SCJ 2017

The plaintiff brought a motion to set aside a Registrar's Order dismissing her motor vehicle accident action for delay.

The action was dismissed in January 2014 after the plaintiff failed to set it down for trial by the deadline.

Applying the Reid factors, the court found the plaintiff failed to adequately explain the delay, failed to prove inadvertence, did not move promptly to set aside the dismissal, and failed to rebut the presumption of prejudice to the defendants given the passage of nearly ten years since the accident.

The motion was dismissed.

The defendants brought a motion to transfer the action from Hamilton to Toronto under Rule 13.1.02 of the Rules of Civil Procedure.

The action had already been ordered to be tried together with a companion action in Hamilton, and the motion was brought on the eve of trial.

The defendants argued they could not arrange for their expert to testify remotely in Hamilton.

The court found insufficient evidence to support this claim and concluded the defendants failed to establish that Toronto was a significantly better venue.

The motion was dismissed to avoid unfairly delaying the trial.

The deceased had a group life insurance policy with Sun Life.

She executed a change of beneficiary form designating her two daughters as irrevocable beneficiaries, but due to her disability, the policy remained with Sun Life instead of transferring to a new provider.

Her will also contained an ambiguous insurance declaration.

Sun Life paid the insurance proceeds into court.

The daughters brought a motion for a declaration that they were solely entitled to the proceeds.

The court found the will's insurance provision ambiguous but declared the change of beneficiary designation valid under the Insurance Act.

The court ordered the proceeds paid out to the daughters.

Following the dismissal of the plaintiff's solicitor negligence action on summary judgment, the successful defendant sought costs of approximately $47,000.

The defendant argued that costs should be based on the actual $350 hourly rate paid by LawPRO, suggesting this was equivalent to a partial indemnity rate for senior counsel.

The court rejected this approach, noting that awarding actual costs would improperly eliminate the distinction between partial and substantial indemnity scales.

Costs were fixed at $35,000 on a partial indemnity basis.

The applicant, facing extradition to the U.S. on multi-million dollar fraud and conspiracy charges, sought a review of a previous decision denying him interim release.

The court found a material change in circumstances based on a significantly increased financial pledge from five sureties, pre-paid rent demonstrating community ties, and the proposed use of an ankle monitor.

Concluding that the flight risk was sufficiently mitigated, the court granted interim release on strict conditions, including house arrest and electronic monitoring.

The applicant brought a motion for interim spousal support, the immediate sale of the matrimonial home, interim disbursements for expert fees, and financial disclosure.

The parties were married for 40 years but maintained separate finances, with the respondent acquiring significant wealth through inheritance late in the marriage.

The court dismissed the claims for interim spousal support, finding no prima facie case for entitlement given the lack of financial dependency.

The court also dismissed the request for the immediate sale of the home and interim disbursements, but granted a limited order for financial disclosure.

The plaintiff brought an action alleging he was wrongfully ejected from a concert at the request of the moving defendant due to racial discrimination, and subsequently assaulted by security staff.

The moving defendant brought a motion to dismiss the action against him, arguing the court lacked jurisdiction as the claim was based solely on an infringement of the Human Rights Code.

The court granted the motion, finding that there is no independent tort of discrimination and the Human Rights Tribunal has exclusive jurisdiction over such claims.

The applicant father brought an urgent motion after the respondent mother unilaterally moved with their child to Plantagenet and changed the child's school without his consent.

The mother argued the move was within the 25-kilometer geographical restriction in their joint custody order and thus not a material change in circumstances.

The court rejected the mother's argument, finding that the move and school change constituted a major decision requiring joint consent under the order.

The court ordered the child to be returned to the original school's catchment area and registered there for the upcoming school year.

The parties separated shortly after the birth of their child, and the father assumed primary care.

After a lengthy history of litigation and access disputes, the mother sought joint custody, expanded access, and spousal support.

The court awarded sole custody to the father, finding he provided a stable environment, but ordered meaningful consultation with the mother on major decisions.

The mother was granted expanded access, including overnight visits.

While the court found the mother had a non-compensatory entitlement to spousal support, it declined to order support due to her 11-year delay in pursuing the claim, the father's limited income, and his assumption of child-related costs.

The applicant father brought a motion regarding child support, and the respondent mother raised claims for RESP contributions, Section 7 expenses, and Child Tax Benefit payments.

The court found that the father had overpaid child support by $6,432.

The court dismissed the mother's claim for RESP reimbursement but found the father owed her $511 for his share of Section 7 expenses and $3,496 for Child Tax Benefit payments he received.

Setting off the amounts, the court ordered the mother to pay the father the net amount of $2,425 in monthly installments, plus $750 in costs.

The moving parties (the Donato Parties) sought an order enforcing an arbitrator's confidentiality decision and sealing the arbitral award so it would not form part of the public record in the appeal proceedings.

The court applied the Sierra Club test for confidentiality orders and found that the moving parties failed to establish a serious risk to an important commercial interest that required protection.

The court held that the general public interest in encouraging private arbitration does not automatically justify a sealing order when an arbitral award is appealed to the court.

The motion was dismissed.

The applicant appealed an arbitrator's decision granting a confidentiality order and permanent injunction against the applicant and its counsel for publishing a press release linking to an arbitral award.

The court determined the standard of review was reasonableness.

The court found the arbitrator did not err in interpreting the arbitration agreement's confidentiality provisions, in excluding certain extrinsic evidence, in finding a breach of confidentiality, or in granting a permanent injunction.

The appeal was dismissed.

Following the dismissal of the plaintiff's motion for summary judgment regarding unpaid incentive compensation, the successful defendants sought costs of $140,005 on a partial indemnity basis.

The plaintiff argued that no costs should be awarded due to the defendants' conduct causing delay, or alternatively, that the costs were excessive.

The court found that while there was some merit to the plaintiff's complaints about delay, it did not justify denying costs entirely.

The court fixed the costs at $60,000 all-inclusive, noting that the defendants' unaccepted offers to settle were relevant under Rule 57.01(1) despite not triggering Rule 49.10(2).

The parties disputed the school choice and interim parenting schedule for their 12-year-old son.

The applicant mother sought to maintain the status quo parenting schedule and enroll the child in a high school near her home.

The respondent father sought an equal parenting schedule and to enroll the child in a high school near his home.

The Office of the Children's Lawyer advocated for the child's stated preference for equal time and the father's school choice.

The court found the father had inappropriately influenced the child's views and that the mother had been the primary parent.

The court ordered the child to attend the mother's choice of school and maintained the status quo parenting schedule, finding it in the child's best interests.

In an addendum to a previous summary judgment decision, the plaintiff sought clarification on whether its professional negligence claim against the defendant lawyer and law firm was dismissed, and whether it was entitled to a $60,000 purchase price.

The court confirmed that the professional negligence claim was dismissed because it was pleaded as equivalent to the failed breach of fiduciary duty claim.

The court also held that the plaintiff was not entitled to the purchase price because the underlying contract had been abandoned and repudiated by both parties.

The accused, charged with offences related to OHIP billing fraud and medical marijuana, brought a motion to adjourn their trial scheduled for September 11, 2017.

The motion was based on the Crown's late notice, provided on August 8, 2017, of its intention to call a new expert witness without providing a report or a specific description of the proposed expertise.

The court found that the Crown failed to comply with the expert witness notice requirements under s. 657.3 of the Criminal Code.

To protect the accused's right to make full answer and defence, the court granted the adjournment.

In a high-net-worth family law dispute, both parties brought motions.

The respondent wife sought interim support, interim disbursements, further financial disclosure, and an order striking the applicant husband's pleadings for non-compliance with a prior order.

The husband sought to vary the prior order.

The court found the husband's financial evidence evasive and imputed income based on his historical lifestyle funded by alleged loans from his father.

The court ordered the husband to pay $50,000 per month in uncharacterized interim support and to provide the requested corporate disclosure.

The court declined to strike the husband's pleadings immediately but imposed a strict deadline for compliance, and dismissed the wife's request for interim disbursements without prejudice.

Following a trial and an initial costs decision, the party seeking costs sought additional costs for preparing her costs submissions, relying on an offer to settle costs that the opposing party did not accept.

The court found that the offer to settle costs was reasonable and fell within the scope of the Family Law Rules.

The court awarded the party seeking costs additional costs of $3,500 plus HST to bring her recovery for the costs submissions closer to full recovery.

The parties brought cross-motions to change interim custody and access orders regarding their four-year-old child.

The respondent mother sought to relocate with the child to North Bay or New Liskeard for employment and enroll him in junior kindergarten, while the applicant father sought to have the child reside primarily with him in Sudbury.

Applying the Gordon v. Goertz framework, the court found that the mother's employment opportunities and the child's need to start school constituted a material change in circumstances.

The court held it was in the child's best interests to remain in the primary care of the mother and relocate to North Bay, where she had family support and employment.

The father was granted significant access and a reduction in child support to offset travel costs.

The defendant brought a motion to compel the plaintiff to produce its lawyer's transaction file, arguing the plaintiff waived solicitor-client privilege by filing an affidavit from its transaction counsel on an upcoming summary judgment motion.

The court reviewed the principles of deemed waiver and found that the lawyer's affidavit contained numerous substantive statements regarding legal advice, the plaintiff's state of mind, and selective disclosure of privileged communications.

The court concluded that fairness and consistency required the production of the balance of the transaction file, excluding retainer agreements, dockets, and accounts.