SCJ 2018

The plaintiff mortgagee brought a motion for summary judgment seeking possession of the individual defendant's residential home to satisfy a mortgage shortfall of approximately $978,000 following the sale of a commercial investment property.

The defendants opposed the motion, counterclaiming that the plaintiff sold the investment property improvidently for $4.8 million despite earlier appraisals valuing it much higher, and challenging nearly $500,000 in renewal fees and penalties.

The court dismissed the motion, finding genuine issues for trial regarding the conflicting property appraisals, the plaintiff's efforts to sell the property, and the legal effect and comprehension of the additional fees.

The accused was tried on a 7-count indictment involving allegations of domestic assault, mischief, and breach of probation against his former partner.

The court applied the W(D) framework to assess credibility, noting inconsistencies in the complainant's evidence but finding her credible regarding two specific assaults (chest bumping and head butting).

The accused was found guilty of two counts of assault and two counts of breach of probation, but acquitted of one count of assault and one count of mischief.

A charge of unlawful confinement was withdrawn.

The plaintiff in a wrongful dismissal action brought a motion to strike two paragraphs of the defendant's statement of defence, arguing they improperly referred to a without prejudice termination offer.

The court dismissed the motion, finding that because the plaintiff pleaded bad faith and claimed punitive damages regarding the defendant's conduct at termination, the defendant was entitled to plead the termination offer to answer those allegations.

The termination offer was deemed relevant and an exception to settlement privilege applied.

On a threshold motion under s. 267.5 of the Insurance Act, the court held that the plaintiff established permanent serious impairment of an important physical, mental or psychological function arising from a rear-end motor vehicle collision.

The evidence supported a finding that a whiplash injury led to permanent debilitating chronic pain requiring regular injections and strong medication, notwithstanding pre-existing pain, anxiety, and depression.

The court also held that the medical report complied in substance with s. 4.3(4) of Regulation 461/96 even though it did not recite the regulation's exact wording.

The plaintiff was therefore entitled to recover non-pecuniary damages subject to the statutory deductible and the jury verdict.

The offender was convicted of aggravated assault after attacking a 'good Samaritan' who intervened in a bar fight to help an unconscious victim.

The offender kicked the victim to the ground and continued to assault him while he was in a fetal position, causing serious injuries including a torn ACL and fractured foot bones.

The Crown sought 18-24 months imprisonment, while the defence sought a non-custodial or intermittent sentence.

The court sentenced the first-time offender to 9 months imprisonment followed by 3 years of probation, balancing denunciation and deterrence with the offender's remorse, ADHD diagnosis, and rehabilitative prospects.

During a first-degree murder trial, the self-represented accused sought to introduce evidence of the deceased's alleged 'high-risk' lifestyle, including his use of gay dating and fetish websites, to suggest an unknown third party committed the murder.

The court dismissed the application, finding that the probative value of the evidence was extremely low and based on conjecture.

The court held that the prejudicial effect substantially outweighed any probative value, as the proposed evidence relied on discredited myths and stereotypes about gay men and would distract the jury from the real issues.

The accused, a 19-year-old first offender, was convicted of break and enter, assault, assault with a weapon, possession of stolen property, and possession of break-in instruments following two incidents in one morning.

He broke into an occupied residential home and later broke into a pickup truck, where he was confronted by the owner and engaged in a physical struggle while brandishing a knife.

The court emphasized individual deterrence and rehabilitation for a youthful first offender but noted the seriousness of breaking into an occupied dwelling.

The accused was sentenced to 8 months' imprisonment and 18 months' probation.

The accused, charged with first-degree murder, brought an application to stay the proceedings due to unreasonable delay under section 11(b) of the Charter.

The total delay exceeded the 30-month ceiling established in Jordan.

However, the court found that the net delay was justified by the complexity of the case, which involved international extradition, voluminous disclosure, and significant defence-caused delays.

Furthermore, applying the transitional exceptional circumstances framework, the court determined that the delay was within the Morin guidelines and dismissed the application.

This was a family law costs decision following a trial involving income determination, child support, spousal support, equalization, and a claim under a Mahr.

The court applied Rule 24 of the Family Law Rules, found divided success but concluded the respondent was the more successful party when the offers to settle, trial positions, and ultimate result were considered.

Allegations of bad faith and unreasonable conduct were rejected.

Costs were fixed at $30,000 inclusive of HST and disbursements, and $160,000 held in the applicant's counsel's trust account was ordered paid to the respondent forthwith against the sums owing under the trial judgment.

The parties engaged in a high-conflict family law trial regarding custody, access, and support for their two young children.

The father sought joint custody and equal parenting time, while the mother sought sole custody.

The court found the father to be deceptive, controlling, and manipulative, noting his failure to provide adequate financial disclosure and his disregard for the children's best interests.

The court awarded sole custody to the mother, established a specific parenting schedule, imputed the father's income at $100,000 for child support purposes, and dismissed the father's claim for spousal support.

The Crown brought an application under s. 653.1 of the Criminal Code to preserve a prior ruling dismissing the accused's s. 11(b) Charter application.

The original judge had recused himself due to a reasonable apprehension of bias arising from his post-decision comments regarding a factual error he made in the ruling.

The court held that s. 653.1 applies purposively to pre-trial rulings even if no formal mistrial was declared.

However, the court found that it was in the interests of justice to allow the accused to relitigate the prejudice aspect of the s. 11(b) application with fresh evidence, while preserving the original judge's findings on the allocation of delay.

The mother appealed a decision dismissing the Children's Aid Society's motion for leave to withdraw its child protection application.

The Society had sought to withdraw the application as there were no ongoing protection concerns and all parties consented.

The motion judge dismissed the request, focusing on parallel domestic custody proceedings.

The Superior Court granted the appeal, finding the motion judge made palpable and overriding errors by failing to consider the uncontradicted evidence of no protection concerns, the consent of the parties, and the reasons for withdrawal.

The motion for leave to withdraw the protection application was granted.

The Commissioner of the OPP applied for certiorari to quash a warrant of committal that ordered an offender to serve an intermittent sentence at the Pikangikum OPP detachment.

The Superior Court of Justice granted the application, finding that the sentencing judge erred in law on the face of the record.

The court held that under the Ministry of Correctional Services Act, sentences of imprisonment must be served in a correctional institution, and under the Criminal Code, intermittent sentences require appropriate accommodation, which a temporary police lock-up facility does not provide.

In a child protection application, the applicant sought to introduce out-of-court statements made by the child to child protection workers and a counsellor for the truth of their contents.

The court conducted a voir dire to determine the threshold reliability of these hearsay statements.

Applying the principled exception to the hearsay rule, the court evaluated the circumstances under which the statements were made, including the child's spontaneity, the absence of leading questions, and the timing of the recordings.

The court found that the majority of the statements met the threshold reliability test and were admissible, with the exception of one response to a directive question.

The accused was tried on a charge of sexual assault arising from allegations by his spouse shortly after she arrived in Canada through immigration sponsorship.

The case turned entirely on credibility and reliability.

Applying the W.(D.) framework, the court found weaknesses in the complainant's evidence, including evasiveness in cross-examination, lack of detail on central events, and the absence of any allegation of sexual assault when privately questioned by a police officer.

Although the accused's evidence contained contradictions that prevented outright acceptance, it nevertheless raised a reasonable doubt in the context of the whole record.

The accused was acquitted.

The moving party municipality brought a motion for an interlocutory injunction to restrain the responding party from dumping large volumes of fill on its property in contravention of a fill control by-law and a stop work order.

The responding party argued its activities fell under a 'landscaping' exception and that the by-law fees were ultra vires.

The court granted the injunction, finding a serious issue to be tried that the massive volume of fill did not constitute landscaping, presuming irreparable harm to the public interest, and concluding the balance of convenience favoured enforcing the democratically enacted by-law.

The defendants (moving parties) sought an interlocutory injunction against the plaintiffs (responding parties) arising from the termination of a distribution agreement.

The court found that the agreement had been terminated with reasonable notice in August 2015.

The court dismissed the motion for an injunction, holding that the moving parties failed to demonstrate irreparable harm, as they delayed over two years in seeking relief and failed to provide a meaningful undertaking as to damages.

The court also found the balance of convenience favoured the responding parties.

The father brought an interim motion for child and spousal support.

The mother opposed the motion and sought to impute income to the father, arguing he was intentionally underemployed as a real estate agent.

The court declined to impute income, finding the father's reduction in income was reasonable given his diagnosis of an anxiety disorder and his efforts to supplement his income.

The court also declined to include the father's past RRSP withdrawals in his income, as the funds were depleted.

The court ordered the mother to pay net child support and interim spousal support based on the parties' actual incomes, and directed her to reinstate the father on her employment health benefit plan.

The applicant sought a determination of the respondent's income for child support and section 7 expenses.

The respondent, a sole shareholder of two corporations, claimed an income of $34,000 while declaring expenses of $86,000.

The court found the respondent's financial disclosure unreliable and that he was underreporting his income by charging personal expenses to his corporations.

Relying on sections 19, 22, and 23 of the Federal Child Support Guidelines, the court imputed the respondent's annual income at $86,000.

The respondent was ordered to pay ongoing child support based on the imputed income and $5,641 in net arrears for child support, section 7 expenses, and erroneously claimed child tax benefits.

The plaintiff successfully defended a motion brought by the defendant to strike portions of his wrongful dismissal claim.

The plaintiff subsequently sought costs of $9,227.45 for the motion.

The defendant argued that no costs should be awarded because the plaintiff had previously abused the process of the Human Rights Tribunal of Ontario by withdrawing a related application at the last minute.

The court agreed with the defendant, finding that the plaintiff's conduct before the tribunal wasted public and private resources.

Exercising its discretion under Rule 57.01 of the Rules of Civil Procedure, the court declined to award costs to the successful plaintiff.