SCJ 2017

Following a 13-year marriage, the self-represented parties proceeded to trial on financial issues including child support, spousal support, equalization, and the sale of the jointly-owned matrimonial home.

The court imputed income to the applicant husband, finding he intentionally reduced his income to pursue a franchise opportunity.

The court ordered the partition and sale of the matrimonial home, rejecting the respondents' arguments that the applicant's departure from the home barred his right to realize his equity, but delayed the sale to allow the child to finish the school year.

The applicant was ordered to pay his one-third share of the home's carrying costs pursuant to a co-tenancy agreement, while his claim for occupation rent was dismissed.

The court also awarded the respondent wife non-compensatory spousal support for a limited duration to assist her in retraining.

The accused, charged with kidnapping and related offences, brought a pre-trial Charter application to exclude evidence obtained from his seized cell phone.

The police conducted an initial cursory search of the phone upon his arrest to locate the kidnapped victim, followed by a comprehensive warrantless search of the downloaded data 12 days later.

The court held that the initial search was justified by exigent circumstances and did not violate s. 8 of the Charter.

However, the subsequent comprehensive search violated s. 8 because exigent circumstances no longer existed and it was not a valid search incident to arrest.

Applying the Grant framework, the court excluded the evidence under s. 24(2) of the Charter, finding that the police acted with reckless disregard for the accused's privacy rights and abused the search warrant process by seeking a second warrant on the eve of trial.

In a historical child sexual abuse prosecution involving two complainants from the same family, the court assessed reliability concerns arising from delayed disclosure, childhood memory, inconsistencies, and an alleged family falling-out said to support collusion.

Applying the W. (D.) framework and principles governing children's evidence, the court rejected the accused's evidence and found that one complainant's detailed account bore sufficient indicia of reliability despite inconsistencies attributable to age and the passage of time.

The court found reasonable doubt on the counts relating to the second complainant, including on intent and whether the brief over-clothing contact was sexual in nature.

Convictions were entered on two counts and acquittals on two counts.

The plaintiff obtained default judgment against its insurer for a fire loss claim after the insurer failed to deliver a statement of defence.

The insurer brought a motion to set aside the default judgment and stay a notice of garnishment.

The court found that while the insurer did not provide a plausible explanation for its entire period of delay, it demonstrated an arguable defence on the merits regarding the actual cash value of the building and overpayment of lost rent.

Balancing the prejudice to the parties, the court set aside the default judgment and stayed the garnishment, ordering the insurer to pay substantial indemnity costs thrown away.

The plaintiff brought a motion to exclude the defendants from her examination for discovery, alleging she would be intimidated by their presence due to a history of domestic abuse by her former spouse, one of the defendants.

The court found the plaintiff's uncontradicted evidence of assault supported her claim of intimidation regarding her former spouse and his brother, who lived in the same residence during the abuse.

The motion was granted in part, excluding the former spouse and his brother, but dismissing the request to exclude a third defendant due to a lack of specific evidence.

Following the dismissal of the moving party's motion, the responding party sought costs on a substantial indemnity basis, relying on a Rule 49 offer to settle and allegations of improper conduct.

The court found that the offer to settle did not strictly comply with Rule 49.10(1) because it included undeterminable costs, and the moving party's conduct was not reprehensible, scandalous, or outrageous.

Applying the principles of fair and reasonable costs, the court reduced the responding party's claimed hours for preparation and awarded costs on a partial indemnity basis fixed at $27,000.

The defendants, including the former and current Commissioners of the OPP and Her Majesty the Queen, brought motions to strike portions of the plaintiffs' statement of claim alleging negligent supervision and training following an alleged assault by police officers.

The court found that the claim against the current Commissioner disclosed a reasonable cause of action but failed to plead sufficient material facts, striking it with leave to amend.

The motion to strike the claim against the former Commissioner was dismissed, as the court found the plaintiffs had sufficiently pleaded material facts regarding his knowledge of the officers' alleged incompetence and lack of training.

The accused were charged with possession of narcotics for the purpose of trafficking, possession of proceeds of crime, and money laundering following the execution of search warrants at two condominiums.

The Crown relied on circumstantial evidence to prove constructive possession of large quantities of cocaine, marijuana, oxycodone, and psilocybin, as well as significant amounts of cash.

The court found that the circumstantial evidence, including keys, documents, and debt lists, overwhelmingly established that both accused were in possession of the narcotics and that the cash was derived from trafficking.

Both accused were found guilty on all counts.

The defendants brought a motion to transfer the action from Hamilton to Walkerton, arguing that a fair trial could not be held in Hamilton due to the prominent philanthropic profile of the plaintiff's principal.

The court rejected this argument, finding no reasonable apprehension of bias among the Hamilton judiciary.

The court deferred deciding whether a transfer was desirable in the interests of justice under Rule 13.1.02(2)(b) until a pending motion to set aside a default judgment in the action is resolved.

The defendant employer brought a motion for summary judgment to dismiss the plaintiff's wrongful dismissal claim, arguing the termination clause in the employment contract was enforceable.

The plaintiff argued the clause violated the Employment Standards Act, failed to rebut the common law presumption of reasonable notice, and was breached by the employer.

The court found the termination clause was ambiguous regarding whether the exclusion of common law notice applied to the failsafe provision.

Resolving the ambiguity in favour of the employee, the court dismissed the motion and ordered the issues of reasonable notice and damages to proceed to trial.

The accused, charged in a shooting death, sought to introduce expert psychiatric evidence regarding the 'fight or flight' reaction to explain his perception and memory of the events.

The court dismissed the application, finding that the proposed evidence did not meet the necessity test for expert evidence.

The court held that the biological mechanics of a fight or flight response and its effects on perception are within the ordinary experience and common sense of a jury.

Furthermore, the probative value of the evidence was outweighed by the risk of usurping the jury's role and oath-helping.

The plaintiff brought a motion to restore two motor vehicle accident actions to the trial list after they were dismissed by the trial judge for failure to comply with trial management orders.

The Court of Appeal had referred the matters back for reconsideration on a more fulsome record.

The Superior Court dismissed the motion and both actions, finding that the plaintiff remained in intentional breach of previous trial management orders, failed to provide new medical evidence, offered no acceptable explanation for the extraordinary delay (over 15 years for the first action), and failed to demonstrate that the defendants would not suffer non-compensable prejudice.

The applicant mother and respondent father separated after an eight-year marriage.

Following a four-day trial where the mother was granted sole custody, the court determined the remaining financial and access issues.

The court imputed income to both parties, ordering the father to pay ongoing child support and spousal support for eight years to allow the mother to achieve self-sufficiency.

The court denied the mother's claim for retroactive spousal support and occupation rent, noting the father maintained the matrimonial home until its sale without contribution.

The mother retained medical decision-making authority, and a detailed access schedule was established.

The accused was charged with possession of cocaine for the purpose of trafficking after police executed a search warrant at his residence and conducted a warrantless search of his vehicle, finding cocaine in both locations.

The accused challenged the searches under s. 8 of the Charter.

The court upheld both searches, finding the warrant was supported by sufficient corroborated information from a confidential informant, and the vehicle search was validly incidental to arrest.

However, at trial, the accused raised an alternate suspect defence, pointing to his brother who lived with him and had access to the vehicle and residence.

The court found the brother lacked credibility but concluded the evidence raised a reasonable doubt as to whether the accused or his brother possessed the cocaine.

The accused was acquitted.

The defendants brought a preliminary motion to remove the plaintiff's counsel for an alleged conflict of interest and to amend their Statement of Defence to plead the Limitations Act.

The court allowed the amendment to the pleadings, finding no non-compensable prejudice to the plaintiff at this early stage.

However, the court dismissed the request to remove counsel, finding no evidence that counsel acquired confidential information relevant to the current litigation during a prior, unrelated retainer.

The defendants submitted a written request under Rule 2.1 of the Rules of Civil Procedure to have the plaintiff's action dismissed as frivolous, vexatious, and an abuse of process.

The plaintiff alleged that the defendants and their counsel conspired to defraud him during a previous trial.

The court found that while the defendants' limitation period and abuse of process defences might have merit, the claim could not be determined to be frivolous or vexatious simply on the face of the pleadings.

The request to dismiss the action under Rule 2.1 was denied.

The offender pleaded guilty to second-degree murder for the domestic homicide of his wife.

The court considered the mandatory life sentence and had to determine the period of parole ineligibility under section 745.4 of the Criminal Code.

Accepting a joint submission from the Crown and defence, the court set the parole ineligibility period at 12 years, noting the brutal nature of the attack, the profound impact on the victim's family, and the offender's lack of a prior criminal record and early guilty plea.

The accused pleaded guilty to home invasion robbery involving a firearm.

The court accepted a joint submission from counsel, sentencing the accused as a first offender to 6 years in the penitentiary.

After applying credit for pre-trial custody, the remaining sentence to be served was 3.5 years.

Mandatory weapons prohibitions and DNA orders were also imposed.

The plaintiffs brought a motion for summary judgment seeking the proceeds of a property sale, relying on a separation agreement between the deceased and the defendant.

The defendant argued the agreement was signed under duress.

The court dismissed the plaintiffs' motion for summary judgment because the notice of motion failed to comply with Rule 37.06 by not specifying the rules relied upon, and lacked a proper evidentiary record for either a Rule 20 or Rule 21 motion.

The court also struck the defendant's counterclaim with leave to amend to properly plead the request to set aside the separation agreement.

The applicant sought to recognize and enforce a foreign arbitral award issued by the Arbitration Institute of the Stockholm Chambers of Commerce against the respondent.

The respondent opposed enforcement, arguing the arbitrator lacked jurisdiction.

The court found that the respondent failed to establish any of the enumerated grounds under the Model Law to refuse enforcement, noting the powerful presumption that the arbitral tribunal acted within its jurisdiction.

The application was granted and the award was recognized and enforced.