SCJ 2018

The applicant father sought sole custody, an unequal division of net family properties, and $2 million in damages against the respondent mother for child abuse and neglect.

The mother's pleadings had been struck years prior due to the failures of her litigation guardian.

At the uncontested trial, evidence revealed the mother suffers from severe intellectual deficiencies and mental illness.

The court declined to issue a final judgment immediately, raising concerns that the mother's litigation guardian failed to appropriately protect her interests.

The court requested submissions from the father on whether the Office of the Public Guardian and Trustee should be appointed to represent the mother before proceeding further.

The applicant, charged with drug trafficking, brought a pre-trial application challenging the constitutional validity of section 184.1 of the Criminal Code, which permits state agents to intercept private communications to prevent bodily harm.

During an undercover drug purchase, the police used an Officer Protection Device to monitor, but not record, the conversation between the undercover officer and the applicant.

The applicant argued that the failure to record the conversation and the statutory requirement to destroy such recordings violated his rights under sections 7 and 8 of the Charter.

The court dismissed the application, finding that section 184.1 contains adequate safeguards and strikes an appropriate balance between state interests and individual privacy rights, rendering it constitutionally valid.

The parties separated after 11 years of marriage and disputed custody, access, and support for their 11-year-old child.

The mother sought sole custody, alleging the father was controlling, undermined her parenting, and alienated the child.

The father sought joint custody and a continuation of the shared parenting schedule.

The court adopted the section 30 assessor's recommendation to grant the mother sole custody due to the parents' inability to communicate effectively and the father's contemptuous behaviour.

A week-about shared parenting schedule was ordered to minimize transitions and conflict.

The court imputed income to the retired father based on his capital assets and dismissed his claim for spousal support, ordering no child support due to the parties' similar incomes.

The applicants sought a vesting order to rectify a 28-year-old mistake made during the settlement of their father's estate, which resulted in them holding three merged properties as tenants in common rather than separately.

The applicants had previously been denied a technical severance by the City's Committee of Adjustment.

The court dismissed the application without prejudice, holding that while it has jurisdiction to grant a vesting order that contravenes the Planning Act, it must exercise caution.

The court found there was insufficient evidence regarding the City's concerns and directed that any future application must include notice to the City.

The paternal grandmother and uncle brought an interim motion for access to their 13-year-old grandson and nephew following the death of the child's father.

The mother opposed the motion, citing the child's lack of interest in access.

The court applied the Chapman test, noting that deference should generally be given to the custodial parent's decision unless the parent is acting arbitrarily to imperil a positive relationship.

Finding that the mother was not acting arbitrarily and giving significant weight to the 13-year-old child's wishes, the court dismissed the motion for interim access.

The appellant appealed his convictions for impaired driving and driving with a blood alcohol content over 80 mg.

He argued the trial judge erred in finding impairment by alcohol, relying on the toxicologist's evidence, and dismissing his Charter applications under sections 8, 9, and 10(b).

The Superior Court of Justice found no errors in the trial judge's assessment of the evidence or her Charter rulings, concluding that the appellant was not detained prior to arrest and that the breath demand was made as soon as practicable.

The appeal was dismissed.

The applicant sought to set aside an arbitration award, alleging the arbitrator breached the rules of natural justice and exceeded his jurisdiction.

The applicant argued the arbitrator unfairly denied an adjournment, admitted new expert evidence, altered the definition of disputed software, and improperly relied on a draft award provided by the respondent.

The applicant also contended the arbitrator lacked jurisdiction to grant injunctive relief against non-parties.

The Superior Court of Justice dismissed the application, finding no procedural unfairness or jurisdictional error, and ordered the recognition and enforcement of the arbitral award.

The accused, charged with serious firearms and drug trafficking offences, sought a bail review after being denied bail.

The court found that a newly proposed supervision plan, which included house arrest, three sureties pledging significant funds, and an ankle monitor, constituted a material change in circumstances.

Balancing the tertiary ground factors, the court concluded that the strict release plan was sufficient to maintain confidence in the administration of justice and granted bail.

The appellant appealed a trial judgment regarding spousal support, child support, and section 7 expenses.

He argued the trial judge erred by imputing income based on his rental income without deducting the expenses incurred to earn that income, and by failing to apply the shared custody provisions of the Child Support Guidelines.

The Superior Court of Justice found that the trial judge's failure to address the rental expenses contained in the appellant's tax returns constituted a significant misapprehension of evidence and an error in principle.

The court ordered a new trial to determine the appellant's income, spousal support, child support, and section 7 expenses.

The defendant employer brought a motion for summary judgment to dismiss the plaintiff's wrongful dismissal action on the basis that it was commenced after the expiry of the two-year limitation period.

The plaintiff argued that the claim was not discoverable until settlement negotiations broke down and the employer refused to make further payments.

The court rejected this argument, finding that the plaintiff, who was represented by counsel, knew she had suffered damages and that litigation was an appropriate remedy shortly after her termination.

The motion was granted and the action was dismissed as statute-barred.

The plaintiff credit union brought four actions for repayment of commercial loans against the defendants.

The defendants counterclaimed, alleging fraud and misconduct by a former employee of the plaintiff who negotiated the loans.

The plaintiff moved to strike the amended statements of defence and counterclaim.

The court granted the motion, finding that the defendants' pleadings contained sweeping conclusory allegations devoid of supporting material facts, failing to meet the requirements of Rule 25.06.

The pleadings were struck with leave to amend.

The accused was convicted by a jury of aggravated assault and possession of a weapon for a dangerous purpose following an altercation outside a bar where he slashed the victim's hand with a machete.

The Crown sought a four-year penitentiary sentence, while the defence sought eighteen months.

The court sentenced the accused to two years less a day in custody, minus credit for pre-sentence custody, followed by two years of probation, emphasizing denunciation and deterrence for the use of weapons.

The client abandoned her application for an assessment of her former solicitor's accounts the day before the scheduled hearing.

The assessment officer endorsed the discontinuance without making a costs order.

The solicitor brought a motion for costs of the abandoned application.

The court found it had jurisdiction to award costs under s. 131(1) of the Courts of Justice Act and Rule 38.08(3), treating the motion akin to a motion to vary an order made without notice.

The court awarded the solicitor partial indemnity costs fixed at $1,000, discounting the amount claimed due to proportionality and avoidable preparation time.

The plaintiff brought a motion for summary judgment to enforce a settlement agreement against the defendant.

The agreement required the defendant to pay $30,000, failing which he would consent to judgment for liquidated damages of $60,000.

The defendant paid $10,000 but failed to pay the balance.

The court found that the liquidated damages clause was not an unenforceable penalty clause, as the amount was not extravagant or unconscionable compared to the original $200,000 claim.

The court granted summary judgment, holding the defendant liable for $60,000.

The plaintiffs brought a motion to amend their statement of claim to add an insurer as a defendant for unidentified motorist coverage, over four years after learning an unidentified vehicle was involved in the accident.

The proposed defendant argued the claim was statute-barred.

The court applied recent appellate jurisprudence holding that the limitation period for an unidentified motorist claim does not begin to run until a demand for indemnity is made and refused.

As no demand had yet been refused, the limitation period had not expired, and the motion to amend was granted.

The plaintiff successfully defeated the defendant's anti-SLAPP motion in a defamation action and subsequently sought costs on a substantial or partial indemnity basis.

The court considered the presumption against costs to a successful responding party under s. 137.1(8) of the Courts of Justice Act.

The court declined to award costs, finding no compelling reason to depart from the statutory presumption and noting that awarding costs solely because the impugned comments lacked public interest could deter the use of anti-SLAPP legislation.

The offender pled guilty to importing approximately 2 kilograms of cocaine into Canada.

The Crown sought a sentence of six years, while the defence sought a sentence in the upper reformatory range based on the offender's Aboriginal status.

The court considered the offender's Gladue report, which detailed a history of intergenerational trauma, substance abuse, and mental health issues stemming from his great-grandfather's removal from his Aboriginal family.

Applying Gladue principles, the court found the offender's moral culpability was significantly reduced and sentenced him to 3 years imprisonment.

The defendant brought a motion to dismiss the plaintiff's action for delay under Rules 24.01(2) and 48.14(1) of the Rules of Civil Procedure.

The action, arising from a 2010 theft and vandalism incident, was struck from the trial list in April 2015 and not restored.

The court found inordinate and inexcusable delay caused by the plaintiff's counsel, which resulted in a presumption of prejudice.

The plaintiff failed to rebut this presumption, as relevant documents were not produced and a key witness's memory had faded.

The motion was granted and the action was dismissed.

The appellant appealed her conviction for refusing to provide a breath sample.

She argued the trial judge erred in finding her refusal was unequivocal, misapprehended evidence, and improperly rejected her reasonable excuse defence based on a respiratory infection.

The Superior Court of Justice dismissed the appeal, finding the trial judge's conclusion that the appellant was intentionally delaying the investigation was reasonable and supported by video evidence.

The court also held there was no material misapprehension of evidence and the trial judge properly applied credibility assessment principles.

The plaintiff franchisee sought an interlocutory injunction to prevent the defendant franchisor from acting on a notice terminating the franchise agreement.

The termination followed a dispute over the scope and cost of renovations required for a final five-year renewal.

Applying the RJR McDonald test, the court found a serious issue to be tried but concluded the franchisee failed to establish irreparable harm, as damages would be an adequate remedy and the franchise term was nearing its absolute end.

The balance of convenience also favoured the franchisor, partly because the franchisee failed to provide an undertaking as to damages.

The motion for an interlocutory injunction was dismissed.