SCJ 2018

This endorsement addresses a motion brought by the applicant, Delia Joan Berta, seeking to compel further financial disclosure from the respondent, Raymond Louis Berta, in the context of his motion to change a final spousal support order.

The court ordered the respondent to produce various financial documents, including bank statements, credit card statements, line of credit statements, loan applications and rejection notices, corporate minute books for specific entities, and proof of car loan payoff.

However, the court declined to order further disclosure related to the respondent's expert witness, finding no reasonable grounds to suspect interference with the expert's independence, as per the test in Moore v. Getahun.

The motion was allowed in part, with no costs ordered due to divided success.

The defendants brought a motion seeking to strike the plaintiff's claim against an individual defendant (Sam Mizrahi) for breach of contract and unjust enrichment, an order requiring the plaintiff and its employee to undertake not to interfere with the defendants' economic relations, and security for costs.

The court granted the motion to strike the claim against the individual defendant without leave to amend, finding no reasonable cause of action and that it was frivolous/vexatious.

The motion for injunctive relief was dismissed as there was no underlying cause of action.

Security for costs was granted in the amount of $200,000, payable in installments.

The plaintiff sought to compel the President and CEO of Caesars Entertainment Windsor Limited (CEWL) to appear as a discovery witness in an action for recovery of gambling losses.

The plaintiff alleged negligence by the casino in allowing him to gamble while intoxicated and as a known problem gambler.

The court applied principles for corporate discovery representatives, finding that the CEO lacked sufficient direct involvement with the events, and compelling his attendance would be oppressive for a non-landmark case.

The motion was dismissed, and no costs were awarded due to counsel's conduct regarding the motion's venue.

Brar Corp. (Applicant) sought a declaration of an easement over Regina Properties Ltd.'s (Respondent) adjoining property, an order to amend legal descriptions, an injunction, and damages.

Regina Properties Ltd. (Cross-Applicant) sought to vacate a registered notice of interest and an injunction against parking.

The court found that Regina Properties Ltd. had granted a license for access, not an easement, and dismissed Brar Corp.'s application.

The court granted Regina Properties Ltd.'s request to vacate the notice but dismissed its request for an injunction against parking, finding the trespass claim unsuitable for an application.

The plaintiff brought a motion to compel the defendant to answer certain questions refused during examination for discovery, primarily concerning solicitor-client privilege.

The core issue was whether the defendant had waived privilege by pleading a lack of awareness or understanding regarding a real estate waiver he signed, thereby putting the legal advice he did or did not receive into issue.

The court found that the defendant had impliedly waived privilege by making his knowledge and understanding of the waiver a material element of his defence.

Consequently, the defendant was ordered to answer one specific question related to legal advice received *before* signing the waiver and to request relevant cell phone records for a limited period.

The motion was dismissed for other questions deemed unrelated to the specific period of implied waiver.

The applicants in two related applications concerning the governance of a religious organization brought motions to disqualify the respondents' lawyer of record.

The applicants alleged that the lawyer was unfit to practice law, was a potential material witness, and had personal and client conflicts of interest.

The court dismissed the motions, finding no merit to any of the grounds for disqualification.

The court held that the lawyer's fitness to practice was not in issue, he was not a material witness, and he had no disqualifying conflicts of interest.

The court awarded substantial indemnity costs to the respondents, noting that the applicants' lawyers had overreacted and made unfounded allegations.

The City of Kenora brought an application for a closure order and injunctive relief against the owners of an illegal boarding house that had become a public nuisance due to extensive criminal activity, fire hazards, and property standards violations.

The owners did not oppose the application, but an intervening legal clinic argued that the Residential Tenancies Act (RTA) gave the Landlord and Tenant Board exclusive jurisdiction to terminate tenancies, thereby ousting the court's jurisdiction to issue a closure order.

The Superior Court held that the RTA regulates landlord-tenant relationships, whereas the Municipal Act empowers the municipality to protect the broader public interest.

The court concluded that a closure order under the Municipal Act is not a termination order under the RTA, and granted the closure order effective April 1, 2019.

This endorsement addresses costs following a mini-trial where Premier Drycleaners' claim for rectification was dismissed.

Burnford Realty Limited, the successful party on the rectification issue, sought substantial indemnity costs.

Premier sought costs payable in the cause, arguing Burnford's late clarification of its position on a 2007 document prolonged the mini-trial.

The court found that Burnford's conduct in delaying an admission fell under Rule 57.01(1)(g).

However, Premier also contributed to the mini-trial's duration by introducing an issue outside its scope, falling under Rule 57.01(1)(e).

Considering the conduct of both parties, the court ordered that there would be no costs payable for the mini-trial.

The Applicants sought multiple mandatory and permanent injunctions against the Respondents concerning alleged encroachments (deck, fence, underground posts) on a common right-of-way and restrictive covenant.

The court first appointed a litigation guardian for one respondent suffering from dementia.

The court dismissed the application for injunctive relief, finding insufficient evidence of substantial interference with the right-of-way's purpose as a common walkway.

Furthermore, the court noted the Applicants did not come with clean hands, having previously restricted the right-of-way themselves and adopting a retaliatory approach.

The father brought a motion for a temporary order to return their child, Owen, to his habitual residence in Barrie, alleging the mother's unilateral move to Guelph constituted unlawful self-help.

The mother brought a cross-motion for a temporary order that Owen reside primarily with her in Guelph.

The court found the mother's self-help justified due to unique circumstances, including financial constraints and an untenable living situation with the father's parents.

Considering the child's best interests under the Children's Law Reform Act, the court favored the mother's parenting plan due to its sustainability and her primary caregiver role.

The father's motion was dismissed, and the mother's motion was granted, establishing primary residence in Guelph, a specific access schedule for the father, child support, and a referral to the Office of the Children's Lawyer.

Costs were not awarded, as the father's motion was deemed reasonable.

The accused was charged with historical sexual assault, sexual exploitation, and uttering threats against his niece, relating to an alleged incident in 1992 when she was 16.

The trial centered on the credibility and reliability of the complainant's memory after 26 years.

Although the trial judge rejected the accused's evidence, the judge found the complainant's evidence lacked the necessary reliability and accuracy to meet the criminal standard of proof.

The accused was acquitted on all charges.

The defendants moved to discharge a construction lien and vacate the certificate of action registered by the plaintiff, Brock Contracting, arguing that the plaintiff corporation did not contract with them or supply services, and thus lacked lien rights.

The plaintiff cross-moved to amend its statement of claim to reflect its full corporate name and add Liza Zollner as a plaintiff.

The court found that lien rights must be assigned in writing under s. 73 of the Construction Act and that the corporation, being a separate legal entity, did not possess the original lien rights.

The court also determined that the error was not a minor irregularity curable under s. 6 of the Act, as it involved the wrong entity registering the lien, not merely a misnomer.

The defendants' motion to discharge the lien was granted, while the plaintiff's cross-motion to amend the statement of claim was granted by consent.

An applicant sought a determination of rights under an employment agreement, alleging that a termination for cause provision violated the Employment Standards Act, 2000 (ESA), rendering the entire early termination clause void and entitling him to common law notice for the unexpired term of a fixed-term contract.

The court found that a valid employment contract was concluded.

While the "termination for cause" provision did not comply with the ESA due to a lower "just cause" standard compared to the ESA's "wilful misconduct," the court held that this specific clause was severable from the rest of the early termination provisions.

The "termination without cause" provision, which was ESA-compliant, remained valid and governed the early termination.

As the applicant never commenced employment and did not work for more than three months, he was not entitled to any notice, pay in lieu of notice, benefits, or severance pay under the ESA.

The court also noted that the employer's actions could be understood as negligent misrepresentation, but this was coincidental to the ESA violation.

The plaintiff, Craig Johnston, Chief Building Official for the Municipality of Arran-Elderslie, was summarily dismissed for alleged conflict of interest and deceit.

The Municipality claimed just cause based on Johnston designing and inspecting projects within the Municipality and allegedly concealing these conflicts.

The court found that Johnston was indeed in a conflict of interest but that the Municipality was estopped from relying on it due to its prior knowledge and approval of his private design work and its failure to appoint a backup inspector.

The court also found no evidence of deceit or fraud on Johnston's part.

The dismissal was deemed wrongful, and the court awarded damages for breach of contract, aggravated damages for the bad faith manner of dismissal, and punitive damages for the high-handed conduct of the Municipality.

The defendants brought a motion seeking a declaration that the plaintiff's construction lien had expired before registration and an order for its discharge.

The defendants argued the contract was abandoned on July 27, 2016, more than 45 days before the lien was registered on September 23, 2016.

The court reviewed the correspondence between the parties and found insufficient evidence to conclude the contract was unequivocally terminated or abandoned on that date.

The motion was dismissed as the defendants failed to prove there was no genuine issue for trial regarding the date of abandonment.

The applicant mother sought the return of her child to her primary care after the child was placed with the respondent father following the mother's temporary psychiatric episodes.

The father opposed, seeking to maintain primary care.

The court, applying the best interests of the child principle under the Children’s Law Reform Act, found that the mother's episodes were temporary and appropriately addressed.

The court emphasized returning to the pre-existing status quo where the mother was the primary caregiver, as the urgent situation had passed and the mother could safely resume care.

The father's attempt to change custody was deemed opportunistic.

The court ordered the child's return to the mother's primary care with a clarified parenting schedule and ordered both parties to cooperate with Family Connexions.

The respondent husband moved for an order to have his Canadian passport and other travel documents returned, or alternatively, for a declaration that he had complied with a previous support order by serving 90 days incarceration for non-payment.

The court found the husband's financial evidence to be riddled with inconsistencies and not credible, noting a significant discrepancy between his representations to a lending institution in 2014 and his current financial statements to the court.

The court dismissed the husband's motion, concluding that his true objective was to retrieve his passport and flee the jurisdiction, which would irreparably prejudice the applicant wife's support and equalization rights.

The plaintiff, Pryers Construction Ltd., sought to enforce a construction lien for $34,601.66 against MVMB Holdings Inc., Scott Birnie, and Riverside Ford Sales Limited for renovation work.

Key issues included the applicability of the old Construction Lien Act versus the new Construction Act, the addition of Riverside as a party despite the Limitations Act, and the personal liability of Scott Birnie.

The court found the old Construction Lien Act applied, allowed the addition of Riverside as a party under the doctrine of special circumstances, and determined that both corporate defendants were "owners" under the Act.

However, the court declined to pierce the corporate veil to hold Scott Birnie personally liable.

Judgment was granted in favour of the plaintiff against the corporate defendants for the claimed amount.

The respondent, Mr. McMurter, brought a motion for the recusal of the trial judge, alleging a reasonable apprehension of bias based on adverse credibility findings made in the original trial judgment.

The applicant, Mrs. McMurter, brought a cross-motion to dismiss the recusal motion.

Concurrently, both parties brought motions concerning the security ordered over four properties for future spousal support payments.

The court dismissed Mr. McMurter's recusal motion, finding no reasonable apprehension of bias, and allowed Mrs. McMurter's cross-motion.

The court also dismissed Mrs. McMurter's motion to prevent the sale of a property and for the transfer of all secured properties, as well as Mr. McMurter's motion for the removal of security, thereby maintaining the existing security arrangements.

Costs were reserved.