SCJ 2018

La demanderesse, un organisme de bienfaisance enregistré, a contesté l'interprétation et l'application par l'Agence du revenu du Canada (ARC) du paragraphe 149.1(6.2) de la Loi de l'impôt sur le revenu.

L'ARC limitait à 10 % les ressources qu'un organisme pouvait consacrer à des activités politiques non partisanes.

La Cour a conclu que cette restriction portait atteinte à la liberté d'expression garantie par l'alinéa 2b) de la Charte, car elle empêchait la demanderesse de poursuivre ses fins de bienfaisance par la défense d'intérêts publics.

L'atteinte n'était pas justifiée au regard de l'article premier de la Charte.

La Cour a déclaré que les activités politiques non partisanes contribuant aux fins de bienfaisance doivent être considérées comme des activités de bienfaisance sans restriction de pourcentage.

Following the dismissal of the plaintiff's construction lien action and the success of the defendants' counterclaim, the defendants sought full indemnity costs against the plaintiff and its non-party principals.

The court found that the plaintiff's principal engaged in egregious conduct, including fabricating evidence and lying under oath, justifying a full indemnity costs award.

The court ordered costs against the plaintiff and one of its non-party principals jointly and severally, finding his conduct amounted to an abuse of process.

Costs were not awarded against the other non-party principal, as he did not orchestrate the deceit.

In a class action, the Plaintiffs sought pre-discovery production of three million documents from Volkswagen Group Canada, Inc. et al. (VW), a non-party to the main action.

The motion was dismissed, and VW, as the successful party, sought partial indemnity costs of $29,487.29.

The Plaintiffs argued for a costs award of $5,000, contending the motion was straightforward.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, including the importance and complexity of the motion, the reasonable expectations of the unsuccessful litigant, and the conduct of the parties.

While acknowledging the motion's importance to both sides, the court found some evidence of "over-lawyering" by VW.

Applying the discretionary principles for costs awards, the court adjusted the amount and awarded VW $22,000, all inclusive.

The applicant, a grandmother, sought a temporary order for access to her 5-year-old granddaughter.

The parents and other family members opposed the motion, citing concerns about the applicant's disrespect for parental decisions, promotion of religious views, and attempts to facilitate contact with an estranged aunt.

The court, applying the principles from *Chapman v. Chapman*, found that the parents were attentive, capable, and loving, and had not shown an inability to act in the child's best interests.

The court determined that the parents' decision to limit access was not arbitrary or unreasonable, despite the potential impact on the grandmother-granddaughter relationship.

The motion for temporary access was dismissed.

The applicant sought costs following a motion for interim spousal and child support and interim disbursements.

Although the respondent was technically successful on the motion, the court found that the respondent's conduct, including withholding critical information about an income analysis and making an unreasonable offer to settle, tempered the presumption of costs in his favour.

The court awarded costs of $3,000 to the applicant.

The parties separated after a high-conflict marriage.

The applicant sought sole custody, child support, and spousal support, while the respondent sought joint custody and an equalization of net family property.

The court granted sole custody to the applicant, finding that the parties' inability to communicate and the respondent's controlling behaviour made joint custody contrary to the children's best interests.

The court ordered the respondent to pay retroactive child support based on minimum wage, found the applicant entitled to spousal support, and directed a further hearing to determine the respondent's current income as a pharmacist for ongoing support purposes.

The applicants sought to re-open the issue of the validity of a search warrant and rescind a Sending Order issued under the Mutual Legal Assistance in Criminal Matters Act.

This application was based on new evidence from a related British Columbia proceeding where a similar search warrant, based on the same Request to Send from Belgium, was set aside due to deficiencies in the supporting affidavit.

The Ontario court dismissed the application, finding that the affidavit supporting the Ontario search warrant was materially different and did not suffer from the same deficiencies as the British Columbia affidavit.

The court also disagreed with the British Columbia court's ultimate finding regarding the sufficiency of the Request to Send to establish reasonable and probable grounds in the context of an MLAT proceeding, emphasizing the spirit of international cooperation.

The applicant municipality brought an application for a declaration and permanent injunction against the respondents for violating a zoning by-law by keeping multiple recreational trailers on their property for permanent residential seasonal use.

The respondents argued they had a legal non-conforming use under a previous by-law.

The court found that neither the previous nor the current zoning by-laws permitted the use of multiple recreational trailers as a main use on the property.

Finding a clear breach of the by-laws and no exceptional circumstances, the court granted the declaration and permanent injunction requiring the removal of the trailers.

The applicant children's aid society applied for a status review, initially supporting the child's adoption by his foster mother, but later amending its application to support adoption by the child's paternal aunts.

The foster mother, who had cared for the child for 28 months and helped him overcome severe attachment and anxiety issues, was added as a party and sought to adopt him.

The court found that removing the child from the foster mother's care would cause significant emotional harm and that remaining with her was in his best interests.

Finding a legislative gap in the Child and Family Services Act that prevented a custody order in favour of a foster parent on a status review, the court exercised its parens patriae jurisdiction to declare the child a Crown ward with the express purpose of being adopted by the foster mother.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision.

The Divisional Court issued a notice under Rule 2.1.01 of the Rules of Civil Procedure indicating its intention to dismiss the proceeding as frivolous, vexatious, or an abuse of process.

The applicant responded with unreasonable attacks against court staff and sought $40 million in damages.

The court found the application had no merit, as the applicant failed to provide any evidence or jurisprudence to support his claims of discrimination and bias.

The application for judicial review was dismissed as frivolous, vexatious, and an abuse of process.

Following a trial where the plaintiff's construction lien claim was dismissed and the defendants succeeded on their counterclaim, the defendants sought costs.

The court awarded full indemnity costs of $578,793.29 to the defendants due to the egregious and deceitful conduct of the plaintiff's principal, who fabricated documents and lied repeatedly.

The court also ordered the costs to be payable jointly and severally by the plaintiff corporation and its principal personally, finding his conduct amounted to an abuse of process.

The plaintiffs brought a motion to compel the defendant to re-attend an examination for discovery to answer questions regarding a tape recording of a conversation and its translation.

The defendant refused to answer, claiming privilege and arguing the translation was inadmissible.

The Master granted the motion, finding insufficient evidence of privilege to bar all questions and noting that admissibility is a matter for the trial judge.

The defendant was ordered to re-attend and answer the refused questions, with costs awarded to the plaintiffs.

The offender, owner of a payroll company, was convicted of multiple counts of fraud and using forged documents after failing to remit client funds to the government and keeping the excess.

The total loss was $366,056.21.

The court found that general deterrence and denunciation were paramount, given the significant breach of trust and scale of the fraud.

The offender was sentenced to three years in custody, along with restitution and a fine in lieu of forfeiture.

The plaintiff, an 80-year-old woman, sued the City of Toronto after slipping and falling on an allegedly icy sidewalk near an intersection.

The court applied the two-step test for municipal liability under the City of Toronto Act, requiring the plaintiff to first prove the sidewalk was in a state of non-repair.

Based on weather records, winter patrol logs, and the plaintiff's footwear, the court found the plaintiff failed to establish that the sidewalk was in a state of disrepair or presented a dangerous condition.

The action was dismissed, and the City waived its claim for costs.

The offender was convicted of sexually assaulting and sexually interfering with his 12-year-old niece while he was on parole for manslaughter.

The court weighed aggravating factors, including the breach of trust and the offender's intoxication, against mitigating factors.

The court imposed a sentence of 30 months' custody for sexual interference, with the sexual assault charge conditionally stayed under the Kienapple principle.

The offender received 809 days of enhanced credit for pre-sentence custody.

The accused brought an application to strike his guilty plea, arguing it was not fully informed and voluntary because he did not believe he had any other option but to plead guilty.

The Crown consented to the application.

After hearing brief testimony from the accused, the court found that the accused did not subjectively fully understand his options.

The court struck the guilty plea and adjourned the matter to set a trial date, noting the accused's waiver of his section 11(b) Charter rights for the period from the plea to the conclusion of the trial.

The defendants in a solicitor's negligence action brought a motion seeking production of the plaintiff's former divorce lawyer's file.

The plaintiff refused production, claiming solicitor-client privilege.

The court held that the plaintiff impliedly waived privilege by pleading that the defendants caused his losses in the divorce proceedings, thereby putting his litigation strategy and mitigation of damages in issue.

The court ordered the production of the file and awarded costs to the defendants.

In an ongoing assessment of a solicitor's costs, the client sought to introduce evidence of an allegedly improperly commissioned 2015 affidavit and the solicitor's counsel's disciplinary history in Tennessee to attack the solicitor's credibility regarding a 2008 affidavit.

The court ruled the evidence inadmissible, enforcing a prior agreement between the parties not to litigate the 2015 affidavit.

The court also found the evidence failed the test for similar fact evidence and its admission would be highly prejudicial as it would force the solicitor's counsel to become a witness and remove himself from the record.

The Crown brought an application to admit the notes, diagrams, and Exhibit List prepared by a deceased police officer under the principled exception to the hearsay rule.

The officer had served as the Exhibit Officer during the execution of a search warrant in a child exploitation investigation.

The court found that necessity was established due to the officer's death and that threshold reliability was met given the administrative nature of the task, the officer's conscientious work habits, and the corroborative checks performed by other officers.

The application was granted and the evidence was ruled admissible.

During a trial, the Crown brought an application to admit into evidence an Agreed Statement of Facts that the accused had signed and filed in support of earlier guilty pleas which were subsequently struck.

The court dismissed the application, applying the reasoning from R. v. B.(D.M.), holding that the Agreed Statement of Facts was inextricably linked to the struck guilty pleas and fairness required it to be brought under the same protective umbrella.