SCJ 2019

This voir dire decision addresses the admissibility of statements and breath test results in a criminal trial for impaired driving causing bodily harm.

The accused, Yunlong Li, challenged the voluntariness of his statements and alleged violations of his Charter rights under sections 8 (unreasonable search or seizure) and 10 (right to counsel).

The court found that Li's statements were voluntary and that police had reasonable grounds for the breath demand, thus no s. 8 violation occurred.

Furthermore, the court determined there was no s. 10 Charter violation, as Li understood his right to counsel and exercised it, including speaking with a Mandarin-speaking duty counsel.

The court concluded that no special circumstances required an interpreter beyond what was provided, and any delays were reasonable.

Consequently, all challenged evidence was admitted.

The defendants in multiple related actions brought motions for summary judgment against the Pichelli plaintiffs, who were investors in a real estate development project.

The plaintiffs alleged that the developers (the Vuletics), a title holder (Kegalj), and the developers' lawyers (the Adairs) engaged in fraudulent and improper conduct.

The court granted summary judgment dismissing the claims against the Adair defendants, finding that the lawyers owed no duty of care to the non-client investors.

The court also granted summary judgment dismissing the claims against Kegalj, finding no relationship or duty owed to the plaintiffs.

However, the court dismissed the Vuletics' motion for summary judgment, finding that genuine issues of credibility and conflicting versions of the lot purchase agreements required a trial.

Plaintiffs' counsel brought a motion seeking court approval of their contingency fee retainer agreement, class counsel fees, disbursements, and an honorarium for the representative plaintiff, Soheil Kafai, following a class action settlement.

The court considered factors for reasonableness of fees, including complexity, risk, responsibility, monetary value, importance to the class, skill, results, and opportunity cost.

The court approved the retainer agreement, fees, disbursements, and a $1,000 honorarium for the representative plaintiff, finding them fair and reasonable.

Lexfund Inc. brought a motion for a limited Mareva injunction to protect funds held in court in an action involving Future Health Inc. and its trustee in bankruptcy, preventing their disbursement without notice to Lexfund.

Lexfund, a creditor of the deceased solicitor Lou Ferro (whose practice was intertwined with Future Health), alleged fraud and conspiracy regarding loans made to Ferro.

The court found a strong prima facie case of fraud and an inferred risk of asset dissipation.

The court granted a modified injunction, ordering $50,000 of the approximately $125,000 in court to be paid to Ellen Helden, with the balance remaining in court pending further order and notice to Lexfund.

The judge also appointed himself case management judge for related Lexfund actions.

This case involved a bifurcated, high-conflict six-day trial concerning the custody and access of three children.

The applicant mother and respondent father each claimed custody, with the children having resided with the mother since separation in 2012.

The primary dispute revolved around the re-establishment of the children's relationship with the father, with the mother proposing preconditions for reunification therapy (e.g., father undertaking anger management) and the father advocating for unconditional reunification therapy, aligning with the Office of the Children's Lawyer.

The court ordered reunification therapy for the two younger children, rejecting the mother's preconditions and establishing a detailed framework for the therapy process, including therapist selection, shared payment, and the therapist's authority over access timelines.

The children were to continue residing with the mother, and no immediate access order was made, pending the therapist's recommendations.

Farzana Qureshi was convicted by a jury of drug and firearms-related offences, and pleaded guilty to three drug charges.

The court considered aggravating factors, including a significant criminal record and breach of prohibition orders, alongside extraordinary mitigating factors, particularly the offender's significant rehabilitation efforts since her arrest.

The Crown sought a five-year global sentence, while the defence sought time served (approximately 30 months).

The court imposed a penitentiary sentence of 30 months, but, in light of extensive pre-trial custody and house arrest credit, issued a suspended sentence of time served plus two years of probation, emphasizing the unique and compelling evidence of rehabilitation.

The parties, who separated in 2012, proceeded to trial on the issues of regular child support and special and extraordinary child expenses for their three children.

The court determined the respondent's income for support purposes from 2012 to 2021 and beyond, adjusting for changes in employment and self-employment income, including inflated business expenses.

The court also determined the applicant's income.

Based on these income determinations, the respondent was ordered to pay retroactive and ongoing table child support and a proportionate share of special and extraordinary expenses, along with maintaining health and dental benefits for the children and providing annual income disclosure.

The plaintiffs sought court approval for a class action settlement and allocation plan concerning a Hepatitis A contamination recall of frozen fruit.

The court approved the $3,000,000 settlement, finding it fair, reasonable, and in the best interests of the class, considering the arm's length negotiations, lack of significant objections, and risks of continued litigation.

The plan allocated funds across four categories: purchasers, immunized members, bodily injury members, and family members/health insurers.

The Attorney General for Ontario (AGO) brought a motion to strike the plaintiff's Amended Statement of Claim, which sought $4.5 million in damages.

The plaintiff's action alleged wrongful non-disclosure, abuse of process, malicious prosecution, misfeasance in public office, false imprisonment, and various Charter breaches against the AGO, arising from his arrest, conviction, and subsequent appeal and acquittal for firearms-related offences.

The court granted the AGO's motion, striking all claims against the AGO without leave to amend.

The court found that the plaintiff's allegations confused legal conclusions (e.g., the unlawfulness of a search, determined on appeal) with facts that the Crown should have disclosed or known at the time of trial.

It also determined that the plaintiff failed to plead the necessary elements for the asserted torts, such as malice or improper purpose, and that the Crown's role includes advancing legal theories, even if ultimately unsuccessful.

The offender was convicted of four counts of trafficking crack cocaine and four counts of possession of property obtained by crime after selling to an undercover officer.

The Crown sought 18 months custody, while the defence sought one year.

The court weighed the offender's prior related record and profit motive against mitigating factors including stringent bail conditions and an arbitrary arrest.

The court imposed a sentence of 14 months incarceration, followed by three years of probation, with 189 days of pre-sentence credit.

The respondent, Todd Miller, brought an application to rescind child support arrears totaling $22,892.37, citing current incapacity due to medical conditions and receipt of ODSP.

The applicant, Julia Long, opposed the rescission.

The court, applying established legal principles, determined that a present inability to pay does not automatically justify rescission without assessing the applicant's future capacity to pay.

Finding no evidence that the respondent would permanently be unable to pay the arrears, the court dismissed the application for rescission.

Instead, it suspended payments and interest on the arrears, allowing the applicant to seek reinstatement if the respondent's financial circumstances improve.

The respondent was ordered to continue annual income tax statement disclosure.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action, claiming constructive dismissal due to a temporary layoff after 23 years of employment.

The court found that the temporary layoff constituted constructive dismissal as there was no contractual right for the employer to implement such a layoff.

However, the court also found that the plaintiff failed to mitigate his damages by refusing a bona fide recall offer from the employer, which included assurances of no reprisals and substantially similar terms of employment.

The plaintiff's subjective belief of embarrassment or degradation was not objectively supported.

Consequently, the plaintiff's damages were limited to the period between the layoff and the recall offer.

The plaintiff consultant brought a motion to enforce a contractual indemnification provision for the advance payment of legal fees by the defendant companies.

The motion was brought before the close of pleadings.

The court found that the corporate indemnity provisions of the CBCA and OBCA did not apply because the consultant was a corporation, not an individual officer or director.

However, the court dismissed the motion, concluding that the relief sought effectively amounted to a partial summary judgment or a mandatory injunction, and the plaintiff had not complied with the requirements for either.

The defendant, Diego Alcaraz, was charged with aggravated assault and assault with a weapon after stabbing his boyfriend, David Valencia, during a domestic dispute.

The central issue at trial was whether Alcaraz acted in self-defence.

The court considered the conflicting testimonies of Alcaraz and Valencia, Alcaraz's immediate 911 calls, and a toxicology report for Valencia.

The court found Alcaraz's account of Valencia's escalating jealousy and physical aggression more plausible, supported by Valencia's own admissions and the consistency of Alcaraz's statements with the physical evidence.

Ultimately, the Crown failed to prove beyond a reasonable doubt that Alcaraz did not have reasonable grounds to believe force was being used against him or that he did not stab Valencia for self-protection.

Alcaraz was acquitted of both charges.

The defendants brought a motion for security for costs against the plaintiff, a real estate brokerage, which admitted having insufficient assets in Ontario to cover a potential costs award, though its shareholders were not impecunious.

The court, applying a holistic approach under Rule 56.01(1) of the Rules of Civil Procedure, determined that it was just to order security for costs.

The plaintiff's claim was found to be arguable but not demonstrated to have a good chance of success on the merits.

The court granted the motion, ordering the plaintiff to post $60,000 for one group of defendants and $45,000 for another, covering the pleading and discovery stages, and awarded motion costs to the successful defendants.

Nisco National Leasing, a division of HVL Ltd. ("Nisco"), brought a motion for summary judgment to dismiss claims against it by Mark Pittuck and other plaintiffs.

Pittuck was injured while operating a leased tow truck, alleging Nisco's negligence for failing to remove a dangerous "side puller" or provide maintenance instructions.

The court found that the commercial lease agreement explicitly placed responsibility for inspection, acceptance, and maintenance of the tow truck solely on Pittuck, and Nisco was not a dealer or manufacturer.

The court determined that the Sale of Goods Act did not apply to the commercial lease, and the contractual terms limited Nisco's duty of care, taking precedence over any potential tort claim.

Nisco's motion for summary judgment was granted, dismissing the claims.

The defendants brought a motion to transfer the action from Barrie (Central East Region) to the Toronto Region, which the plaintiff opposed.

The action involved shareholder oppression, real estate interests, and share valuation.

Applying Rule 13.1.02 of the Rules of Civil Procedure, the court found that a substantial part of the events and the subject matter (properties) were located in Toronto.

The plaintiff resided in York region, while the personal and corporate defendants resided/had their head office in Toronto.

The court determined that Toronto was a "substantially better" venue, satisfying the defendants' onus to demonstrate that a transfer was desirable in the interests of justice.

The motion to transfer was granted, and costs were reserved to the trial judge.

The court addressed costs and interest following a prior judgment on share valuation.

Due to mixed results and the inherent unpredictability of share valuation, the court ordered each party to bear their own costs, including expert fees.

On the issue of interest, the court determined that the discretion to award interest to dissenting shareholders under the Ontario Business Corporations Act (OBCA) was not curtailed by the corporation's ability to pay.

Prejudgment interest was awarded at the prescribed rate of 0.8% from the date of the statutory offer (May 11, 2017) to the date of the judgment, with postjudgment interest thereafter, on the determined share values for the dissenting shareholders.

The defendant, Robert Gates, brought a motion for summary judgment to dismiss the action brought by the plaintiff, Melanie Gates, on the grounds that it was commenced after the expiration of the two-year limitation period under the Limitations Act, 2002.

The court found that there was a genuine issue requiring a trial regarding the discoverability of the claim, specifically when Melanie Gates knew or ought to have known that Robert Gates was a potential party at fault.

The motion for summary judgment was dismissed, and the limitation defence was left for adjudication at trial.

The plaintiff, Bradley Clayton Hunt, moved for a declaration that he was an "insured person" under the Insurance Act and that the defendant, Peel Mutual Insurance Company, was obligated to defend and indemnify him.

This arose from a motor vehicle collision where Hunt and his daughter were passengers.

Hunt's daughter subsequently sued him, alleging negligent parenting.

The defendant insurer denied coverage, arguing that the allegations of negligence against Hunt did not involve the "use or operation" of the vehicle as required by section 239 of the Insurance Act.

The court dismissed the plaintiff's motion, finding that there was no direct or proximate causal relationship between Hunt's alleged negligent acts (negligent parenting) and the use or operation of the vehicle, thus not triggering the duty to defend.