SCJ 2017

The plaintiff, Insight Merchandising LLC, brought an action against the defendant, 2072223 Ontario Limited (CDA), for unpaid commissions related to a Walmart project.

CDA denied owing commissions and counterclaimed for damages, alleging the plaintiff failed to properly manage the project and caused additional costs.

The court found that the commission structure was based on estimated sales price, not actual gross profit margins, and that CDA had no valid unwritten terms permitting it to reduce or withhold commissions.

The court also found no evidence that the plaintiff breached any duty of due diligence or was responsible for the issues with the display units.

The defendant's key witness was found to be inconsistent and lacking credibility.

The plaintiff's claim for unpaid commissions was granted, and the defendant's counterclaim was dismissed.

This endorsement addresses the determination of full indemnity costs following contempt proceedings.

The plaintiff, Sycor, claimed $280,530.83, while the defendants proposed $216,843.46.

The court reiterated that full indemnity costs cover all reasonably incurred fees and disbursements, not extra services.

The defendants challenged the hourly rates of the plaintiff's counsel and discrepancies in billed hours.

The court found the plaintiff's counsel's rates reasonable for Toronto's Commercial List, dismissing the argument that lower defence counsel rates should be determinative.

The court also rejected the use of outdated Civil Rules Committee cost guidelines for full indemnity costs.

A deduction of $22,000 was made for discrepancies in billed hours for the liability phase, but time spent on a preceding judicial settlement conference was deemed reasonably incurred.

Ultimately, the defendants were ordered to pay Sycor costs of $258,530.83 on a joint and several basis.

The plaintiff sought leave to appeal a decision that set aside a default judgment against the defendant.

The original default judgment found the defendant liable for breach of confidence, intentional infliction of mental distress, and invasion of privacy, awarding significant damages and an injunction.

The motion judge (Dow J.) set aside the default judgment, allowing the defendant to defend on the merits, conditional on a costs payment.

The plaintiff argued that the motion judge erred by considering the defendant's proposed defence despite intentional default, failing to distinguish liability from damages, and not adequately considering psychological harm.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision and emphasizing the importance of a trial on the merits for the development of tort law in this unique area.

The applicant, Ernest Below, brought a motion for custody of the parties' two young children after the respondent, Stacy Sheene, moved with them from Florida to Ontario.

Sheene had returned to Florida for medical treatment, leaving the children with Below's parents, and intended to return to Florida with the children due to a breakdown in financial support and relationship with Below.

Below obtained a temporary order preventing their removal from Canada.

The court determined it lacked jurisdiction over the custody and access issues, finding that the children's habitual residence remained Florida.

The court declined to exercise jurisdiction under the Children's Law Reform Act, ordered the termination of the temporary order, and directed the children's return to Florida in Ms. Sheene's care, with Mr. Below responsible for travel expenses.

The applicant sought an order preventing a newly incorporated ratepayers association from using the name of a former, unincorporated association.

The court found that the former association had ceased to exist due to prolonged inactivity and a lack of members in good standing.

The former president, acting as a trustee, validly assigned the association's name and funds to the new corporation to carry out the original association's purposes.

The application was dismissed, and costs were awarded to the respondent.

The plaintiff, Ronald Dawson, brought an unsuccessful summary judgment motion in his wrongful dismissal action.

The court dismissed the motion, finding genuine issues requiring a trial, including evidentiary conflicts and credibility issues.

The defendant, Colt Food Services Limited, sought substantial indemnity costs for the motion.

The court, exercising its discretion, reserved the costs of the summary judgment motion to the trial judge.

This decision was based on the finding that the work done for the motion would facilitate the trial process, and a significant costs award against the plaintiff, who faced financial hardship, would impede his access to justice.

The accused was tried on charges of sexual assault and sexual interference arising from alleged sexual activity with a complainant under 16 years of age.

Applying the W.(D.) credibility framework, the court found no basis to reject the accused's evidence that the sexual activity was consensual, and held the Crown had not proved lack of consent beyond a reasonable doubt, particularly given the complainant's memory gap and the absence of expert evidence on intoxication and capacity.

On the sexual interference count, the court held there was an evidentiary basis for an honest but mistaken belief as to age and that the Crown had not disproved beyond a reasonable doubt that the accused took all reasonable steps to ascertain age in the circumstances.

The accused was acquitted on both counts.

The Crown appealed the respondent's acquittal on a charge of refusing to provide a breath sample.

The trial judge had acquitted the respondent on the basis that the Crown failed to prove he was presented to a breath technician 'as soon as practicable' following the breath demand.

On appeal, the Superior Court held that presenting an accused to a breath technician 'as soon as practicable' is not an essential element of a valid demand under section 254(3) of the Criminal Code for the purposes of a refusal charge.

The appeal was allowed, the acquittal set aside, and a conviction entered.

The plaintiff brought a Rule 21 motion for a judicial determination of a question of law concerning the application and breadth of section 7(1) of the Consumer Protection Act (CPA) in the context of a negligence claim where the plaintiff was injured while skiing at the defendant's ski resort.

The issue engaged the interplay between consumer rights under the CPA and occupier liabilities under the Occupiers Liability Act (OLA).

The court found that the defendant's broad waiver of liability offended CPA requirements by attempting to waive the deemed warranty of "reasonably acceptable quality" under section 9(1) of the CPA.

However, the court rejected the plaintiff's argument that the entire waiver should be voided.

Instead, it applied the doctrine of notional severance to read down the waiver, making it unenforceable only for claims involving substantive and procedural rights under the CPA, while preserving its enforceability for negligence claims under the OLA.

This approach allows the plaintiff to pursue both negligence (subject to the OLA waiver) and breach of warranty (not subject to waiver) claims.

The applicant father brought a motion for contempt against the respondent mother for unilaterally relocating their three children more than 50 kilometres from Hamilton, contrary to a final mediated agreement and court order, and for restricting his access.

The mother brought a cross-motion for custody and transfer of proceedings, asserting she believed the order was withdrawn and alleging an assault by the father.

The court found the mother in contempt, rejected her justifications and assault allegations, and found her actions detrimental to the children's interests.

The court varied the previous order, granting primary residence of the children to the father and ordering an Office of the Children's Lawyer investigation.

The plaintiff's action against police defendants, alleging Charter breaches, negligent investigation, falsified evidence, and assault, was dismissed after a lengthy trial where the plaintiff failed to prove any allegations and was found to be an incredible witness.

The defendants, as the successful parties, sought partial indemnity costs.

The court, applying Rule 57.01 of the Rules of Civil Procedure, considered the seriousness of the plaintiff's unsubstantiated allegations and his conduct in forcing a lengthy trial.

The court awarded the defendants partial indemnity costs in the amount of $367,704.87, finding the request fair and reasonable.

The applicant sought an order under Rule 45.02 of the Ontario Rules of Civil Procedure to compel the respondents to pay escrowed funds into court as security for a claim being pursued in the Court of Queen's Bench of Alberta.

The underlying dispute involved alleged latent defects in a real estate transaction.

The court questioned its jurisdiction to grant interlocutory relief under Rule 45.02 when no underlying proceeding was before the Ontario court.

The court ultimately dismissed the application, finding that Rule 45.02 does not provide a freestanding cause of action for freezing funds in support of an action in another jurisdiction, and even if it did, judicial comity dictated that the Alberta court should be approached first for such relief.

The Children's Aid Society of Ottawa sought summary judgment to place three children (E.S., J.S., R.S.) in the legal custody of their maternal grandparents, with discretionary access for the parents.

The mother opposed, seeking the children's return or a supervision order.

The court dismissed the Society's motion for summary judgment, finding genuine issues for trial.

These issues included the admissibility and apparent contradiction of medical evidence regarding the children's initial physical condition and developmental delays, and a significant change in the mother's bail conditions which allowed her to present a plan of care.

The court emphasized that summary judgment requires a full evidentiary record and should not be granted where material facts are in dispute or credibility is an issue.

Following a successful summary judgment motion by the defendant, Paragon Protection Ltd., the court considered written submissions on costs.

Paragon sought costs on a substantial indemnity basis, but the court awarded costs on a partial indemnity basis, finding no reasonable ground for substantial indemnity.

The plaintiff, Clifton A. Damallie, was ordered to pay $7,500, inclusive of disbursements and taxes, to Paragon Protection Ltd. within 60 days.

Following a successful motion for summary judgment in a wrongful dismissal action where the plaintiff was awarded $20,904, the parties made written submissions on costs.

The plaintiff sought substantial indemnity costs of $67,959 or partial indemnity costs of $57,082.

The court rejected the claim for substantial indemnity costs, finding the defendant's conduct did not warrant them.

The court also declined the defendant's request to deny costs under Rules 57.05 or 76.13, noting that proceeding by summary judgment achieved the same efficiencies as the Simplified Procedure.

Considering proportionality and the plaintiff's limited success, the court awarded the plaintiff total costs of $23,000 on a partial indemnity basis.

The defendant, Kingdom of Saudi Arabia, brought a motion for summary judgment to dismiss a construction lien claim registered by the plaintiff, Construction Excedra Inc., against its property.

The defendant argued that the property was diplomatic premises and thus immune from attachment under the Foreign Missions and International Organizations Act and Article 22 of the Vienna Convention on Diplomatic Relations.

The plaintiff contended that the property was not immune or that state immunity had been waived.

The court found that certificates issued by the Minister of Foreign Affairs were conclusive proof of the property's diplomatic status and immunity from attachment, granting the defendant's motion and ordering the lien discharged.

The appellant, Marti Mayrhofer-Lima, appealed his conviction and sentence for impaired operation of a motor vehicle.

The appeal focused on alleged Charter breaches (sections 7, 10(a), 10(b), 8, and 9) and the trial judge's failure to provide sufficient reasons.

The Crown had conceded breaches of sections 8, 9, and 10(b), but the trial judge rejected these concessions without notifying counsel or allowing submissions on the pivotal case of R. v. Bush.

The appellate court found that the trial judge erred in not accepting the Crown's concession regarding the section 10(b) breach and in failing to provide counsel an opportunity to make submissions on R. v. Bush, which was central to the rejection of the section 9 concession.

These errors were deemed reversible, as they impacted the appellant's strategic decisions at trial.

The conviction was set aside, and a new trial was ordered.

The plaintiff, AAA Entertainment B.V., moved for summary judgment to enforce a foreign judgment from the Amsterdam District Court against the defendant, Cinemavault Releasing International Inc. While partial summary judgment was granted for the principal amount, the defendant contested the enforcement of a court-imposed penalty for delayed compliance, arguing improper service and public policy contravention.

The court found proper service under Dutch law and the Hague Convention and determined that the penalty, being a coercive measure to ensure compliance rather than a penal provision, was not contrary to Ontario public policy and was therefore enforceable.

The defendants moved for summary judgment to dismiss the plaintiffs' action for malicious prosecution, defamation, negligence, and misrepresentation.

The claims arose from the defendant reporting the plaintiffs to the police for alleged corporate fraud, which led to criminal charges that were later withdrawn.

The court granted summary judgment dismissing the misrepresentation claim, finding no reliance by the plaintiffs.

However, the court dismissed the motion regarding the remaining claims, concluding that a fair and just determination could not be made at this stage due to outstanding factual issues and incomplete discovery.

The applicant wife sought to set aside a handwritten separation agreement, divide the respondent husband's pension, and obtain retroactive spousal support.

The respondent failed to file responding materials and was noted in default.

The court set aside the separation agreement due to lack of formal witnessing, lack of financial disclosure, and unconscionability.

The court ordered an immediate transfer of 50% of the respondent's pension and awarded indefinite compensatory spousal support of $3,700 per month, retroactive to the date the respondent was put on notice of the proceedings.