SCJ 2017

The plaintiff sued his disability insurer for long-term disability benefits.

The insurer brought a motion for summary judgment to dismiss the action, arguing that a $314,843 settlement the plaintiff received from his former employer upon termination was fully deductible from his LTD benefits under the policy.

The court dismissed the motion, finding that the nature and component parts of the settlement package were unclear from the documentary record.

The court concluded there was a genuine issue requiring a trial to determine whether the settlement funds constituted income replacement or disability payments subject to deduction.

This decision addresses the costs for a three-day trial where the plaintiffs were largely successful.

The court considered the plaintiffs' Rule 49 offer to settle, which they argued triggered substantial indemnity costs, and the defendants' arguments against it, including the implied withdrawal of the offer by subsequent settlement discussions.

The court found that the plaintiffs' Rule 49 offer was not implicitly withdrawn by subsequent non-Rule 49 offers, distinguishing prior case law.

The court also assessed the reasonableness of the plaintiffs' claimed costs under Rule 57.01, reducing them due to excessive lawyer time, duplication of effort, and disallowing a specific disbursement for a legal opinion deemed unnecessary.

Ultimately, the defendants were ordered to pay the plaintiffs $147,966.49 in costs.

The Children's Aid Society brought a protection application seeking Crown wardship of a five-year-old child with severe behavioural and special needs.

The mother did not participate in the trial.

The father, who had an extensive criminal record and had been absent for most of the child's life, sought placement of the child in his care under a supervision order.

The court found the child in need of protection due to the mother's inability to manage the child's extreme aggressive behaviours.

The court rejected the father's plan, finding he lacked insight into the child's complex needs and had failed to complete recommended programs in a timely manner.

The child was made a Crown ward with supervised access granted to the father.

The self-represented applicant, charged with unauthorized provision of immigration advice under the Immigration and Refugee Protection Act (IRPA), brought pre-trial motions challenging the jurisdiction of the Canada Border Services Agency (CBSA) to prosecute her and the constitutional validity of several IRPA provisions.

The court found that the CBSA had statutory authority to investigate and prosecute the offences pursuant to s. 138(1) of the IRPA and a valid delegation of power.

The court also dismissed the division of powers argument, holding that s. 91(1) of the IRPA is a valid exercise of federal jurisdiction over immigration and criminal law, and does not improperly intrude on provincial regulation of legal professionals.

The applicant's section 7 Charter challenges based on vagueness were dismissed, with specific interpretive issues deferred to trial.

The receiver, Ernst & Young Inc., moved for approval of its activities and its fees and disbursements in the receivership of Hanfeng Evergreen Inc. The former CEO and his spouse opposed the motion, seeking conditions to protect their position in separate litigation and demanding further document disclosure to assess the fees.

The court approved the receiver's activities, noting that such general approval does not constitute fact-finding that would bind the objectors in other litigation.

The court also approved the fees and disbursements, finding them fair and reasonable under the Belyea factors, and rejected the objectors' demands for further docket disclosure as disproportionate and misdirected.

The applicant moved to enforce a term of a separation agreement allowing her to discharge a mortgage on her home at two-thirds of its face value.

The respondent opposed the motion and sought to set aside the agreement entirely, alleging the applicant had fundamentally breached multiple terms regarding access, child support enforcement, and mediation.

The court dismissed the applicant's motion, finding that significant factual disputes existed regarding the alleged breaches, making it inappropriate to enforce the settlement on a summary motion.

The respondent was ordered to continue paying child support while pursuing his application to set aside the agreement.

The moving party, an employee of the invoice payor, brought a motion for summary judgment to dismiss the fraud action against him.

The plaintiff factoring company was defrauded of millions of dollars through fictitious invoices.

The moving party claimed his identity was stolen by the fraudsters to confirm the fake invoices and that he was also a victim.

The court dismissed the motion, finding that conflicting evidence regarding the moving party's emails, his financial ties to the fraudulent payee, and credibility issues among the co-defendants created genuine issues requiring a trial.

The Monitor in a CCAA proceeding sought to declare void as an unjust preference $12 million in HST payments made by the insolvent debtor to the Canada Revenue Agency shortly before commencing a proposal proceeding.

The court dismissed the motion, finding that the payments were funded by an inter-company loan specifically earmarked for the tax liability, meaning the transaction was economically neutral to the debtor and did not prejudice the recovery of unsecured creditors.

The plaintiffs sued the defendant architectural firm for negligent misrepresentation regarding the construction costs of a stacked townhouse project.

The defendant brought a motion for summary judgment, arguing that the 'entire agreement' exclusion clause in their contract precluded the plaintiffs from suing based on pre-contractual representations.

The court found that the exclusion clause applied to the alleged misrepresentations and that it was not unconscionable to enforce it.

The court granted summary judgment and dismissed the action.

The third party moved to dismiss the plaintiff's construction lien action due to the plaintiff's failure to comply with a prior order requiring it to pay $250,000 into court as security for costs.

The plaintiff, who was impecunious and no longer carrying on business, made no efforts to comply with the order.

The court granted the motion, ordering that the action be automatically dismissed in 30 days unless the plaintiff posts the required security and pays the outstanding costs award.

The applicant sought a dismissal of sexual assault charges under s. 11(b) of the Canadian Charter of Rights and Freedoms due to alleged unreasonable delay.

The court calculated the total delay from the laying of the information to the projected trial completion, deducting periods attributable to the defense, including delays in retaining counsel, medical issues of counsel, and counsel's unavailability for trial dates.

The court found the net delay to be 29.75 months, which is below the 30-month presumptive ceiling for Superior Court cases.

The applicant failed to demonstrate that the delay was unreasonable, and the application for dismissal was denied.

The applicant property owner sought a declaration that a 'right of first refusal to purchase' granted to the respondent upon the sale of the property was void due to frustration.

The applicant argued that the withdrawal of an adjacent landowner from a planned land assembly rendered the development project impossible.

The court determined that the right was an option to purchase creating an interest in land, not a mere right of first refusal.

The court dismissed the application, finding that the withdrawal of the adjacent landowner was a foreseen event provided for in the parties' agreements and did not render the provision of the commercial space impossible.

The court also held that the right did not violate the rule against perpetuities.

The applicant, a 73-year-old man charged with second-degree murder of his son, sought release on bail under s. 520 of the Criminal Code.

He had previously been granted bail but voluntarily returned to custody, causing his surety to revoke.

The Crown opposed bail on the secondary and tertiary grounds.

The court found no material change in the sureties' ability to supervise the applicant and noted his compliance with previous bail conditions.

Applying the principles from St. Cloud and Antic, the court granted bail on the original terms with additional conditions regarding alcohol prohibition and surety visits.

The moving party solicitor sought to set aside an assessment order and dismiss the responding party client's claims regarding disputed legal accounts, alleging delay and non-compliance with previous interlocutory orders.

The court found that the client had substantially complied with the orders, noting that the solicitor's own delay in producing detailed dockets contributed to the timeline.

The court dismissed the motion to set aside the assessment order or compel discovery, and instead issued directions to govern the upcoming assessment hearing.

The accused was charged with possession of cocaine, crack cocaine, and marijuana for the purpose of trafficking, as well as possession of proceeds of crime, following the execution of a search warrant at a residence.

The accused was found in the kitchen, but no contraband was found on his person.

The Crown relied on circumstantial evidence, including an expired license plate renewal form, to establish constructive possession.

The court found the evidence insufficient to prove beyond a reasonable doubt that the accused resided at the home or had knowledge and control of the drugs and currency.

The accused was acquitted on all counts.

The Public Guardian and Trustee, acting as litigation guardian for an incapable beneficiary, brought an application to compel the estate trustee to pass the estate accounts.

The beneficiary had signed a release and received her share of the estate, but was assessed as incapable less than three months later.

The court applied section 2(4) of the Substitute Decisions Act, 1992, finding that the estate trustee failed to prove she did not have reasonable grounds to believe the beneficiary was incapable when the release was signed.

The application was granted and the estate trustee was ordered to pass the accounts.

The parties separated after a 20-year common law relationship.

The applicant sought a share of the proceeds from the sale of the family home, which was registered solely in the respondent's name, claiming unjust enrichment due to her significant renovations and repairs.

The court found the applicant contributed equally to the property's value and awarded her half the net value.

The court also imputed income to the respondent due to intentional underemployment, calculating retroactive child support and spousal support.

The child support arrears were deemed satisfied by the respondent's payment of the home's carrying costs, and ongoing spousal support was ordered at $1,000 per month.

The accused applied for a stay of proceedings under s. 11(b) of the Charter, arguing unreasonable delay.

The total delay from the date of the charge to the anticipated end of the trial was over 40 months.

The court deducted various periods of defence delay, including time for counsel's vacation, adjournments for subsequent charges, and a breakdown in the solicitor-client relationship.

The court also deducted time as exceptional circumstances due to the tragic passing of the accused's initial counsel and the resulting second intake period.

After deductions, the net delay fell below the 30-month presumptive ceiling.

The court also noted that the transitional exception would apply.

The application was dismissed.

The Children's Aid Society brought a motion for summary judgment seeking an order for Crown wardship without access for two children.

The mother opposed the motion but failed to file responding materials and sought an adjournment, which was denied.

The court found no genuine issue for trial, noting the mother's long-standing, unaddressed substance abuse and mental health issues, and her failure to engage with services.

Relying on expert assessments indicating the children required stability and specialized care, the court granted the motion, making the children Crown wards without access for the purpose of adoption.

The five accused, charged with fraud and conspiracy related to a multi-million dollar tax avoidance scheme, brought applications for a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter.

The total delay was approximately 44 months.

The court dismissed the delay application, finding the delay justified by the exceptional complexity of the case, which involved voluminous disclosure and multiple accused, as well as transitional exceptional circumstances under the Jordan framework.

The court granted an adjournment for three accused to retain counsel but denied a severance application by the remaining two accused, emphasizing the strong presumption in favour of joint trials for alleged co-conspirators.