SCJ 2018

The parties reached a consent order regarding temporary relief and the matrimonial home prior to the return of a motion.

The applicant sought costs for the initial motion where she achieved partial success, while the respondent argued each party should bear their own costs.

The court awarded the applicant $3,000 in costs, noting her partial success on the contested motion before the previous judge.

The plaintiff tenant brought a motion to consolidate or try together its action against its insurer for business interruption and water damage with a companion action brought by its landlord for rental arrears and repair costs.

Both actions arose from a flood in the leased premises, with overlapping factual issues regarding the cause of the flood and the tenant's cooperation in remediation efforts.

The court granted the motion, finding that the actions shared common questions of fact and arose from the same occurrence, and that trying them together would avoid multiplicity of proceedings and inconsistent results.

The accused brought a Rowbotham application seeking state-funded counsel for his sexual assault trial.

The court found that while the accused was ineligible for Legal Aid and required counsel for complex pre-trial motions under ss. 276 and 278 of the Criminal Code, he failed to establish indigence.

The court noted the accused's high level of education and combined income with his common-law partner, concluding he could afford the estimated $3,000 fee for the pre-trial motions.

The application was denied.

The respondent husband brought a summary judgment motion to dismiss the applicant wife's application to set aside their separation agreement.

The wife argued that her poor health, reliance on a disability pension, and need for home repairs constituted an unanticipated change in circumstances.

Applying the two-stage test from Miglin, the court found that the agreement was negotiated with competent counsel and that the wife's change in circumstances did not represent a significant departure from what could have been reasonably anticipated.

The motion for summary judgment was granted and the application to set aside the agreement was dismissed.

Historic prosecution arising from decades of alleged spousal abuse, child abuse, threats, indecent assaults, and related misconduct within a family home.

The court conducted a detailed credibility and reliability assessment in light of very long reporting delay, memory frailties, family discussions, and partial corroboration through a mixed police statement by the accused.

Applying principles governing delayed disclosure, credibility, time particularization, and sexualized force, the court convicted on most assault, threat, indecent assault, and mischief counts, but acquitted on several counts where reasonable doubt remained, including the buggery count, one belt-strapping count, the firearm-pointing count, and one assault-with-weapon count.

Following a finding that the defendant breached its duty of good faith by refusing to allow the plaintiff to exercise stock options, the court had to determine the appropriate remedy.

The parties' experts disagreed on whether Quebec law required specific performance or damages.

The court appointed an independent expert, former SCC Justice Louis LeBel, who concluded that specific performance was the appropriate remedy under Quebec law.

The court rejected the defendant's argument that Ontario law should apply as the lex fori, finding that the choice of remedy was substantive and governed by the lex causae (Quebec law).

The plaintiff was awarded specific performance and partial indemnity costs.

The applicant, charged with first degree murder, brought a fresh application for a stay of proceedings under s. 11(b) of the Charter after the Court of Appeal previously overturned a stay and ordered a new trial.

The court conducted a preliminary assessment under Rule 34.02 of the Criminal Proceedings Rules.

Finding that the delay since the appellate decision was entirely attributable to the applicant's own requests for time to prepare and seek leave to appeal, the court concluded the application had no reasonable prospect of success and summarily dismissed it.

Following a decision with divided success, the applicant sought costs based on three unaccepted offers to settle.

The respondent argued the claimed amount was excessive and noted duplication of effort due to a change of solicitors.

The court agreed with the respondent's submissions on quantum but applied Rule 49.10, awarding the applicant partial indemnity costs up to the date of its final offer and substantial indemnity costs thereafter, fixing total costs at $13,501.01.

Following a lengthy family law trial where both parties experienced divided success, the applicant sought costs on the basis of the respondent's alleged bad faith and failure to disclose.

The respondent sought reimbursement of a $140,000 interim disbursement payment.

The court reviewed the factors under Rule 24 of the Family Law Rules, including the parties' offers to settle and the respondent's unreasonable conduct.

The court concluded that the respondent's conduct did not rise to the level of bad faith and, given the divided success and the offers to settle, ordered that no costs be awarded to either party.

The respondent's request for reimbursement was also denied.

The plaintiff bank brought a motion for summary judgment against the defendant for the balance owing on a mortgage, alleging he was a guarantor.

The defendant brought a cross-motion for summary judgment dismissing the action against him, arguing he never signed a guarantee.

The court found that while other documents indicated an intention for the defendant to provide a guarantee, he never actually signed the Acknowledgement and Direction or any document containing the guarantee terms.

The court held that the Statute of Frauds requires a guarantee to be in writing and signed, and the doctrine of part performance does not apply to guarantees.

The plaintiff's motion was dismissed, and the defendant's cross-motion was granted, dismissing the action against him.

The self-represented plaintiff brought a medical malpractice action arising from cosmetic eyelid surgeries, alleging negligent surgical technique, lack of informed consent, disfigurement, and later eye complications.

The court preferred the defence oculoplastic expert over the plaintiff's plastic surgery expert, finding the initial and subsequent surgeries were competently performed and that the moving party had consented to them after adequate disclosure of risks, benefits, and medically reasonable alternatives.

Although the defendant's limitation defence failed because ongoing good-faith remedial efforts made earlier litigation inappropriate, the plaintiff failed on standard of care, informed consent, and causation.

The action was dismissed, with the court also assessing hypothetical damages in the event liability had been established.

The defendant municipality brought a motion to strike the plaintiff bridge company's statement of claim, which sought contribution and indemnity for damages and legal costs arising from five nuisance actions brought by local residents.

The residents alleged that the plaintiff's boarded-up houses caused urban blight.

The plaintiff claimed the municipality unlawfully withheld demolition permits, causing the nuisance.

The court dismissed the motion to strike, finding it was not plain and obvious that the claim disclosed no reasonable cause of action, and that the action was not an abuse of process nor barred by issue estoppel.

The plaintiff was granted leave to amend its pleadings to better particularize misfeasance in public office and negligence.

The applicant, accused of fatally stabbing his son, brought a Corbett application to exclude his criminal record from being adduced at trial.

He argued the dated record would cause undue prejudice and lead to improper propensity reasoning by the jury.

The Crown opposed, noting the applicant's credibility was central and he had already introduced parts of his record and attacked the victim's character.

The court dismissed the application, finding the applicant's credibility was crucial and a properly instructed jury could use the criminal record for its limited purpose.

During a criminal trial, the trial judge noted a discrepancy between the dates of the offence in the indictment and the evidence presented, and requested written submissions from the parties on the issue.

The defence subsequently brought a motion for a mistrial, arguing that the judge's intervention raised a reasonable apprehension of bias by allegedly suggesting the Crown reopen its case to amend the indictment.

The Superior Court of Justice dismissed the motion, finding that the judge merely demonstrated vigilance by noting the discrepancy and requesting submissions, which did not constitute bias or an appearance of bias.

The plaintiff underwent a nephrectomy performed by the defendant urologist after being diagnosed with suspected renal cell carcinoma.

Post-surgery pathology revealed the mass was a benign renal abscess.

The plaintiff sued for medical malpractice, alleging breach of the standard of care, lack of informed consent, and that the unnecessary removal of her kidney accelerated her end-stage renal failure.

The Superior Court of Justice dismissed the action, finding that the defendant met the standard of care as the clinical presentation and imaging strongly indicated malignancy and a biopsy was not the standard of care.

The court also found that informed consent was obtained and that the plaintiff failed to prove causation, as her pre-existing poorly controlled diabetes would have necessitated a kidney transplant regardless of the nephrectomy.

The defendant, Pomerleau Inc., brought a motion to adjourn a scheduled 18-day trial on the basis that a pending contested bankruptcy motion against the plaintiff, ABCO One Corporation, would likely result in bankruptcy, rendering trial preparation a waste of money.

The court granted leave for the motion under the Construction Lien Act but dismissed the motion to adjourn.

The court relied on expert evidence that a bankruptcy judge would likely stay any bankruptcy order to allow the trial to proceed, and noted that adjourning the trial might improperly influence the bankruptcy judge.

The court awarded costs of $1,000 to the plaintiff, reduced because the matter could have been handled more efficiently via a case conference.

The applicants brought a motion under Rule 75.06 of the Rules of Civil Procedure requesting a trial of issues arising from the estate of the deceased.

The court directed a trial on the single issue of the validity of the deceased's will dated May 16, 1994, noting that resolving this issue would likely resolve all other issues or determine if further proceedings are necessary.

The court ordered the affidavits to form the pleadings and permitted cross-examinations.

No costs were awarded as success was split.

The respondent father brought a motion for a stay of enforcement pending an appeal of a temporary order that changed primary parenting responsibility of the parties' 7-year-old daughter to the applicant mother.

The father argued the motion judge erred in refusing an adjournment, lacked jurisdiction, and failed to maintain the status quo.

The court dismissed the motion for a stay, finding the motion judge's refusal of an adjournment was entitled to deference, the jurisdictional argument lacked merit under rule 15(28), and compliance with the temporary order would not cause irreparable harm while the balance of convenience favoured leaving the child in the mother's care pending trial.

The court determined the costs of two motions in a family law proceeding.

The respondent father was successful on a motion for the advancement of funds and was awarded costs of $22,967.05.

The respondent was unsuccessful on a motion to adjourn the trial, and the applicant mother was awarded costs of $7,631.38 for that motion.

The court ordered a set-off, resulting in a net payment of $15,335.67 by the applicant to the respondent.

The accused was charged with sexual assault.

The complainant alleged the accused touched her breasts and vagina while she was passed out after a night of heavy drinking.

The accused denied the contact.

The court found the complainant credible but unreliable due to her intoxication and contradictions from other witnesses regarding key details like sleeping arrangements and interactions.

DNA evidence on the complainant's bra matched the accused, but the defense proposed an innocent transfer through profuse slobbering during repeated social interactions over the drunken weekend.

While finding the innocent transfer implausible, the court could not definitively rule it out, leading to reasonable doubt.

The charge was dismissed.