SCJ 2018

The defendants submitted written requests to dismiss the plaintiff's action under Rule 2.1 of the Rules of Civil Procedure.

The court issued notices to the plaintiff that it was considering dismissing the action against the defendant judges and Jeff C. Hopkins.

The plaintiff's written submissions failed to provide material facts supporting the claims or address the absolute immunity of the defendant judges.

The court found the attenuated procedure under Rule 2.1 appropriate and dismissed the plaintiff's claim.

During a trial for first degree murder, the Crown sought an adverse inference instruction regarding the accused's failure to call witnesses to support an alibi mentioned in his police statement.

The defence had argued in closing that the alibi was uncontradicted and raised a reasonable doubt.

The trial judge declined to give the adverse inference instruction, finding that the defence's closing submissions did not leave an unbalanced picture with the jury and that it would be unfair since the Crown had introduced the statement containing the alibi.

The foster parents of a nine-month-old child brought a motion to be added as parties or granted expanded participatory rights in a child protection proceeding where the Society sought society wardship.

The child had been in their care since she was three days old.

The court applied the criteria for adding parties in child protection cases and determined that adding the foster parents would prolong the proceeding, was not necessary to determine the issues, and that they did not have a legal interest at this stage.

The motion was dismissed, though the foster parents retained their statutory right to make submissions at trial.

Following a judge-alone criminal trial on one count of sexual assault and two counts of breach of probation, the court assessed whether the Crown had proven guilt beyond a reasonable doubt.

The decision emphasized that credibility and reliability remain distinct concepts in sexual assault cases and that ordinary scrutiny applies, while guarding against improper myths about expected victim behaviour.

The court found multiple material inconsistencies between the complainant’s testimony, prior statements, police evidence, and nursing evidence.

Those inconsistencies raised a reasonable doubt, and all charges were dismissed.

The applicant, charged with first-degree murder, brought a pretrial application to exclude his formal statement to police, alleging it was involuntary and obtained in violation of his rights under ss. 10(a) and 10(b) of the Charter.

The court found the statement was voluntary, as the police interrogation techniques did not overbear the applicant's will.

However, the court found that the police breached ss. 10(a) and 10(b) by failing to inform the applicant of the deceased's name or specific details of the murder charge, which prevented him from meaningfully instructing counsel.

Applying the Grant framework under s. 24(2), the court concluded that admitting the statement would bring the administration of justice into disrepute and excluded the evidence.

In a supplementary judgment following a family law trial, the court addressed two outstanding property equalization issues that were not decided in the main judgment.

The court ordered the respondent to pay $6,946.41 to the applicant for her share of the net proceeds from the sale of a condominium.

The court deferred the issue of a $53,764.73 RRSP spousal rollover, directing the parties to address it during oral submissions on costs.

The court also appended a list of typographical corrections to the main judgment.

The defendant brought a motion to compel answers to undertakings from examinations for discovery, and the court also determined costs for a previously dismissed security for costs motion.

The court ordered the plaintiff to produce a detailed ledger but dismissed the requests for further time sheets and bank records.

The plaintiff was awarded $5,000 in substantial indemnity costs for successfully defending the security for costs motion and for mixed success on the undertakings motion.

Following a successful motion to change regarding retroactive child support, the applicant sought costs on a full recovery basis from the date of her offer to settle.

The respondent argued for a reduction based on partial success on a cross-motion, unnecessary costs, and his financial circumstances.

The court found the applicant's offers to settle were reasonable and the respondent's focus on the cross-motion was unreasonable.

The court awarded the applicant $15,000 in costs, noting that limited financial means cannot be used as a shield against costs orders.

Following a motion to change regarding child and spousal support, the applicant sought costs of $65,000 based on an offer to settle.

The respondent argued the applicant's counsel's hourly rate of $475 was excessive and should be capped at $350.

The court found the higher rate was justified due to counsel's special expertise as a certified specialist in family law.

However, considering the applicant's mixed success on some issues and redundant preparation time, the court fixed costs at $50,000 payable by the respondent.

The appellant appealed his conviction for operating a motor vehicle with a blood alcohol concentration over 80mg.

He argued the trial judge erred in finding his statements voluntary, finding reasonable suspicion for the roadside demand, finding reasonable grounds for the breathalyzer demand, refusing to exclude evidence under s. 24(2) of the Charter for a s. 10(b) breach, refusing a stay for lost video evidence, and rejecting his bolus drinking defence.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors in the trial judge's credibility assessments, factual findings, or application of legal principles.

The defendant brought a motion to compel the plaintiff to attend independent medical examinations (IMEs) without conditions and sought costs thrown away for a previously cancelled appointment.

The plaintiff requested to have a support person present and to audio record the examination, citing stress and allegations of bias against the examining doctor.

The court permitted the plaintiff to have a support person present as a passive observer due to her mental condition, but denied the request to audio record the examination, finding insufficient evidence of bias.

The court also declined to award costs thrown away, finding the defendant booked the appointment prematurely before terms were agreed upon, and held that the plaintiff was not required to sign consent forms for the IMEs.

The applicant sought an interlocutory injunction to extend the voting period in the respondent political party's leadership contest, alleging that he and others had not received the necessary verification numbers to vote electronically.

The court dismissed the application on two grounds.

First, the applicant failed to exhaust the internal dispute resolution mechanisms provided in the party's election rules before seeking court intervention.

Second, applying the tripartite test for an interlocutory injunction, the court found that the balance of convenience heavily favoured the respondents, as extending the voting period at the eleventh hour would prejudice the tens of thousands of members who had already voted and disrupt the scheduled leadership convention.

The defendant brought a motion under s. 137.1 of the Courts of Justice Act to dismiss a libel action commenced by the plaintiff, the former Chair of the Toronto Port Authority.

The action arose from a statement attributed to the defendant in a magazine article about Porter Airlines.

The court found the statement related to a matter of public interest and the plaintiff failed to demonstrate reasonable grounds to believe the proceeding had substantial merit or that the defendant had no valid defence.

The action was dismissed, and the defendant was awarded full indemnity costs of $80,000, but the court declined to award damages for bad faith.

The applicant law firm sought a declaration of entitlement to $32,100 held in trust by the respondent law firm, representing unpaid legal fees for services provided to a former client.

The respondent estate argued the claim was statute-barred and the applicant lacked standing.

The court found the respondent law firm's undertaking to protect the account was binding on the estate and stopped the limitation period from running.

The court declared the applicant entitled to payment subject to an assessment of the account, finding special circumstances warranted an extension of the statutory time limit for assessment due to the lack of particularity in the account and mutual delay.

The applicant moved to change a child and spousal support order following his termination for cause from his position as CEO of Redknee.

He claimed a catastrophic change in circumstances due to his job loss and the forced sale of his shares to meet margin calls.

The court dismissed the motion, finding it premature as the original order required his income to drop below $465,000 for two consecutive years before a review.

The court also found the applicant failed to prove a material change not contemplated by the original order, noting his lack of disclosure, failure to mitigate, and prioritization of his second family's expenses over his support obligations.

The applicants brought a motion to oppose the confirmation of a Master's report regarding the amount owing under a boiler and machinery insurance policy issued by the respondent.

The applicants argued the Master erred in law by distinguishing between the valuation clauses in their property policies and the respondent's policy, and by accepting the respondent's valuation evidence which allegedly factored in depreciation improperly.

The Superior Court of Justice dismissed the motion, finding no error in the Master's conclusion that the respondent's policy required replacement with property of 'like kind, capacity, size and quality', which differed from the 'new for old' replacement cost coverage in the applicants' policies.

The defendants appealed a Master's decision refusing to discharge a certificate of pending litigation (CPL) on their property.

The plaintiff had commenced an action for specific performance of an agreement of purchase and sale.

The defendants argued that the plaintiff's subsequent purchase of a nearby property negated the uniqueness of their property.

The court upheld the Master's decision, finding no error of law in her assessment of uniqueness or her reliance on an affidavit from the plaintiff's ex-husband explaining the purpose of the second property.

The court concluded there remained a triable issue regarding the plaintiff's interest in the land and that the balance of convenience favoured maintaining the CPL.

The litigation involves a dispute over property owned by an unincorporated association following the expulsion of several members.

Motions were brought to declare the membership of the association and to dismiss the involvement of both the unincorporated and newly incorporated associations for lack of standing.

The court dismissed the motion for a declaration of membership, finding that factual disputes required a trial.

The court also dismissed the proceedings involving both associations, holding that the unincorporated association is not a legal entity capable of suing or being sued, and the corporate association has no interest in the litigation.

The plaintiff brought a motion for a further and better affidavit of documents, arguing the defendant omitted documents and failed to sufficiently particularize surveillance reports in Schedule B. The plaintiff also sought to cross-examine the deponent.

The court dismissed the motion, finding no evidence of omitted documents and concluding the defendant provided sufficient particulars of the surveillance reports to allow the plaintiff to challenge the privilege claim after discovery.

The accused, charged with aggravated assault and assault with a weapon following an altercation outside a bar, brought an application to have the defence of self-defence put to the jury.

The Crown opposed the application, arguing it lacked an evidential foundation.

The trial judge reviewed the testimony and surveillance video, which showed the accused chasing the victims and attacking them with a machete after the initial threat had subsided.

The court found that even if the accused had a subjective belief and defensive purpose, his responsive acts were not objectively reasonable in the circumstances.

The application was dismissed as there was no air of reality to the defence.