SCJ 2019

The accused, charged with kidnapping, robbery, aggravated assault, forcible confinement, and attempted murder, applied for a review of a detention order.

The reviewing judge applied the deferential standard of review from St-Cloud, finding no error in the Justice of the Peace's admission of a co-accused's statement or the evaluation of the proposed sureties.

The court upheld the detention on both the secondary ground, citing concerns about the accused's stability following a random and inexplicable attack, and the tertiary ground, given the violent nature of the crime, overwhelming evidence, and vulnerability of the victim.

The bail review was dismissed.

The plaintiffs sought court approval for a settlement reached on behalf of minor plaintiffs and for a contingency fee retainer agreement.

The court denied approval of the retainer agreement due to non-compliance with the Solicitors Act and the Contingency Fee Agreements Regulation, citing issues with alternative fee calculation methods and formal deficiencies.

While the gross settlement for minors was deemed reasonable, final approval was withheld pending a compliant retainer agreement or fee-for-service proposal, and evidence regarding the management of minor plaintiffs' settlement funds.

The applicant, Roger Craig Short, charged with first-degree murder, sought to admit evidence from a failed "Project Somerton" undercover police operation (a "Mr. Big" scenario) where he did not confess.

The defence argued the statements were admissible under the Edgar exception, as unique evidence from a failed "Mr. Big" project, or as evidence of consciousness of innocence.

The court dismissed the application, finding the Edgar exception inapplicable due to lack of spontaneity and no undertaking to testify.

The "Mr. Big" argument was rejected as the project was not "unbeatable" and lacked the inducements/threats seen in Hart.

While the court initially considered admitting the evidence to counter Crown's post-offence conduct evidence, the Crown subsequently abandoned significant portions of its post-offence conduct evidence, rendering the Project Somerton evidence lacking sufficient probative value for admission.

The plaintiff claimed adverse possession of a disputed area of land.

The court analyzed the three requirements for adverse possession: actual possession, intention to exclude the owner (animus possidendi), and the true owner being out of possession.

The court found that the plaintiff's predecessor in title, Mr. Malfara, did not meet these requirements as he did not actually use the land and had no intention to exclude the true owner.

Consequently, the plaintiff's claim for adverse possession was dismissed.

The defendants' counterclaim for trespass was granted, awarding $500 in damages, and a permanent injunction was issued against the plaintiff.

Costs were awarded to the defendants.

The applicant, Metropolitan Toronto Condominium Corporation No. 1328, sought full indemnity costs after successfully obtaining an order permitting entry into a condominium unit owned by 2145401 Ontario Inc. and occupied by Paul Starkman.

The respondents opposed, arguing for partial indemnity costs based on usual civil procedure principles.

The court, exercising its discretion under the Courts of Justice Act and Rule 57.01, awarded the applicant partial indemnity costs of $10,000 in fees and $827.06 in disbursements, inclusive of HST, finding that while the applicant was wholly successful, neither party was blameless in the underlying dispute, and the condominium's indemnity provisions did not mandate full indemnity for legal costs.

The plaintiff, Afroza Mary Mir, moved for summary judgment seeking specific performance or damages for the defendant Larry Gordon Brandt's alleged breach of an agreement of purchase and sale for a residential property.

The defendant denied the binding nature of the agreement, citing mistake, undue influence, and non est factum, predicated on his vulnerability due to a brain injury, and alleging his real estate agent (third party Keller Williams Referred Urban Realty) acted without authorization.

The court dismissed the plaintiff's summary judgment motion, finding a genuine issue requiring a trial due to the complex factual and legal issues, particularly the defendant's cognitive health, the agent's authority, and the inescapable overlap between the main action and the derivative third-party claim, which raised concerns about partial summary judgment and the risk of inconsistent findings.

The court also granted the defendant's preliminary motions to strike portions of the plaintiff's affidavit and factum related to settlement privilege and inadmissible opinion evidence/new damages evidence.

The defendants, Ted Slightham and Tatiana Doubovsky, sought to schedule motions under Rule 21.01 to dismiss the action against them, arguing the Fresh as Amended Statement of Claim did not plead a reasonable cause of action or that the plaintiffs lacked legal capacity.

The plaintiffs, Walter Zuppinger and Min Yan, opposed, arguing the motions were untimely and would cause delay.

The court, exercising its gatekeeping function in a case-managed action, determined that granting the defendants' request to advance these motions was proportionate, efficient, and timely given the significant change in the action following a partial settlement.

The court provided detailed case management directions for the scheduling and conduct of the motions, reserving substantive assessment to the motions judge.

The parties separated in 2015 and proceeded to a family law trial to resolve issues of decision-making, parenting time, spousal support, and financial adjustments.

The mother sought sole decision-making and relied on allegations of domestic violence, which the court found to be overstated and not a factor in decision-making.

The court awarded joint decision-making and increased the father's parenting time, though it denied his request for an equal timesharing schedule.

The court imputed an income of $30,000 to the mother and ordered the father to pay mid-range spousal support for a time-limited duration of three further years.

Various financial adjustments to the equalization payment were also ordered.

The plaintiff brought a motion seeking an order to exclude co-defendants from attending each other's examinations for discovery or reviewing their transcripts, arguing it was necessary to prevent the tailoring of evidence, particularly given the anticipated credibility issues.

The court considered factors such as common interests, common counsel, the scope of examinations, and the centrality of credibility.

While acknowledging credibility would be an issue, the court found that the plaintiff failed to demonstrate a real and substantial probability that the discovery process would be compromised.

This was especially true given that two key defendants had already been extensively cross-examined on substantive affidavits without any evidence of tailoring or parroting, and their co-parties had access to these transcripts.

The motion for an exclusion order was dismissed, and the defendants were awarded partial indemnity costs.

The plaintiff successfully defended a summary judgment motion brought by the City of Barrie, which sought to dismiss the claim due to late notice under the Municipal Act.

In this costs endorsement, the court considered the plaintiff's request for partial indemnity costs and the City's submission to reserve costs to the trial judge.

Citing the principle that costs may be reserved when issues raised on the motion remain live, the court found it just to reserve the costs of the motion to the trial judge, as the issue of prejudice to the City from late notice still needed to be determined at trial.

The plaintiff, a receiver and manager of a limited partnership, brought a motion for summary judgment in an action against subscribers to recover alleged debts under "Assumption of Loan and Debt Agreements." The defendants opposed the motion and sought dismissal of the action.

The court found that these agreements were neither guarantees nor indemnities enforceable by the Limited Partnership, but rather primary obligations to the original creditor contingent on the success of the underlying transaction.

Furthermore, the court determined the action was statute-barred, as the limitation period for a claim for contribution and indemnity had expired, having commenced no later than when a Master refused to add the subscribers as defendants in a prior action.

The plaintiff's action was dismissed.

Mirza Baig appealed a Consent and Capacity Board decision upholding his involuntary patient status and incapacity to consent to antipsychotic treatment.

The court examined whether the Board erred in finding the statutory requirements for involuntary status under the Mental Health Act were met and if there was sufficient evidence for incapacity.

The court affirmed that "serious bodily harm" includes psychological harm and found corroborating evidence for the risk of harm to others.

It also upheld the Board's finding of incapacity, noting that the patient's delusional beliefs prevented him from appreciating treatment consequences, despite arguments regarding substance-induced psychosis.

Class counsel moved for an order approving the form and content of the notice of certification and a litigation timetable in a class proceeding concerning former residents of Ontario Training Schools.

The defendant consented to both orders.

The court approved the litigation timetable and the notice of certification, subject to specific modifications regarding the publication list and the development of balanced training materials for independent legal advice providers.

The court emphasized the need for clear, balanced advice on opting out.

The applicant, Mohamed Aden, sought a bail review after being detained following a bail hearing for robbery and gun offences.

The court considered whether a material change in circumstances existed, specifically regarding a modified bail plan with additional sureties (his mother and aunt) that could not be presented at the initial hearing due to interpreter unavailability and a perceived ruling by the Justice of the Peace.

The court found the defence's decision to proceed with a weaker plan initially was legitimate and reasonable, allowing the new evidence.

On review, the court assessed the new bail plan against the secondary and tertiary grounds for detention under the Criminal Code.

It found the strengthened surety plan, involving older and more responsible family members, adequately addressed public safety concerns and maintained confidence in the administration of justice, despite the seriousness of the charges and the reverse onus.

The applicant's release on house arrest bail was granted, though a requested work exception was denied at that stage.

The parties were unable to resolve costs following a motion and cross-motion where the court stayed assessment orders pending the completion of a related negligence action.

The respondent sought full indemnity costs of $41,045.00.

The court determined that because the litigation is ongoing and the assessment is intertwined with the negligence action, the fairest result is for costs to be in the cause.

Costs for the motion and cross-motion were reserved for the trial judge.

The defendant brought a motion for summary judgment to dismiss the plaintiff's product liability action as statute-barred.

The plaintiff had killed his son while experiencing a psychotic episode, which he alleged was caused by the defendant's antidepressant medication.

The court found that while the plaintiff had cognitive awareness of his potential claim earlier, he lacked the psychological capacity to commence the action until his absolute discharge from the Ontario Review Board.

The motion for summary judgment was dismissed.

The parties, parents of three daughters, sought resolution on child support overpayments, special and extraordinary expenses (s. 7 expenses), and summer access.

The court found the applicant's s. 7 expense claims reasonable but accepted the respondent's revised calculation of child support overpayment, resulting in a net amount owed to the respondent.

The respondent's request for increased summer access was denied.

Following the dismissal of the plaintiff's action after a two-week trial, the defendants sought costs on a substantial indemnity basis from the date of their offer to settle.

The plaintiff argued for a significantly lower amount and opposed substantial indemnity.

The court determined that Rule 49.10(2) of the Rules of Civil Procedure, which provides for substantial indemnity costs, applies when a plaintiff obtains a judgment less favourable than an offer, not when their action is dismissed.

Furthermore, the court reiterated that substantial indemnity costs, outside of Rule 49.10, are reserved for cases involving egregious misconduct, which was not present here.

Consequently, the court awarded the defendants costs on a partial indemnity basis in the amount of $150,000, inclusive of disbursements and HST, after making adjustments for an expert fee.

The plaintiff, 688857 Ontario Limited, sought substantial indemnity costs after successfully recovering $58,761 (plus interest, totaling approximately $66,000) in a fidelity insurance claim against Aviva Insurance Company of Canada.

The court determined it was reasonable for the plaintiff to have pursued the action under ordinary procedure, despite the recovery being below the Simplified Procedure threshold, due to the complexity of employee vs. independent contractor issues and bad faith claims.

The court declined substantial indemnity costs, finding no serious misconduct by the defendant, and awarded partial indemnity costs.

The final award was $196,609.08, significantly less than the plaintiff's claim of $240,563, after adjustments for trial inefficiencies, counsel rates, and proportionality.

This case involved a real estate brokerage's claim for a $36,000 commission from property purchasers.

The court found that the brokerage, York National Realty Inc., had repudiated its Buyer Representation Agreement (BRA) with the purchasers by presenting contradictory Confirmation of Cooperation and Representation (CCR) forms that stated it was only providing customer service to the buyers while representing the seller.

Furthermore, the brokerage breached its fiduciary duties by failing to disclose material facts, including the fact that the buyers would be responsible for the commission and the familial relationship between the brokerage owner and the seller, prior to the final Agreement of Purchase and Sale.

The court dismissed the plaintiff's action for commission and awarded costs to the defendants.