obtain a result more favourable than the offer to settle, as the specific questions ordered to be answered differed from the offer.

The court also found the defendant's conduct was not reprehensible.

The court awarded the plaintiff partial indemnity costs fixed at $7,000.

The defendants moved under Rule 21.01(3)(a) to dismiss a libel action brought by a unionized teacher, arguing the claim fell within the exclusive arbitral jurisdiction created by the collective agreement and s. 48(1) of the Labour Relations Act, 1995.

Applying the Weber framework, the court held the essential character of the dispute was defamation arising from an email about an extracurricular, unpaid, voluntary school concert, not a dispute about discipline, workplace administration, or the interpretation or application of the collective agreement.

The court distinguished authorities where the impugned communications or conduct were tied to discipline, dismissal, workplace performance, or other employment-related action.

The jurisdiction motion was dismissed.

No costs were awarded to the self-represented responding party because there was no evidence that she had forgone income.

The applicant mother brought a motion to terminate her $2,400 monthly spousal support obligation to the respondent father.

Following the tragic death of their eldest son and the incarceration of their youngest son in the United States, the applicant incurred massive debts to secure the youngest son's release and fund his post-secondary education.

The respondent, who is legally blind and unemployable, opposed the motion.

The court found a material change in circumstances due to the applicant's depleted assets and significant debt load.

Balancing the compensatory nature of the original support order with the applicant's reduced ability to pay and the statutory priority given to child support, the court declined to terminate support but reduced it to $1,100 per month.

The applicant, a former unit owner, brought an application under sections 119 and 135 of the Condominium Act, 1998, alleging oppressive conduct and non-compliance with the condominium declaration by the respondent corporation regarding unit renovations.

The applicant had sold her unit prior to commencing the application.

The court dismissed the application, primarily finding that the applicant lacked standing as she was no longer an "owner" as defined by the Condominium Act at the time the application was brought.

The court also found no oppressive conduct or unfair disregard of the applicant's interests, and that the alleged non-compliance with the declaration regarding architect/engineer certificates for decorative renovations did not amount to a breach of contract or warrant a remedy.

The plaintiff obtained a judgment against the defendant debtor and subsequently brought an action alleging the debtor fraudulently conveyed properties to the other defendants.

The debtor later declared bankruptcy and was discharged.

The plaintiff brought a motion for summary judgment seeking damages against the transferees.

The court dismissed the motion, finding that the plaintiff failed to follow the correct procedure under the Bankruptcy and Insolvency Act, as the claim belonged to the bankruptcy estate and the plaintiff should have pursued remedies in bankruptcy court rather than seeking damages in civil court.