SCJ 2018

The accused, charged with the second-degree murder of his son, brought an application to have the defence of self-defence put to the jury.

The accused testified that his son threatened to kill him, prompting the accused to stab him.

The court applied the air of reality test to the new self-defence provisions under section 34 of the Criminal Code.

The court found there was an evidential foundation for the accused's reasonable belief of a threat and defensive purpose, and concluded that the reasonableness of the act must be left to the jury.

The respondent brought a motion for summary judgment to enforce a separation agreement, under which the applicant owed her a balance of over $3.1 million.

The applicant sought to set aside the agreement, alleging material non-disclosure of the respondent's business assets and development projects.

The court found no evidence of material non-disclosure, noting the applicant had a general awareness of the assets and had failed to disclose the full value of his own assets prior to mediation.

Finding no genuine issue requiring a trial, the court granted summary judgment in favour of the respondent and dismissed the applicant's motion to consolidate proceedings.

The accused, facing charges including breach of trust, fraudulent computer access, and organized crime affiliation, brought an application to compel the Canada Revenue Agency (CRA) to produce extensive computer records for his defence.

The CRA opposed, citing taxpayer privacy under the Income Tax Act and arguing the request was overly broad.

The Crown characterized the request as a fishing expedition.

The court dismissed the application, finding that the accused failed to establish the likely relevance of the requested information to an issue at trial or witness competence, noting the vague assertions and the accused's own admissions of unauthorized access.

The plaintiff landlord brought a motion to amend its statement of claim against the defendant tenant, its corporate parent, and individual directors following the abandonment of a commercial lease.

The proposed amendments sought to pierce the corporate veil and allege that the corporate parent and individuals were the alter ego of the tenant.

The court denied the amendments relating to piercing the corporate veil, finding they lacked the requisite particulars and were mere 'window dressing' attempting to turn a breach of contract into a fraud claim.

However, the court allowed an amendment adding a claim under section 50 of the Commercial Tenancies Act, noting that its viability should not be determined at this preliminary stage.

In a high-conflict family law proceeding, the mother brought a motion to continue a section 30 parenting assessment and to order reunification therapy for the parties and their youngest son.

The father brought a cross-motion to appoint a lawyer for the child or order a Voice of the Child Report.

The court found a history of order non-compliance by the father and determined that the child's estrangement from the mother required immediate intervention.

The court granted the mother's motion, ordering reunification therapy to commence immediately alongside the section 30 assessment, and dismissed the father's motion, finding that further involving the child in the litigation was not in his best interests.

The applicant, convicted of first degree murder for the sexual assault and murder of his wife, applied under the 'faint hope clause' (s. 745.6 of the Criminal Code) for a reduction in his 25-year parole ineligibility period.

The court conducted a judicial screening to determine if there was a substantial likelihood that a jury would unanimously recommend early parole.

Finding that the applicant maintained his innocence, showed no meaningful character change, and that the index offence was highly aggravating, the court concluded the applicant failed to meet the burden.

The application was dismissed.

The respondent was previously found in civil contempt for breaching a court order that enjoined him from providing unauthorized legal services.

The Law Society sought a 30-day period of incarceration.

The court declined to order incarceration or a fine, noting the respondent's apology, remorse, and limited financial means.

The court ordered the respondent to complete 40 hours of community service and make monthly payments towards outstanding costs orders.

The defendants in a solicitor negligence action brought a motion to remove the plaintiff's counsel of record, arguing that counsel would inevitably be required to testify as a witness regarding advice he gave the plaintiff in the underlying real estate litigation.

The court applied the factors from Essa (Township) v. Guergis and concluded that counsel's evidence regarding the plaintiff's decision to proceed with the underlying action was highly relevant to the defendants' defence that the plaintiff's losses were caused by his current counsel's advice.

The court ordered the removal of the plaintiff's counsel and directed the production of counsel's file and accounts from the underlying action based on a deemed waiver of solicitor-client privilege.

The plaintiff, Stephen Deak, brought an action against GreenMantra Recycling Technologies Ltd. concerning the validity of an overtime averaging agreement and a termination clause in his employment contract.

The court found the overtime averaging agreement invalid under section 22 of the Employment Standards Act, 2000, because it lacked an expiry date.

The court also found the termination clause unenforceable as it provided for a notice period less than the minimum prescribed by the ESA, thereby entitling the employee to statutory notice.

The applicant municipality sought a declaration that its use of a property for commercial aggregate extraction was permitted under the applicable zoning by-law or, alternatively, was a legal non-conforming use.

The property had previously been used as a municipal park, with only small-scale, incidental extraction for municipal purposes.

The court found that the current large-scale commercial extraction was a difference in kind, not merely an intensification of the pre-existing use.

Consequently, the application was dismissed, and the extraction was deemed not to be a permitted use.

The plaintiffs, a Muslim-Canadian businessman and his restaurant chain, sued the defendants for defamation after the defendants posted videos containing hateful comments about Muslims and the restaurant.

One of the defendants brought a motion to dismiss the action under the anti-SLAPP provisions of section 137.1 of the Courts of Justice Act, and alternatively under Rule 21.01(3)(d) as an abuse of process.

The court dismissed the motion, finding that the defendant's expression was not related to a matter of public interest, but rather constituted hallmarks of hate directed at the plaintiffs.

The court also found the pleadings set out a valid prima facie case of defamation.

The applicant father and respondent mother engaged in a high-conflict custody and access dispute over their five-year-old child.

The mother sought sole custody and decision-making, while the father sought expanded access and parallel parenting.

Following a 44-day trial and a section 30 assessment, the court granted the mother sole custody and primary residence, but significantly expanded the father's parenting time to include phased-in overnight visits.

The court ordered a divided parallel parenting regime for decision-making, granting the mother authority over education and routine medical care, and the father authority over routine dental care and final decision-making for major medical and dental issues.

The applicant children's aid society brought a motion for summary judgment seeking to have two children placed in extended society care with no parental access.

The children had been apprehended following severe physical abuse and restraint by the respondent parents.

The court applied the summary judgment framework and found no genuine issue requiring a trial, as the material facts of the abuse were established and the parents' parenting capacity assessments indicated a high risk of future harm.

The motion was granted, the children were placed in extended society care, and parental access was denied as it was not in the children's best interests.

The plaintiff in a proposed securities class action moved for certification for settlement purposes, approval of a partial settlement with the auditor defendant, dismissal of the action against individual defendants, and approval of class counsel fees.

The action alleged misrepresentations in the corporate defendant's financial statements.

The court approved the $1 million (USD) settlement with the auditor, finding it fair and reasonable, particularly given the statutory liability limits for experts.

The court also approved the dismissal against the individual defendants and class counsel's fee request of 30% of the settlement funds plus disbursements.

The respondent mother brought a motion to suspend the applicant father's parenting time pending a Family and Children's Services (FACS) investigation into allegations that the father's step-son inappropriately touched the parties' child.

The court noted that both parents had inappropriately obtained taped statements from the child, resulting in contradictory accounts.

The court found the allegations serious but concluded it was not necessary to deny the father contact with the children.

The court ordered the resumption of the existing parenting schedule with conditions, including that the child not share a bedroom and that the parties engage in counselling.

The accused, charged with the second-degree murder of his son, sought to introduce expert psychiatric evidence to support a claim of self-defence analogous to battered spouse syndrome.

The proposed expert opined that the accused's actions fit the idea of a pre-emptive homicide as self-defence.

The court excluded this portion of the expert's opinion, finding it unnecessary, beyond the expert's qualifications, and liable to usurp the jury's function in assessing the accused's state of mind and the reasonableness of his actions under section 34(2) of the Criminal Code.

The applicant mother brought a motion for a temporary order for custody of the parties' two children, proposing limited access for the respondent father.

The mother raised concerns regarding the father's mental health and parenting style.

The court found the father's mental health was well-managed and the mother's parenting concerns were minor.

The court ordered a temporary parenting schedule that provided the father with significant overnight parenting time, noting that it was in the children's best interests to maximize time with both parents.

During a jury trial, the Crown brought an application under section 9(2) of the Canada Evidence Act to cross-examine its own witness on a prior inconsistent statement.

The witness claimed to have no memory of conversations and events that he had previously detailed in a police statement.

The court found the witness's claim of memory loss was not credible, noting he could recall other significant details from the same day.

The court granted the application, permitting the Crown to cross-examine the witness on the prior statement.

Following his conviction for multiple counts of fraud, the accused applied to reopen his trial prior to sentencing to introduce new evidence.

The proposed evidence was his passport, which contained a visa stamp he claimed supported his alibi that he was in St. Kitts when some of the fraudulent transactions occurred.

The court applied the Palmer test for the admission of fresh evidence and dismissed the application.

The court found that the evidence failed to meet the due diligence requirement and, more importantly, lacked sufficient importance, as the visa stamp did not prove the accused's physical presence in St. Kitts at the relevant times and would not have affected the trial's outcome or the court's adverse credibility findings against him.

The applicant husband and respondent wife brought a motion and cross-motion following a 27-year relationship.

The husband sought exclusive possession of the matrimonial home and spousal support, while the wife sought the sale of the home and occupation rent.

The court ordered the immediate sale of the matrimonial home pursuant to the Partition Act, dismissing the husband's claim for exclusive possession.

The court awarded the husband interim spousal support of $2,315 per month, noting his lower income as an artist compared to the wife's income as a pharmacist, and ordered the wife to secure the support with a life insurance policy.

The wife's claim for occupation rent was dismissed because she had not paid spousal support since separation and the husband had housed their dependent children.