SCJ 2019

The respondent father brought a motion to dismiss the applicant mother's claims for divorce and custody on jurisdictional grounds, and for the return of the children to Dubai.

The mother had fled Dubai with the children, alleging domestic violence, and claimed refugee status in Canada.

The court found it lacked jurisdiction under the Divorce Act because neither party had been ordinarily resident in Ontario for one year prior to the application.

However, the court assumed jurisdiction over custody and access under the Children's Law Reform Act, finding the children were habitually resident in Ontario due to the father's delay and acquiescence, and alternatively, that the children had a real and substantial connection to Ontario.

The plaintiffs in a construction defect action brought a mid-trial motion for leave to file additional and supplemental expert reports.

The plaintiffs sought to introduce a new structural engineering expert to address an allegation of bias raised against their original expert shortly before trial, and to file a supplemental report addressing newly discovered cracks.

The court dismissed the motion, finding that granting leave would cause undue delay and prejudice to the defendants, who would not have sufficient time to obtain responding reports before the trial resumed.

The court also noted that the plaintiffs failed to provide an adequate explanation for the delay in seeking leave.

The moving defendants brought a motion to discharge a certificate of pending litigation (CPL) obtained ex parte by the plaintiffs.

The defendants argued the plaintiffs failed to make full and fair disclosure of material facts as required by Rule 39.01(6).

The court reviewed the record and found that the plaintiffs had complied with their disclosure obligations, noting that the alleged misrepresentations were actually triable issues regarding the interpretation of agreements and personal liability.

The motion to discharge the CPL was dismissed.

The accused, charged with attempted murder following a shooting, brought a pre-trial motion to adduce alternate suspect evidence after the alleged weapon was found in the possession of a third party 11 months later.

The Crown brought motions to admit lay opinion evidence from a car salesman to identify a vehicle in surveillance footage, and to allow the victim to testify via closed-circuit television due to safety fears.

The court granted all three motions, finding an air of reality to the alternate suspect defence, that the car salesman was in a better position than the trier of fact to identify the vehicle, and that CCTV testimony was necessary to obtain a full and candid account from the fearful victim.

The plaintiff law firm brought a motion for an order excluding the public from the trial of its action against the defendant and prohibiting disclosure of information relating to the action.

The plaintiff sought a permanent injunction preventing the defendant from publishing allegedly defamatory statements.

The court dismissed the request for an in camera trial, finding it was not necessary to prevent a serious risk to the proper administration of justice, as the allegations were already in the public domain.

Instead, the court ordered a limited publication ban directed at the defamatory statements and continued an existing sealing order.

The father brought a motion to change support and stay enforcement by the Family Responsibility Office, while the mother brought motions for contempt and to strike the father's pleadings.

The court dismissed the contempt motion due to a lack of particulars regarding the alleged breach of a disclosure order.

The court ordered the father to pay outstanding costs awards on a set schedule, failing which his pleadings would be struck.

On an interim without prejudice basis, the court terminated child support for one child and reduced the father's ongoing child and spousal support obligations based on his current income, conditional upon his payment of the outstanding costs.

A corresponding stay of enforcement was granted.

The defendants in three related actions (a tort action, an OPCF underinsured motorist action, and a solicitor's negligence action) brought motions to consolidate the proceedings or have them heard together, and to dispense with the deemed undertaking rule.

The plaintiff opposed the inclusion of the solicitor's negligence action and the waiver of solicitor-client privilege.

The court ordered that the three actions be tried together or one after the other, subject to the trial judge's discretion.

However, the court held that the plaintiff's waiver of solicitor-client privilege applied only to the solicitor's negligence action and refused to dispense with the deemed undertaking rule for evidence obtained in that action, protecting the plaintiff's privilege in the tort and OPCF actions.

The applicant, charged with possession of oxycodone and hydromorphone for the purpose of trafficking, brought a Rowbotham application for state-funded legal counsel after being denied Legal Aid.

The court found that the applicant failed to provide full and complete disclosure of her financial circumstances, noting substantial unexplained deposits and gambling expenses in her bank records.

Furthermore, the court held that the applicant failed to demonstrate that her right to a fair trial would be compromised without counsel, as the trial judge has a duty to assist a self-represented accused.

The application was dismissed.

The accused was charged with sexual assault and forcible confinement following an incident in a supply room at the complainant's workplace.

Both the complainant and the accused testified, presenting conflicting versions of events.

The court applied the W. (D.) framework to assess credibility.

The court found both witnesses to be unreliable and noted significant inconsistencies in the complainant's testimony regarding the sequence of events and her subsequent behaviour.

Given the frailties in the evidence, the court concluded the Crown failed to prove the charges beyond a reasonable doubt and acquitted the accused.

The defendants brought a motion to strike portions of the plaintiff's statement of claim in an employment dispute over unpaid commissions, and sought to make an interlocutory injunction permanent.

The court also addressed the distribution of materials seized under an Anton Piller order.

The court declined to make the injunction permanent, finding the test was not met and damages would be an adequate remedy.

The court refused to strike the claims for unpaid commissions based on the limitation period, as discoverability was a genuine issue for trial.

However, the court struck the claims for negligent and fraudulent misrepresentation and loss of future income, granting the plaintiff leave to amend.

The accused pleaded guilty to manslaughter after killing and decapitating his father while experiencing a cannabis-induced psychosis.

The court accepted a joint submission for a 5-year sentence, less pre-sentence custody credit, noting the horrific nature of the offence, the breach of trust, and the accused's lack of prior record, early guilty plea, and genuine remorse.

The appellants appealed a Master's decision allowing the respondents to select the appellants' in-house counsel as their representative for examination for discovery.

The in-house counsel also had carriage of the fraud action on behalf of the appellants.

The Superior Court of Justice allowed the appeal, finding that while in-house counsel are not shielded from discovery, requiring counsel of record to attend would be oppressive as it would inevitably prevent him from continuing as counsel, thereby interfering with the appellants' choice of counsel.

The respondents were ordered to select another representative.

The applicant was involved in a motor vehicle collision.

While he was receiving medical attention, a police officer searched his vehicle's glove box without authorization to find insurance documents, discovering cocaine.

The applicant was subsequently arrested, and searches incident to arrest revealed prohibited firearms and marijuana.

The applicant brought a Charter application to exclude the evidence.

The Superior Court of Justice found that the glove box search violated section 8 of the Charter and that the applicant's section 10(a) and (b) rights were breached during his detention.

Applying the Grant framework, the court concluded that the section 8 breach was serious and deliberate, outweighing society's interest in adjudicating the case on its merits.

The application was granted and the evidence was excluded.

The applicant sought to set aside an arbitral tribunal's interim award on jurisdiction under Articles 16 and 34 of the UNCITRAL Model Law.

In support of its application, the applicant filed new expert evidence that was not before the arbitral tribunal.

A previous judge had ruled that the new evidence was admissible as of right.

The hearing judge reconsidered this interlocutory ruling and held that he had the authority to do so.

The court concluded that fresh evidence in an application to set aside an arbitral tribunal's award on jurisdiction under the Model Law may not be introduced as of right.

Instead, a party must obtain leave by satisfying the test for fresh evidence established in R. v. Palmer.

The offender pleaded guilty to multiple counts of failing to comply with probation and a non-communication order by repeatedly contacting his former partner while in custody and on parole.

The court emphasized denunciation and specific deterrence given the offender's history of domestic violence and blatant disregard for court orders.

The offender was sentenced to one day in jail, after receiving 22 months of enhanced credit for pre-sentence custody and lockdown conditions, followed by three years of probation with strict non-contact conditions.

The applicant and respondent brought competing motions for temporary relief in a highly contentious family law proceeding.

The applicant sought exclusive possession of the matrimonial home, a restraining order, custody of the youngest child, child and spousal support, and financial disclosure.

The respondent sought the sale of the matrimonial home and a jointly-owned condominium, access to the home, and disclosure.

The court ordered the matrimonial home to be listed for sale, with the applicant retaining exclusive possession pending the sale and the respondent contributing $2,500 monthly to its expenses.

The court declined to order the sale of the condominium due to a triable issue regarding ownership.

The requests for a restraining order and a formal custody order were dismissed, though the youngest child will remain with the applicant and the Office of the Children's Lawyer was appointed.

The court imputed an annual income of $146,633.32 to the respondent based on a three-year average of his gross income, ordering $1,529 per month in child support, but dismissed the claim for temporary spousal support.

Both parties were ordered to provide further financial disclosure.

The applicant sought a declaration that her estranged father's will was valid, an order appointing her as Estate Trustee, and a finding that the will resulted in a partial intestacy making her the sole heir-at-law.

The will attempted to disinherit the applicant but failed to provide for the residue after the named beneficiaries predeceased the testator.

The court found the will valid, appointed the applicant as Estate Trustee without a bond, and declared her the heir-at-law of the residue due to the partial intestacy.

The applicant brought a support variation application under the Interjurisdictional Support Orders Act seeking retroactive and ongoing child support.

The respondent had failed to provide annual income disclosure as required by a 2004 consent order, despite his income increasing significantly.

The court ordered the respondent to pay $26,390 in retroactive child support arrears, rejecting his arguments that access costs and direct payments to the children should reduce the amount owed.

The court also imputed income to the applicant and ordered her to pay $80 per month for the adult child who had moved to reside with the respondent.

The self-represented plaintiff moved for leave to amend his statement of claim to add several new causes of action and for further documentary production from the defendant bank.

The court denied most of the proposed amendments, finding them to be statute-barred under the Limitations Act, 2002, or untenable based on prior court rulings.

However, the court allowed amendments related to bad faith referencing, intentional interference with economic relations, breach of privacy, and intentional infliction of emotional distress.

The court also ordered the defendant to produce certain documents related to the allowed claims, while denying production of other requested documents.

No costs were awarded due to divided success.

The applicant mother applied under the Interjurisdictional Support Orders Act, 2002 to vary a 2015 Alberta child support order.

The original order imputed the respondent father's income at $65,000, but the applicant later discovered his actual income was higher in subsequent years.

The respondent did not appear or file responding materials.

The court granted the application, varying ongoing support and fixing arrears for both ongoing support and extraordinary expenses retroactively to 2016 based on the respondent's actual income.