SCJ 2019

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.

The accused brought an application to exclude his statement to police following his arrest for a home invasion robbery, alleging Charter breaches and involuntariness.

The court dismissed the Charter claims, finding the accused understood his jeopardy when he spoke with counsel despite being under the influence of drugs.

However, the court found that the interviewing officer offered an improper inducement by suggesting a confession to a drug-fueled crime would potentially change the Crown's course of action.

Consequently, the portion of the statement made after the inducement was excluded as involuntary.

The applicant father brought a motion for interim primary residence of the parties' 12-year-old child, which was adjourned pending a Voice of the Child Report.

The court addressed several interim issues, ordering the child to change counsellors after the father unilaterally engaged a counsellor without the mother's consent.

The court also ordered the father to pay interim child support on a set-off basis and interim spousal support at the high range of the Spousal Support Advisory Guidelines.

Further orders were made regarding the equal sharing of matrimonial home expenses, the distribution of home sale proceeds, and corporate disclosure.

The plaintiff repair shop brought an action to recover amounts paid into court by the defendant vehicle owner under the Repair and Storage Liens Act.

The plaintiff had repaired and stored a Ferrari leased to a third party that later went into receivership.

The court found that the plaintiff had valid non-possessory liens that became charges on the funds paid into court.

The court awarded the plaintiff $30,358.06 for the fair value of the repairs but dismissed the claim for storage charges due to insufficient evidence of fair value.

The applicants, accused of a home invasion robbery, brought a Charter application to exclude evidence (including firearms and disguises) found in the trunk of a vehicle.

The police had stopped the vehicle hours after the robbery without reasonable grounds, detaining the occupants for an extended period without reading them their rights to counsel.

The court found serious breaches of sections 9 and 10(b) of the Charter.

Applying the Grant framework, the court concluded that the seriousness of the breaches and their impact on the applicants' rights outweighed society's interest in adjudicating the case on its merits, resulting in the exclusion of the evidence.

The applicant sought an extension of time to appeal his 2014 conviction for impaired driving, entered via guilty plea.

He argued that a head injury sustained in the motor vehicle accident rendered him cognitively incapable of making an informed and voluntary plea, and that he only recently understood the collateral consequences regarding his civil accident benefits.

The Summary Conviction Appeal Court dismissed the motion, finding the five-year delay was inadequately explained and the proposed appeal lacked merit, as the applicant possessed the limited cognitive capacity required to enter a valid guilty plea.

The applicant children's aid society sought a 120-day extension of a secure treatment order for a youth.

The youth opposed the extension, seeking to be returned to a group home.

The court found that the youth suffered from a mental disorder and that the secure treatment program was necessary to prevent the youth from causing serious bodily harm to themselves or others, particularly given a history of fleeing and impulsive behaviour.

The court concluded that no less restrictive method was appropriate and that an appropriate plan for care upon release was being developed.

The application for a 120-day extension was granted.

The appellant appealed his convictions for criminal harassment and breach of probation.

He argued the trial judge erred in interpreting 'following from place to place' under s. 264(2)(a) of the Criminal Code by finding that repeatedly driving past the complainant in the opposite direction constituted following.

The appeal judge declined to follow prior coordinate decisions that restricted the definition to pursuing or chasing, finding such an interpretation inconsistent with the legislative purpose of the harassment provisions.

The appellant also argued the trial judge erred in admitting similar fact evidence to identify him as the author of an obscene notebook.

The appeal judge agreed the trial judge erred but applied the curative proviso under s. 686(1)(b)(iii), concluding the trial judge would have convicted anyway based on overwhelming independent evidence of identity.

The appeal was dismissed.

The appellant appealed his conviction for impaired driving, arguing the trial judge erred in dismissing his s. 11(b) Charter application for unreasonable delay.

The total delay was 20 months and one week, but the trial judge deducted time for exceptional circumstances (the original trial judge's recusal), bringing the net delay to 16 months and one week, below the 18-month presumptive ceiling.

The Superior Court of Justice found no error in the trial judge's application of the Jordan framework or the sufficiency of his reasons, and dismissed the appeal.

The plaintiff brought a motion to amend his statement of claim, which was allowed in part after the defendant successfully objected to several proposed amendments that offended the rules of pleading.

The parties could not agree on costs for the motion.

The court awarded partial indemnity costs to the defendant, fixed at $1,400, reflecting the defendant's partial success and the divided outcome of the motion.

The respondent insurer sought costs after successfully bringing a summary judgment motion to dismiss the applicant Estate's proceeding for lack of jurisdiction.

The underlying dispute involved the enforcement of a $350,000 accident benefits settlement reached before the claimant's death.

The court declined to award costs to the successful respondent, finding that the jurisdictional issue was novel, the applicant was not wrong to seek enforcement (only wrong in its choice of forum), and there was effectively divided success as the work could be reused at the Licence Appeal Tribunal.

The applicants sought a declaration that a right-of-way agreement over a mutual driveway was void, while the respondent brought a cross-application seeking rectification of the agreement and an injunction against interference.

The court found that the right-of-way agreement was valid despite lacking a formal enurement clause, as the intention to create an easement running with the land was clear.

The court granted the respondent's application for rectification of the agreement and the parcel registers to correct a drafting error regarding the commencement point of the right-of-way.

The court also declared the respondent's right to vehicular access and ordered the applicants to remove encroachments, including a shed and fence, that substantially interfered with the right-of-way.

The plaintiff, a process serving and litigation loan company, brought a motion for substituted service on several unserved defendants who had defaulted on litigation loans.

Alternatively, the plaintiff sought a Norwich Order compelling the co-defendant, the lawyer who represented the unserved defendants and negotiated the loans, to disclose their addresses.

The court dismissed the request for substituted service as premature because the defendants' whereabouts were unknown.

However, the court granted the Norwich Order, finding that the clients' addresses were administrative information not protected by solicitor-client privilege, and ordered the lawyer to disclose them.

The plaintiff Medical Centre and defendant JD Development owned abutting properties subject to a system of easements.

Both submitted redevelopment site plans to the City of Markham.

The Medical Centre's plan relied on paving an easement over JD Development's property for vehicular access, while JD Development's plan showed the easement as partially sodded, which would block vehicular access.

The Medical Centre brought a motion for declarations regarding its right to use and pave the easement.

JD Development argued the Local Planning Appeal Tribunal (LPAT) had exclusive jurisdiction.

The Superior Court held it had jurisdiction to determine property rights, declared the Medical Centre had the right to use the easement for vehicular traffic and to pave it at its own expense, but declined to order JD Development to amend its site plan.

The Children's Aid Society brought a motion for the production of third-party mental health and police records relating to the respondent mother in a child protection status review proceeding.

The mother opposed the motion, arguing it was a fishing expedition and an invasion of her privacy.

The court granted the motion, finding that the records may be relevant to assessing the mother's ability to parent and the children's best interests, and that the mother had not provided a physician's statement indicating that disclosure would cause harm.

Following a decision where the plaintiffs successfully opposed confirmation of a Master's Report on a single issue that granted them priority over the defendant mortgagees, the court determined the costs of the action.

The plaintiffs sought $117,279.01 based on an offer to settle, while the defendants argued for $3,260.65 due to the plaintiffs' limited success on most issues.

Balancing the proportionality of time spent on the successful issue against the fact that it yielded the plaintiffs' entire desired remedy, the court awarded the plaintiffs $35,000 in costs.

The defendant purchaser brought a motion to stay the plaintiff builder's action for breach of an agreement of purchase and sale in favour of arbitration.

The dispute arose from an aborted real estate transaction for a pre-construction home, where the defendant alleged the plaintiff breached early termination conditions under the Tarion Addendum.

Relying on a companion case, the court found that the dispute arguably fell within the arbitration clause and applied the competence-competence principle.

The motion was granted, and the action was stayed to permit the arbitration to proceed.

The plaintiff sued multiple defendants for a serious workplace injury sustained when her arm was caught in a turret winder.

The defendant manufacturer, GN Gear, brought a motion for summary judgment to dismiss the plaintiff's claim and the co-defendants' crossclaims against it, arguing it only manufactured the machine to specifications and had no role in its design.

The court dismissed the motion against the plaintiff, finding genuine issues for trial regarding the interwoven nature of the design and manufacturing process due to reverse engineering, and the risk of inconsistent findings if partial summary judgment were granted.

The unopposed motion to dismiss the crossclaims was granted.

The plaintiff, an elderly resident, sued the defendant retirement home after a slip and fall on an uneven sidewalk.

Following a jury trial, the defendant was found not liable.

The defendant, represented by in-house counsel for its insurer, sought costs.

The court declined to award costs to the successful defendant, noting the insurer's "hardball" tactics, refusal to negotiate, and the broader social interest of access to justice for modest litigants facing large insurers.

The applicant father sought joint custody and increasing parenting time of his son, while the respondent mother sought sole custody and limited, supervised access.

The mother had tightly controlled the father's access since birth, requiring it to be supervised at a centre despite no safety concerns.

The court found the mother's gatekeeping behaviour detrimental to the father-son relationship.

The court ordered joint custody, with primary residence to the mother, and a schedule of increasing unsupervised parenting time for the father, including overnights.

The father was also ordered to pay child support based on an imputed income of $40,000.