SCJ 2019

The applicant sought sole custody, child support, a restraining order, and a declaration of a beneficial interest in the family residence owned by her father-in-law (the third party respondent).

The respondent father did not participate in the trial.

The court granted the applicant sole custody, supervised access for the respondent, a restraining order, and retroactive and prospective child support based on an imputed income.

However, the court dismissed the applicant's trust and proprietary estoppel claims regarding the family residence, finding no credible evidence of financial contribution or a clear promise to transfer title.

The applicant was ordered to vacate the property and pay the third party respondent $13,640 in damages for trespass for unpaid utilities.

The Crown sought to introduce eleven autopsy photographs in a homicide trial where the accused allegedly struck the deceased with a hammer.

The defence contested the admissibility of two photographs that showed the deceased's face alongside the injuries.

The court applied the balancing test for probative value versus prejudicial effect.

Finding that the contested photographs were redundant because other uncontested photographs adequately showed the same injuries without displaying the deceased's face, the court excluded the two photographs to avoid unnecessary emotional impact on the jury.

The plaintiff sought substantial indemnity costs of $15,172.25 following its success on a motion brought by the moving party to stay a finding of contempt.

The moving party argued costs should be reduced because the plaintiff was unsuccessful on its oral motion for a finding of contempt against an individual personally.

The court declined to award substantial indemnity costs due to the failed oral motion, but awarded the plaintiff partial indemnity costs fixed at $11,000.

The applicant mortgagor defaulted on its mortgage and the respondent mortgagee issued a Notice of Sale.

The applicant brought an urgent application seeking to set aside the Notice of Sale, arguing it contained errors regarding the principal amount, property description, and was unsigned, and sought an injunction to stop the pending sale.

The court dismissed the application, finding that under a standard of commercial reasonableness, the alleged errors did not cause prejudice or confusion to the applicant, who was aware of the property and the default.

The court also declined to grant an injunction for an alleged improvident realization, noting it was not ancillary relief and would require a trial.

The plaintiff commenced an action for personal injuries two years and two days after a motor vehicle accident, leading the defendants to plead that the action was statute-barred.

The Hertz defendants brought a motion for summary judgment on the limitation period issue.

The plaintiff's counsel did not file materials or appear at the motion.

The court proceeded with the motion, finding no genuine issue for trial, and granted summary judgment, dismissing the action as statute-barred.

Costs were awarded to the Hertz defendants.

The plaintiffs brought a motion for summary judgment in an action for damages arising from the defendants' failure to close a residential real estate transaction.

The defendants argued the agreement was void due to issues with a power of attorney, misrepresentation of square footage, and failure to provide a survey.

The court found no genuine issue requiring a trial on liability or mitigation of damages.

Summary judgment was granted in favour of the plaintiffs for forfeiture of the deposit and damages for the loss in property value and increased commission fees upon resale.

The defendant estate brought a motion to limit the plaintiff to calling three expert witnesses at the upcoming personal injury trial, arguing there was considerable duplication among the proposed five experts.

The court reviewed the proposed experts and found that the functional ability assessment by one expert duplicated the range of motion testing in the in-home assessment by another.

The court permitted the plaintiff to call four experts (an orthopaedic surgeon, a future care costs evaluator, an in-home assessor, and a vocational evaluator) but excluded the functional ability expert.

The court also raised concerns about the admissibility of proposed psychiatric evidence regarding a defendant's mental capacity under the Mohan framework and requested written submissions before ruling on that issue.

The defendant sought costs after successfully moving to discharge a construction lien that the plaintiff had improperly registered.

The plaintiff had registered the lien out of time and in the name of an individual rather than the contracting corporation.

The court found that while the lien was ill-conceived, the plaintiff's conduct was not reprehensible, scandalous, or outrageous, as the defendant did owe the underlying debt for a wheelchair lift.

The court awarded the defendant partial indemnity costs of $4,500, payable only upon the defendant satisfying the $36,537.50 consent judgment owed to the plaintiff.

The applicant condominium corporation sought an order permitting it to enter the respondents' unit to inspect a staircase following noise and vibration complaints from the unit below.

The respondents refused entry, issued a trespass notice, and argued the request was unreasonable, made in bad faith, and statute-barred.

The court granted the application, finding the corporation had a statutory right and duty to inspect the unit upon reasonable notice, the application was not statute-barred, and prior mediation/arbitration was not required for disputes enforcing the Condominium Act.

The defendant brought a motion for security for costs against the plaintiff, arguing the plaintiff had insufficient assets in Ontario and evinced financial instability.

The plaintiff opposed, relying on its cash and cash equivalents.

The court found good reason to believe the plaintiff had insufficient assets, considering its acknowledged financial instability, lack of commercial activity, an outstanding judgment, and a pending breach of contract claim.

The motion was granted, and the plaintiff was ordered to post $50,000.00 as security for costs and pay $5,000.00 in costs for the motion.

During a murder trial, the Crown sought to admit statements made by the deceased victim to a police officer shortly after he was shot.

The victim provided a description of the shooter while pleading for his life.

The court ruled that the statements were not admissible as dying declarations because the victim did not have a settled expectation of death.

However, the court admitted the statements under the common law exception for spontaneous declarations, finding that the victim's mind was dominated by the shock of the shooting.

Alternatively, the court held the statements were admissible under the principled approach to hearsay due to sufficient circumstantial guarantees of trustworthiness.

The defendants brought a motion to strike the plaintiff's claims for conspiracy to injure and intentional interference with economic relations.

The plaintiff, former CEO of a company in receivership, alleged the defendants conspired to breach contracts to harm him personally.

The court struck the conspiracy claim because it failed to explain how the corporate defendant would agree to act against its own interests.

The court also struck the intentional interference claim because a prior release agreement meant the third-party company had no actionable civil wrong against the defendants.

Both claims were struck with leave to amend.

The parties separated after a high-conflict relationship.

Following separation, the children's relationship with the applicant father deteriorated until they refused to see him.

The father sought sole custody and reunification therapy, alleging the respondent mother intentionally alienated the children.

The mother sought sole custody and an order leaving access to the children's discretion.

The court dismissed both primary claims, finding no intentional alienation but concluding it was not in the children's best interests to abandon the relationship with their father.

The court ordered disengaged parallel parenting, maintained the children's primary residence with the mother, and implemented a step-up access schedule for the father along with mandatory parental counselling.

The Crown brought a pre-trial application to determine the admissibility of rebuttal evidence in response to the defence's allegations of inadequate police investigation in a murder trial.

The court provided general guidelines, ruling that the reviewing officer could not give opinion or hearsay evidence about the original investigation, but could testify about his own investigative steps.

The court also made specific rulings on several areas of challenge, deferring a decision on the admissibility of the accused's bad character evidence regarding firearms until later in the trial.

The defendant university brought a motion to strike the plaintiff medical student's statement of claim, arguing that the dispute concerned an internal academic decision regarding professionalism and should be pursued via judicial review rather than a civil action.

The plaintiff alleged that the university breached a settlement agreement regarding his remediation program by subsequently requiring a comprehensive psychiatric assessment.

The court dismissed the motion to strike, finding it was not plain and obvious that the dispute was purely academic, as the allegations could support a claim for breach of contract regarding the implementation of the academic decision.

The debtor company filed a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act.

Three days later, a fuel supplier processed a pre-authorized debit for pre-NOI arrears.

The debtor sought the return of the funds, arguing the payment violated the stay of proceedings under s. 69(1)(a) of the BIA.

The court held that processing the pre-authorized debit constituted a 'remedy' captured by the stay, as it gave the supplier an advantage over other creditors.

The supplier was ordered to return the funds, less a set-off for fuel supplied post-NOI.

The plaintiff brought a motion for summary judgment seeking damages after the defendant failed to close on an agreement of purchase and sale for a residential property.

The defendant had requested multiple extensions and a price reduction but ultimately failed to obtain financing.

The plaintiff subsequently sold the property to another buyer for a lower price.

The court granted summary judgment, finding a clear breach of contract, and awarded the plaintiff $79,014.94 in damages for the difference in sale price and carrying costs, though it declined to award damages related to the plaintiff's mortgage defaults.

Lexfund Inc. brought a motion seeking to extend a timetable for several actions, extend time to elect to proceed with counterclaims, and to proceed against the estate of Lucio Anthony Ferro.

These actions, primarily debt collection for litigation funding loans, had been administratively dismissed for delay.

The court considered Lexfund's explanations for delay, the lack of prejudice to the defendants regarding the principal debt, and the principles of justice and proportionality.

While acknowledging Lexfund's counsel's "sloppy practice," the court found no deliberate intention to abandon the files and that the litigation should proceed on its merits.

The court granted the extensions and permission to proceed against the estate, but imposed conditions to mitigate prejudice to the individual defendants regarding interest, setting a simple interest rate of 5% per annum and limiting the period for which interest could be charged.

The defendants moved for summary judgment to dismiss the plaintiff's claims for breach of an independent contractor agreement and interference with business opportunities.

Alternatively, the defendants sought an order holding themselves liable but assessing damages based on the motion record.

The court dismissed the motion, finding genuine issues requiring a trial regarding whether the termination of the agreement was justified.

The court also rejected the defendants' alternative request, noting that Rule 20.01(3) does not contemplate a defendant moving for summary judgment in favour of the plaintiff to assess damages, and that partial summary judgment was inappropriate as the issues could not be readily bifurcated.

The applicant, facing charges related to a serious motor vehicle collision, brought a pre-trial Charter application alleging his s. 8 rights were violated when a police officer smelled his breath while he was receiving medical treatment in a hospital.

He sought to excise this observation and his admission of 'drinking' from the Information to Obtain (ITO) the search warrant for his blood samples, and to exclude the blood evidence under s. 24(2).

The court dismissed the application, finding no s. 8 breach occurred in the hospital setting.

Furthermore, the court held that even if the impugned evidence were excised, the remaining facts in the ITO—including excessive speed, the nature of the collision, and the presence of intoxicants at the scene—provided ample grounds to issue the warrant.