SCJ 2017

During a jury trial, the plaintiff brought a motion under Rule 52.10 of the Rules of Civil Procedure to allow the jury to determine if past and future care costs were warranted, despite having called no evidence on these issues.

The plaintiff proposed that if the jury found such costs warranted, the quantum could be determined later by a judge.

The court dismissed the motion, finding that the plaintiff failed to exercise reasonable diligence in obtaining the necessary expert evidence before trial.

The court also held that bifurcating the issue would improperly remove the determination of the extent and quantum of future care costs from the jury.

The applicant sought costs personally against her former counsel under Rule 57.07 for appearing against her in a related matter.

The court found that the law firm breached its duty of loyalty by acting for the respondent estate trustee against the applicant, its former client, necessitating an adjournment.

The court applied the two-part test for costs against counsel and ordered the law firm to pay the applicant's costs thrown away by the adjournment on a full indemnity basis.

The costs were fixed at $1,356 and set off against a prior costs award owed by the applicant to the law firm.

The self-represented applicant, charged with unauthorized immigration consulting and counselling misrepresentation under the Immigration and Refugee Protection Act, brought pre-trial Charter applications challenging her arrests, the search of her office, and the Crown's disclosure.

The court found that the CBSA officers had reasonable and probable grounds for both the initial arrest warrant and a subsequent warrantless arrest for breaching bail conditions.

The court also upheld the validity of the search warrant and found no breach of the Crown's disclosure obligations, noting that communications between Crown counsel and investigators are privileged.

All Charter applications were dismissed.

The applicant sought a declaration of a prescriptive easement over a passageway on the respondent's adjoining property and damages for the pruning of an overhanging tree limb.

The court found that the historical use of the passageway by the applicant's predecessors was permissive and neighbourly, not 'as of right', and thus no prescriptive easement was established.

The court also dismissed the claim for damages, holding that the respondent was legally entitled at common law to prune the overhanging branches of the applicant's tree that intruded onto her property.

The applicant moved to strike portions of an affidavit filed by the respondent Attorney General.

The underlying application involves a Charter challenge to the application of FIPPA to certain quasi-judicial tribunals.

The parties had previously agreed to limit the scope of the application to 16 specific tribunals.

The impugned affidavit evidence detailed the procedures of the Social Benefits Tribunal, which was not one of the 16 listed tribunals.

The court granted the motion, finding that the evidence improperly expanded the scope of the application contrary to a prior case management endorsement.

The deceased left his entire estate to his second wife and named his brother as executor, with his estranged daughter as the alternate.

After the brother renounced, the daughter retained a law firm to administer the estate despite opposition from the widow, who was the sole beneficiary.

The widow successfully applied to pass over the daughter as executor.

The daughter's law firm then brought a charging motion against the estate for their legal fees, as the daughter refused to pay them.

The court dismissed the motion, finding that the daughter had no legitimate motive to administer the estate and the legal steps taken were unreasonable.

The law firm was directed to seek payment directly from the daughter.

The applicants, Brian Nelson and Andrew Ramdass, brought certiorari applications to quash a preliminary inquiry judge's decision committing them to stand trial for manslaughter.

The charges arose from a physical altercation between two groups that resulted in a death.

The court dismissed Nelson's application, finding there was direct evidence from a witness that he punched the victim, which was sufficient for committal.

However, the court granted Ramdass' application and quashed his committal, concluding there was no admissible evidence from which a properly instructed jury could infer he intentionally applied force to the victim.

The moving party (former husband) brought a motion to change seeking to terminate child support and gain sole custody.

The responding party (former wife) sought increased child and spousal support, and an extension of spousal support beyond the previously ordered termination date.

The court dismissed the request to extend spousal support, finding no material change in circumstances and that the responding party was capable of working.

However, the court found the moving party's claimed business expenses were unreasonable and imputed his income at 50% of his gross professional income, ordering retroactive and ongoing increases to child and spousal support.

The plaintiff brought a motion for default judgment against the defendants for breach of a commercial lease and an associated indemnity agreement.

The defendants stopped paying rent, leading the plaintiff to terminate the lease and re-enter the premises.

Despite being served and given extensions to retain counsel, the defendants did not defend the action or respond to the motion.

The court found the plaintiff established liability and damages, granting default judgment for rent arrears, lost future rent, and costs on a substantial indemnity scale.

The applicant Society brought a motion for summary judgment seeking an order that the 15-month-old child be made a Crown ward without access.

The mother was noted in default, and the father opposed the motion, seeking the child's return under supervision.

The court found no genuine issue for trial, noting the parents' ongoing substance abuse issues, lack of stable housing, and failure to engage in services.

The court concluded that Crown wardship without access was in the child's best interests and granted the summary judgment.

The applicant was successful on the application and sought costs of $20,000 plus HST.

The respondent argued for reduced costs of $15,000 due to divided success, claiming the applicant abandoned some relief at the hearing.

The court found no evidence that the respondent incurred additional costs due to the abandoned relief.

The court awarded the applicant costs on a partial indemnity basis in the amount of $17,157.72, all inclusive.

The defendants appealed a Master's order granting the plaintiffs leave to amend their Statement of Claim to seek damages for breach of a settlement agreement.

The defendants argued the new causes of action were barred by the two-year limitation period under the Limitations Act, 2002.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the Master's decision.

The court held that, at the pleadings stage, the plaintiffs' reliance on the defendants' ameliorative efforts to cure the breach may have rendered legal proceedings inappropriate, thereby postponing the commencement of the limitation period.

The applicant tenant brought an urgent application under the Commercial Tenancies Act regarding a dispute over additional rent and a threatened eviction.

The court found the cited sections inapplicable but utilized the Courts of Justice Act and Rules of Civil Procedure to avoid technical irregularities.

The court ordered the tenant to pay base rent plus an estimated amount for additional rent and arrears to avoid eviction, directed the landlord to provide an architect's certificate and actual figures, and converted the matter to a Rule 14 application.

The defendants brought a motion to vary a Mareva injunction to permit payments for legal fees and living expenses out of frozen funds.

The plaintiffs opposed the motion, arguing the defendants failed to demonstrate they lacked access to other assets.

The court dismissed the motion, finding the moving parties failed to discharge their onus because they did not provide evidence explaining why related corporate defendants (Incryptex and ApexDX) could not fund the litigation, nor did they provide sufficient details of their living expenses or account for other funds.

The moving party sought to terminate his spousal support and life insurance obligations, arguing that his voluntary retirement at age 56 constituted a material change in circumstances.

The parties had previously executed a separation agreement providing for spousal support for a fixed ten-year period.

The court found that the retirement was voluntary, the moving party retained the capacity to earn income, and the parties had intended for support to continue for the full ten-year term to allow the recipient to plan her financial affairs.

The court concluded there was no material change in circumstances and dismissed the motion.

The plaintiffs were involved in a motor vehicle accident caused by a pothole.

They initially sued the City of Toronto and 'John Doe Maintenance Company'.

After the limitation period expired, the plaintiffs successfully moved before a Master to substitute the Region of York and Brennan Paving as defendants, relying on the doctrine of misnomer.

The defendants appealed.

The Superior Court of Justice granted the appeal, finding that the Master erred in law by extending the doctrine of misnomer too far.

The court held that the 'litigating finger' did not clearly point to the proposed defendants, as the Statement of Claim identified the accident location in a different municipality, and it was unreasonable to expect the proposed defendants to connect the claim to a notice letter sent nearly two years earlier.

Following the dismissal of the plaintiffs' solicitor negligence action for delay, the defendant Whyte was awarded costs on a partial indemnity basis.

The plaintiffs appealed the initial assessment officer's certificate, and the parties consented to have the court assess the costs de novo.

Applying the factors under Rule 58.06(1), the court reduced the time claimed for discoveries and trial preparation, ultimately assessing the costs at $23,438.50 and ordering the defendant to return the excess amount previously paid by the plaintiffs.

The plaintiff in a wrongful dismissal action brought a motion to remove the defendant corporation's counsel of record, who was also the sole officer and director of the corporation and a key participant in the employment negotiations at issue.

The defendant brought a cross-motion to strike the plaintiff's exhibits based on settlement privilege and to allow the counsel to act as an agent if removed.

The court dismissed the cross-motion, finding that any privilege had been waived.

The court granted the motion to remove counsel, holding that while his status as a potential witness alone did not disqualify him, his demonstrated personal attachment to the litigation compromised his impartiality as an advocate.

The court also denied leave for him to act as an agent for the corporation.

The accused, charged with criminal harassment, brought a motion for a directed verdict of acquittal.

The charge arose from an incident where the accused allegedly followed and watched a 13-year-old girl on her way to school, having previously followed her and a friend weeks earlier.

The court amended the indictment to conform to the evidence regarding the date of the offence.

The court dismissed the motion for a directed verdict, finding that there was sufficient evidence of 'watching' under s. 264(2)(c) of the Criminal Code upon which a properly instructed jury could reasonably convict.

During a criminal trial, the Crown applied under s. 714.1 of the Criminal Code to allow a witness to testify via Skype.

The witness was unable to attend court due to a high-risk pregnancy.

The defence objected, arguing the anticipated evidence was vague and bordered on bad character evidence.

The court found the evidence relevant to the issue of opportunity and held that trial fairness would not be undermined by the use of technology.

The application was granted, permitting the witness to testify remotely.