SCJ 2019

The 93-year-old applicant is pursuing financial claims against his deceased wife's estate.

The court expressed serious concerns regarding the lack of priority and cumulative delays in the proceedings, including the applicant's counsel unilaterally scheduling a settlement conference before the file was ready, and the respondent estate commencing a separate action in another branch of the court.

The matter was adjourned to be spoken to, with the court directing counsel to outline practical steps to expedite the resolution of the case.

The appellant appealed his convictions for sexual interference and breach of probation.

The appeal was based on two grounds: that the trial judge misapprehended evidence regarding the complainant's clothing, and that the trial judge made an unsupported inference about the appellant's behaviour regarding washing bedding.

The Superior Court of Justice found that the trial judge made palpable and overriding errors on both grounds, which were central to the credibility assessments of the complainant and the appellant.

The appeal was allowed, the convictions were set aside, and a new trial was ordered.

In a family law proceeding, the respondent sought to strike the applicant's pleadings for his repeated failure to comply with court orders regarding financial disclosure and the payment of costs.

The court reviewed the applicant's history of non-compliance, noting multiple warnings and breaches of previous orders.

Applying the three-pronged test for striking pleadings, the court found that the applicant's wilful disregard of his fundamental disclosure obligations constituted a triggering event.

Concluding that no other remedy would suffice, the court struck the applicant's pleadings pursuant to Rule 1(8)(c) of the Family Law Rules and ordered the matter to proceed to an uncontested trial.

The offender pleaded guilty to two counts of dangerous operation of a motor vehicle causing bodily harm and one count of simple assault.

After crashing his vehicle into a gate at high speed, injuring two passengers, the offender panicked, moved a passenger with a broken back against his wishes, and attempted to hide from a passing motorist.

The court weighed the serious aggravating factors of his post-accident conduct against his youthful first-offender status, strong community support, and positive pre-sentence report.

The court imposed a suspended sentence with two years of probation and a two-year driving prohibition.

Following a three-week trial where the plaintiff's action for negligent misrepresentation, negligence, and defamation was dismissed, the successful defendants sought costs of over $523,000.

The defendants relied on an offer to settle for $100,000.

The court found that the defendants' fees were disproportionate and that the federal government had failed to meet its document production obligations, which unnecessarily lengthened the trial.

Balancing the defendants' success and offer to settle against their improper conduct regarding document disclosure, the court fixed costs at $100,000 all-inclusive.

The moving parties, a company and its CEO, commenced a private prosecution against a court-appointed receiver under the Environmental Protection Act, alleging the receiver stored excess organic waste.

The receiver brought a motion to stay the prosecution, arguing the moving parties failed to obtain leave of the court as required by the receivership order and that the prosecution was an abuse of process.

The Superior Court of Justice held that a private prosecution is a 'proceeding' requiring leave under the receivership order.

The court refused to grant leave and stayed the prosecution, finding it was an abuse of process because the moving parties were attempting to relitigate the exact same allegations that had previously been dismissed by the Superior Court and the Court of Appeal in a prior motion for leave to sue the receiver.

Following a trial where the plaintiff contractor failed to prove entitlement to a construction lien and the defendant owners obtained a nominal judgment of $738.20 on their set-off defence, both parties sought costs.

The court noted divided success, as the plaintiff successfully established the owners breached the contract, but the owners successfully defeated the lien claim.

Given the divided success and the expiration of the owners' settlement offers prior to trial, the court ordered that each party bear their own costs.

The applicant sought exclusion of drugs and currency seized following his arrest for breaching bail and drug trafficking offences, alleging breaches of sections 7, 8, 9, 10(b), and 24(2) of the Charter.

The court held the police had reasonable and probable grounds to arrest for bail non-compliance, and that the subsequent search of the person and vehicle was lawful, including as a search incident to arrest.

The court further held that the delay in access to counsel was reasonable in the circumstances, but found a breach where police elicited statements without cautioning the detainee about the right to silence before counsel access.

Applying the Grant framework, the court concluded the breach was of moderate seriousness with limited prejudicial impact, and that exclusion of the drugs and proceeds would bring the administration of justice into disrepute given the seriousness of the offences.

The evidence was admitted for trial.

Following a judge-alone criminal trial arising from a volatile intimate-partner relationship, the court assessed credibility, circumstantial evidence, expert fire investigation evidence, and forensic chemistry evidence concerning an apartment fire, threats, property damage, and a secretly taken nude photograph.

The court accepted the complainant's evidence notwithstanding some inconsistencies and applied the circumstantial evidence framework to determine which inferences were reasonably available.

The Crown failed to prove the specific intent to kill required for attempted murder, but proved aggravated assault, two arson counts, one count of mischief, uttering a death threat, and voyeurism.

The accused was acquitted of attempted murder and one mischief count because colour of right raised a reasonable doubt as to the cellphone.

The accused was charged with sexual assault, assault, uttering threats, and unlawful confinement against his intimate partner.

The unlawful confinement charge was dismissed by consent.

The court found the complainant's evidence credible regarding the sexual assault and rejected the accused's defence of honest but mistaken belief in consent, finding he failed to take reasonable steps to ascertain consent and relied on mistakes of law.

The accused was found guilty of sexual assault and assault, but acquitted of uttering threats.

During a murder trial, the Crown brought a KGB application to admit the transcript of an Agreed Statement of Facts (ASF) from a witness's prior guilty plea for substantive use.

The witness, who had pled guilty to attempt to obstruct justice, claimed a lack of memory regarding the events when testifying.

The court found that necessity was established by the witness's recantation and that procedural reliability was met because the ASF was sworn under oath, adopted during a guilty plea with counsel present, and subject to cross-examination at trial.

The application was granted, allowing the edited transcript to be used for the truth of its contents.

The plaintiff software developer sought an interlocutory injunction against a former employee and her company, alleging they breached confidentiality agreements and infringed copyright by developing competing software using the plaintiff's source code.

The court found a serious issue to be tried and that the plaintiff would suffer irreparable harm from the loss of its Canadian market share.

The court granted an injunction restraining the defendants from selling their software to new clients in Canada pending trial, but allowed them to continue servicing existing clients to balance the convenience and maintain the status quo.

The defendants were also ordered to provide a monthly accounting of revenues.

The offender was convicted of administering a noxious substance and invitation to sexual touching in relation to his 11-year-old great-niece.

The court stayed a trafficking charge under the Kienapple principle.

The offender provided the child with crack cocaine and urged her to touch his penis.

The court found the offender was in a position of trust and the victim was vulnerable.

The court imposed consecutive sentences of 9 months for administering a noxious substance and 12 months for invitation to sexual touching, for a total of 21 months' incarceration.

The court declined to grant enhanced pre-sentence credit for bail or lockdown conditions.

The plaintiff was bitten in the face by a dog owned by the defendants.

The defendants were noted in default, and the matter proceeded as an undefended trial on affidavit evidence to assess damages.

The court awarded the plaintiff $37,500 in general damages for physical scarring and psychological trauma, $2,500 for future psychological care, and $5,461.43 for the OHIP subrogated claim.

The plaintiff's parents were each awarded $5,000 under the Family Law Act for loss of care, guidance, and companionship.

Costs were fixed at $16,000 on a partial indemnity basis.

In a civil forfeiture proceeding, the interested party brought a motion to exclude seized currency from evidence, arguing that the search warrants for his residence and vehicle violated his section 8 Charter rights.

The court reviewed the Information to Obtain (ITO) and found that the police had established a fair probability that evidence of a crime would be found, based on the party's prior drug trafficking convictions, surveillance of hand-to-hand transactions, and the practice of separating drugs from cash.

The motion to exclude the evidence was dismissed, and costs were awarded to the Attorney General.

The plaintiff successfully defeated the defendants' anti-SLAPP motion and sought costs on a partial indemnity scale.

The court considered whether to depart from the statutory presumption in section 137.1(8) of the Courts of Justice Act, which provides that a successful responding party is generally not entitled to costs.

Finding that the defendants' motion was not frivolous, ill-conceived, or brought at an unjustifiably late stage in the proceeding, the court declined to exercise its discretion to award costs.

No order as to costs was made.

The applicant, charged with drug trafficking offences following a mass arrest operation, brought a Charter application alleging breaches of her ss. 7, 10(b), and 12 rights.

She claimed excessive force upon arrest, inhumane treatment during a lengthy wait in a police cruiser, and an unlawful strip search.

The court dismissed the application, finding the applicant's testimony regarding pain and suffering to be fabricated and contradicted by video evidence.

The court held that the police conduct was reasonable under the circumstances of the mass arrests, and the strip search was justified as the applicant was entering the prison population.

The plaintiffs in a medical malpractice action sought to adduce opinion evidence from two treating cardiac surgeons as participant experts.

The defendants brought a motion to exclude portions of the proposed evidence of one of the surgeons, arguing it went beyond the scope permitted by Westerhof and that the surgeon lacked impartiality and specific expertise.

The court allowed the motion in part, excluding opinions on the standard of care prior to the surgeon's involvement and on whether earlier surgery would have changed the outcome, as these were not based on his observation or participation.

However, the court permitted the surgeon to opine on matters arising directly from his involvement, holding that concerns about his partiality should go to the weight of the evidence rather than its admissibility.

The applicants sought a declaratory order requiring the respondent insurer to defend an action they brought against an insured financial planner.

The insurer had denied coverage because the insured did not purchase the optional mutual fund coverage under his professional liability policy.

The court dismissed the application, holding that the applicants, as non-parties to the insurance contract, lacked standing to enforce the insurer's duty to defend.

Furthermore, the court rejected the applicants' interpretation of the policy, finding that coverage for financial planning advice did not extend to products for which coverage was not purchased.

Following a four-day family law trial where the applicant mother was largely successful on the issues of custody and parenting, she sought partial indemnity costs of $17,000.

The respondent father, who was self-represented, did not provide costs submissions.

The court awarded the applicant $10,000 in costs, noting the respondent's refusal to accept a clinical investigator's findings and insistence on a trial.

Half of the costs award ($5,000) was designated as a support order to be collected by the Family Responsibility Office.