SCJ 2019

The plaintiff in a construction lien action brought a motion to compel the defendant to serve an affidavit of documents and attend examinations for discovery before the plaintiff delivered responding materials to the defendant's motion for summary judgment.

The court granted leave to bring the motion but dismissed the request for an affidavit of documents.

The court held that under the amended Rules of Civil Procedure, there is no automatic right to an affidavit of documents without a discovery plan, and requiring one in the face of a summary judgment motion would be disproportionate and contrary to the modern approach to summary judgment.

During a murder trial, the defence sought to qualify a clinical pharmacist as an expert to provide opinion evidence on the effects of cocaine, marijuana, and alcohol on the accused's brain and executive functions.

The Crown opposed the qualification, arguing the proposed evidence strayed into psychiatry and neurology.

Following a Mohan voir dire, the court qualified the witness as an expert in pharmacology to testify on the general effects of the drugs, but strictly limited his evidence, prohibiting opinions on consciousness, automatism, or conclusive statements about the accused's specific cognitive decoupling.

The Applicant sought costs following partial success on a motion to stay the Respondent's motion to change.

The Applicant claimed costs on a full recovery basis, arguing the Respondent acted in bad faith and that she beat her offer to settle.

The court rejected the bad faith argument and found the offer to settle was not as favourable as the order obtained.

The court awarded the Applicant costs on a partial indemnity basis, reduced to reflect her divided success, fixing the amount at $10,000 all-inclusive.

The Crown appealed the acquittal of the respondent on charges of criminal harassment.

The trial judge had found that while the respondent's conduct caused the complainants subjective fear, that fear was not objectively reasonable in the circumstances.

The Crown argued the trial judge applied the wrong legal test by importing a proportionality requirement and misapprehended the evidence.

The Superior Court of Justice dismissed the appeal, finding that the trial judge correctly applied the objective standard from R. v. Sim and that his factual findings regarding the nature of the respondent's emails and the complainants' reactions were supported by the evidence.

The plaintiffs brought a motion to compel answers to follow-up questions posed in a written examination for discovery, following an earlier oral examination and a previous court order regarding refusals.

The underlying action involves an alleged assault in the defendant bank's ATM vestibule.

The court held that the plaintiffs were not entitled to conduct a full written discovery after an oral discovery without leave, but were permitted to ask reasonable follow-up questions arising from undertakings and refusals.

The court applied the principle of proportionality, limiting the scope of questions primarily to the specific branch where the incident occurred, and provided a detailed schedule ruling on each of the 40 disputed questions.

Following a successful motion for child and spousal support where income was imputed to the respondent husband, the applicant wife sought costs.

The court applied the Family Law Rules costs framework, noting the husband's unreasonable delay in disclosure and his failure to make a reasonable settlement offer.

The court awarded the applicant costs of $7,500 against the husband and $500 against the husband's brother, who had intervened unnecessarily.

Following a trial where the plaintiffs obtained a judgment for $30,000 and vacant possession of a property, the court determined costs.

The plaintiffs had made a timely Rule 49 offer to settle that was more favourable to the defendants than the trial outcome.

The court awarded the plaintiffs costs of $34,333.67, representing partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

The plaintiffs sued the defendant cardiac surgeon for failing to obtain informed consent after the plaintiff suffered permanent vision loss following life-saving heart valve surgery.

The defendant moved for summary judgment.

The court held that the presence of a jury notice does not alter the test for summary judgment.

Applying the modified objective test for causation, the court found that even if the remote risk of blindness was a material risk that should have been disclosed, no reasonable person in the plaintiff's position—facing an 80% chance of death within three years without the surgery—would have declined the procedure.

The plaintiff also admitted in cross-examination that he would have consented if presented with the relative risks.

The motion for summary judgment was granted and the action dismissed.

The accused brought a pre-trial severance application seeking to split five sexual offence counts involving two youthful family-member complainants into separate trials.

Applying the severance principles under s. 591(3) of the Criminal Code and the governing framework from Last, the court balanced prejudice to the accused against the public interest in a single, efficient trial.

The court found a significant factual and legal nexus between the counts, including intertwined disclosure evidence and common post-offence conduct, and held that the Crown had a viable foundation for count-to-count similar fact evidence under Handy.

The judge concluded that severance was not required in the interests of justice and dismissed the application.

The defendant, Integral Development LLC, moved to set aside a default judgment of $8.05 million arising from a failed commercial real estate transaction.

The defendant argued it had a plausible excuse for failing to defend the action and an arguable defence on the merits, specifically that a condition in the agreement of purchase and sale was never met.

The court applied the five-factor test for setting aside a default judgment and found that the defendant's excuse was plausible and its defence had an air of reality.

The court exercised its discretion to set aside the default judgment, allowing the defendant to defend the claim on its merits.

The applicant brought a motion for summary judgment in a status review application, seeking extended society care for three children and a supervision order for a fourth.

The respondent father had provided inconsistent evidence regarding whether the children identified as First Nations.

The court adjourned the motion, ordering the parties to provide further evidence clarifying the children's First Nations status and band identification, as this information is mandatory under the Child, Youth and Family Services Act, 2017 before determining the appropriate disposition.

The Crown appealed a conditional discharge imposed on the respondent for a sexual assault committed while highly intoxicated.

The respondent had briefly groped the victim over her clothing at a university banquet.

The Crown argued the trial judge erred in principle by overemphasizing intoxication as a mitigating factor, relying on distinguishable case law, and failing to properly weigh general deterrence and denunciation.

The Summary Conviction Appeal Court dismissed the appeal, finding no errors in principle and concluding that the sentence, while at the low end of the range, was not demonstrably unfit given the high degree of deference owed to sentencing judges.

The defendant brought a motion to impose penalties on the plaintiff for civil contempt regarding a failure to provide access to corporate records.

The plaintiff brought a cross-motion for a declaration that he had purged his contempt.

The court found that the plaintiff had made good faith efforts to comply with the order and had purged his contempt.

The court imposed a fine of $5,000 for the initial contempt and ordered that the previous contempt order be set aside upon payment of the fine.

The parties separated in 2016 and proceeded to trial to resolve child support and equalization of net family property.

The court found the respondent was underreporting his income from his flooring business by doing cash jobs, and imputed his income at $90,000 for child support purposes.

The court calculated child support arrears at $34,428.

For equalization, the court valued the parties' assets and debts, resulting in the applicant owing an equalization payment of $24,833.12 to the respondent.

The claims for divorce were severed to proceed uncontested.

The accused was involved in a lengthy police pursuit while driving stolen vehicles, resulting in collisions with several police cruisers.

He pled guilty to numerous offences including dangerous driving, theft, and break and enter.

For the remaining charges of attempted murder, aggravated assault, and assault with a weapon against the officers, the central issue was intent.

Applying the W.D. framework, the court believed the accused's testimony that he was merely trying to escape and did not intentionally target the officers or their vehicles, resulting in acquittals on the contested charges.

The applicant father sought to vary child support and section 7 expenses under a shared parenting arrangement, arguing that the incomes of both self-employed parties needed to be determined.

The court dismissed the variation application, finding that neither party provided sufficient or reliable financial evidence, such as expert income analyses or property appraisals, to determine their true incomes from their complex corporate real estate holdings.

However, the court granted the applicant's claims for the respondent's unpaid share of section 7 expenses, repayment of RESP funds, transfer of a time share property, and costs for failing to exchange family photographs as required by their prior Minutes of Settlement.

Following convictions for lottery fraud, the Crown sought restitution, forfeiture, and fines in lieu of forfeiture against the accused.

The court ordered restitution of $12.5 million jointly and severally against the two primary offenders, declining to add interest.

The court also ordered forfeiture of approximately $7.5 million in seized funds, after returning specific amounts to innocent third parties.

Finally, the court imposed fines in lieu of forfeiture of $2.3 million each on the two primary offenders, with a six-year term of imprisonment in default of payment.

The applicant sought leave to appeal an arbitral award that ordered it to pay a $55,000 minimum guarantee to the respondent under a film distribution agreement.

The court dismissed the application, finding that the arbitration agreement's 'final and binding' clause precluded appeals on questions of law.

Furthermore, the court held that the proposed grounds of appeal were questions of mixed fact and law, not extricable questions of law.

The respondent's cross-application to enforce the arbitral award was granted.

In a high-conflict family law proceeding, the applicant brought a motion at the court's direction to determine whether the self-represented respondent was a 'special party' under Rule 2 of the Family Law Rules.

The court reviewed the respondent's demeanor, communications, and former counsel's opinion, finding him incapable of understanding the issues or appreciating the consequences of his decisions.

The court declared the respondent a special party and appointed the Public Guardian and Trustee as his legal representative.

The defendants brought motions to dismiss or stay the plaintiff's action and a related application due to the plaintiff's and its principal's failure to pay multiple prior costs awards totaling over $200,000.

The principal, acting as a self-represented litigant, argued that the defendants were partners and thus liable for the costs, and relied on a corporate indemnity.

The court rejected these arguments, applying the Rana principles to find that impecuniosity and self-representation do not excuse non-compliance with court orders.

The court dismissed the action against the moving defendants and stayed the related application, but declined to strike the plaintiff's affidavits under Rule 25.11.