SCJ 2018

Following a 13-day trial where a jury found the defendant transit commission not negligent for the plaintiff's slip and fall, the defendant sought costs.

The self-represented plaintiff argued she was impecunious and should not pay costs.

The court found the plaintiff's conduct unreasonable, noting she rejected multiple settlement offers and made unfounded allegations of evidence tampering.

Applying the principle that impecuniosity does not shield a party who acts unreasonably, the court awarded the defendant $125,491.71 in costs on a partial indemnity scale.

This case conference endorsement outlines procedural progress in a complex, multi-party construction litigation involving Carillion Construction Inc., the City of Toronto, and NORR Limited, among others.

The court addressed the schedule for executive discoveries, ruling that they must proceed as planned, contrary to the City's submission.

It also confirmed the mediation schedule for March-April 2019, involving various claimants and insurers.

Further directions were given regarding documentary production by subcontractors and the City's amended third-party claim against Metrolinx, setting deadlines for Metrolinx's response or motion.

The applicant sought a declaration of a trust interest in the matrimonial home, which was solely registered in the respondent's name.

The court found that the respondent was unjustly enriched by the applicant's extensive contributions to the home's renovation and maintenance, as well as her assistance in his business.

Concluding that a monetary award under the Family Law Act would be insufficient due to the respondent's debts and CRA liens, the court imposed a constructive trust, declaring the applicant holds a 50% interest in the home.

The court also ordered the respondent to reimburse the applicant for credit card debts and recent home repair costs from the sale proceeds.

The plaintiff brought a motion on consent to certify a class action against the Attorney General of Canada.

The action alleges that the Government of Canada breached inmates' Charter rights by subjecting them to prolonged administrative segregation in federal correctional institutions.

The court found that all criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were satisfied and granted the certification motion.

The plaintiff, Sirron Systems Inc., appealed a Master's order granting security for costs to the defendants, Scott, Pichelli & Easter Limited, Peter Pichelli, and Joel Easter.

The Master had ordered Sirron Systems Inc. to post $33,252.11.

The appeal challenged the Master's findings regarding the plaintiff's assets, impecuniosity, and the merits of the claim, arguing palpable and overriding errors.

The court dismissed the appeal, finding no palpable and overriding error in the Master's holistic assessment, particularly noting that the plaintiff did not allege impecuniosity before the Master and that the merits of the case were neutral.

The appellant, Travelers Insurance Company, appealed an arbitrator's decision that it was the priority insurer for statutory accident benefits following an accident in Nunavut.

The arbitrator found Travelers liable because it was an Ontario insurer, had filed a Power of Attorney and Undertaking (PAU) in Ontario, and was the insurer of the car involved.

Travelers argued the arbitrator erred by applying Ontario law to a Nunavut policy without first determining if the policy provided Ontario benefits coverage.

The court upheld the arbitrator's decision, finding that the standard of review was reasonableness and that Travelers, as an Ontario-licensed insurer and PAU signatory, was bound by Ontario's priority laws, precluding it from denying coverage based on the accident's location.

The Children's Aid Society of Hamilton brought a motion for summary judgment within a Status Review Application concerning the child S.M.A.A. The Society sought an order finding the child in need of protection, placing the child in the custody of the father, and granting the mother supervised access.

The mother did not file responding materials or attend the hearing.

The father consented to the relief sought.

The court granted the summary judgment, finding no genuine issue requiring a trial regarding the child's continued need for protection and the proposed placement.

The child was placed in the father's custody, and the mother was granted supervised access by a mutually agreeable third party, with location, frequency, and duration at the father's discretion.

The Children's Aid Society of Ottawa brought a motion for summary judgment seeking a final order to place A.S. in the custody of his father, L.S., in Calgary.

The mother, K.F., opposed the motion and sought custody or a supervision order.

The court denied K.F.'s request for an adjournment, finding no genuine issue for trial regarding her ability to parent due to persistent mental health issues and an unstable lifestyle.

While finding that A.S.'s removal from K.F.'s care was necessary and that placement with L.S. was in A.S.'s best interests, the court deferred a final order pending an updated assessment of L.S.'s family by Calgary Child Welfare Services.

An interim order was made placing A.S. in the temporary care and custody of L.S.

The plaintiff brought a motion to amend its statement of claim regarding a disputed gas supply contract, seeking to withdraw an allegation of forgery and instead plead misrepresentation and deceit.

The defendant opposed the amendment, arguing it raised a new cause of action that was statute-barred.

The court granted leave to amend, finding that the fundamental issue remained the validity of the contract and the amendment did not constitute a new cause of action.

The court also noted that for limitation purposes, a new claim is commenced when the motion to amend is brought.

The plaintiff employee brought a motion for summary judgment claiming he was terminated without cause with 72 weeks remaining on a fixed-term employment contract.

He sought liquidated damages for the balance of the term, while leaving alternative claims regarding the validity of the termination clause for trial if unsuccessful.

The court dismissed the motion, finding that partial summary judgment was inappropriate in these circumstances.

Applying the principles from Butera and Hryniak, the court held that bifurcating the issues risked inconsistent findings at trial and would not serve the goals of proportionality, timeliness, and affordability.

The applicant sought recognition and enforcement of a foreign judgment obtained in India against the respondent for unpaid goods.

The respondent opposed, arguing the expert evidence on Indian law was inadmissible due to bias, the Indian court lacked jurisdiction, the claim was statute-barred, and there was a denial of natural justice.

The court admitted the expert evidence, found a real and substantial connection to India, held the limitation period did not begin until the foreign appeal period expired, and found no denial of natural justice.

The application was granted and the Indian judgment was recognized.

Manuel Pereira appealed his sentence for dangerous driving and stunt driving, specifically challenging a 24-month driving prohibition.

The appellant argued that the sentencing Justice failed to provide sufficient reasons and did not adequately consider mitigating factors, rendering the driving ban demonstrably unfit.

The Crown sought dismissal of the appeal, asserting the sentence was fair.

The Superior Court of Justice, applying a standard of deference to the sentencing judge, dismissed the appeal, finding the driving ban was entirely fit given the appellant's egregious driving record and the severity of the current offences, distinguishing his case from those of first-time offenders.

Paliare Roland Rosenberg Rothstein LLP (the law firm) brought a motion seeking leave to release $77,228.85 from its trust account to its general account, representing outstanding fees owed by its former client, Stipan Ivancic.

Ivancic opposed the motion, having commenced a separate action alleging solicitor's negligence as a defence to the fees.

The court dismissed the law firm's motion, deeming it premature given the unresolved issues of fees and alleged negligence in the separate action.

The Plaintiff, Indus Mortgage Inc., brought a motion to set aside a previous order by Master Brott that had vacated a partial judgment in its favour.

The Defendant, Sameera Asif, brought a cross-motion concerning the redemption value of a mortgaged property.

The court found that Master Brott's order was made without proper notice to the Plaintiff and reinstated the original judgment by Master Haberman.

The Defendant's cross-motion was dismissed, as the court lacked jurisdiction to determine the enforceability of Minutes of Settlement, deeming it a substantive contractual issue for a federally-appointed judge.

Costs were awarded to the Plaintiff, payable jointly and severally by Asif and her agent, Azeez.

The plaintiffs brought a motion to compel the defendant, Toronto Hydro, to answer refusals arising from cross-examinations on affidavits filed in support of a motion to set aside an ex parte order extending the time for service of the statement of claim.

The refusals related to an inspection of damaged equipment and an engineering report.

The court found the engineering report was protected by solicitor-client privilege and privilege had not been waived.

However, the court ordered the defendant to disclose who directed the inspection and whether any notes or pictures were taken, with a potential court inspection of documents if privilege is claimed.

At a trial management conference for two related actions, the court addressed delays in obtaining a joint expert report on corporate finances and concerns regarding a party's capacity to testify following a stroke.

On consent, the court ordered peremptory deadlines for the production of financial documents to the expert and for the completion of the expert's report.

The court also ordered, on consent, that the party who suffered a stroke undergo an assessment to determine whether he is a person under a disability requiring a litigation guardian under the Rules of Civil Procedure.

The defendant solicitor brought a motion to dismiss the plaintiff's solicitor negligence action for delay under Rule 24.01.

The underlying action related to a motor vehicle accident claim that was previously dismissed.

The court found the plaintiff's delay of nearly nine years to be inordinate and inexcusable, noting significant periods of inactivity and failure to answer undertakings.

The court also found actual prejudice to the defendant due to the loss of critical evidence, including the destruction of the underlying defence file, the death of a key medical expert, and the inability to locate the plaintiff's purported employer.

The motion was granted and the action was dismissed.

In a family law application for custody and access, both parties brought motions for disclosure.

The applicant sought the respondent's medical and psychiatric records relating to his alcohol dependency and mental health issues.

The respondent sought the applicant's financial and employment records to determine her self-employment income for child support purposes.

The court ordered the respondent to produce his medical records related to mental health and alcohol dependency, finding that the best interests of the child outweighed his privacy concerns under the Ryan test for privilege.

The court also ordered the applicant to produce her bank statements for 2015, as she had not provided a financial statement for her business for that year.

The plaintiffs brought a motion for leave to amend their statement of claim to include a bad faith claim against the defendant insurer.

The defendant opposed the motion, arguing that the proposed amendments were not legally tenable and did not disclose a reasonable cause of action.

The court applied the test under Rule 26.01 of the Rules of Civil Procedure and found that the proposed amendments disclosed a reasonable cause of action.

The court granted the plaintiffs' motion for leave to amend their statement of claim and awarded costs to the plaintiffs.

The plaintiffs were involved in a motor vehicle accident and commenced an action against their own insurer and 'John Doe' as the unidentified driver.

Almost two and a half years later, the plaintiffs brought a motion to substitute the proposed defendants for 'John Doe' on the basis of misnomer.

The proposed defendants argued they would suffer prejudice due to the plaintiffs' delay and lack of due diligence.

Applying the Court of Appeal's jurisprudence on misnomer, the Master granted the motion, finding that the proposed defendants' insurer was aware of the accident from the outset.

However, due to the plaintiffs' significant delay, they were denied interest on any ultimate recovery from the date of the accident until June 30, 2018.