SCJ 2019

The plaintiff brought a motion to find the defendant in civil contempt for failing to comply with a 2011 judgment.

The 2011 judgment ordered the defendant to take whatever steps were necessary to ensure that the plaintiff's surface water drained across his property.

The court found that the defendant had installed a drainage pit but failed to connect it to the plaintiff's property or take other necessary steps to allow the water to flow, instead insisting the plaintiff was responsible for further work.

The court held that the plaintiff established the three essential elements of civil contempt beyond a reasonable doubt and declared the defendant in contempt, with the penalty phase to be scheduled later.

The applicant was entirely successful in its application to have the respondent declared a vexatious litigant.

The applicant sought its costs of the application on a partial indemnity basis in the amount of $5,832.18.

The respondent, who was self-represented, did not file responding materials.

The court reviewed the claimed fees and disbursements, reducing the hourly rates for junior counsel and the law clerk to reflect local rates, and reducing the disbursements claimed for photocopying and process serving.

The court fixed the applicant's costs at $4,785.00 on a partial indemnity scale.

The moving defendants in a solicitor negligence action brought a motion to remove the plaintiff's lawyer from the record and for production of his litigation files.

The defendants argued the lawyer was likely to be a material witness regarding the plaintiff's efforts to mitigate damages on an appeal.

The court granted the motion to remove the lawyer, finding he was likely to be called as a witness and his role as advocate could not be reconciled with his role as a witness.

The motion for production of the litigation files was dismissed as premature and overbroad.

The appellant appealed his convictions for sexual assault and sexual interference, arguing the trial judge erred in law regarding the burden of proof.

The trial judge had stated that in the absence of contradiction of the complainant's evidence, he 'must accept it'.

The Superior Court of Justice found this to be an error of law that shifted the burden of proof and failed to consider the third branch of the W.(D.) analysis.

The court declined to apply the curative proviso, allowed the appeal, and ordered a new trial.

The respondent moved for an order to sell the jointly owned matrimonial home before trial, which the applicant opposed.

The applicant also sought temporary spousal support and retroactive child support.

The court ordered the sale of the matrimonial home, finding the applicant could not afford the carrying costs and the equity would not justify transferring the respondent's interest to her.

The court dismissed the claim for temporary spousal support as the respondent lacked the ability to pay, but ordered the respondent to pay retroactive child support for the period the child lived with the applicant before completing high school.

The plaintiff, assignee of a debt for commercial fuel deliveries, brought a motion for summary judgment against a father and son who previously operated a business as a general partnership.

The partnership had been dissolved by an arbitrator's order, but neither partner notified the fuel supplier.

The son continued to order fuel while occupying the business premises.

The court granted summary judgment, finding that under s. 36(1) of the Partnerships Act, the failure to notify the creditor meant both former partners remained jointly and severally liable for the debt incurred.

The assignment of the debt was also found to be valid.

The moving parties sought an urgent interlocutory injunction to prevent the respondent from selling securities in a real estate development project pursuant to a put option agreement, or alternatively, an order freezing the sale proceeds under Rule 45.02.

The court found that while the moving parties might suffer irreparable harm if the proceeds were repatriated out of Canada, the balance of convenience favoured the respondent, who had a valid third-party offer and faced an impending mortgage expiry.

The court also held that the sale proceeds did not constitute a specific fund under Rule 45.02 as the moving parties' claim was essentially for damages.

The motion was dismissed, with leave to renew if the current sale transaction failed to close.

The applicant father brought a motion for a custody and access assessment under s. 30 of the Children's Law Reform Act, arguing that the parties' relationship was high conflict and the child was manifesting stress.

The respondent mother opposed the motion.

The court applied the Glick criteria and found that the evidence did not support the need for an assessment, as there was no clinical diagnosis, the child was thriving, and the conflict was typical of parenting disputes.

The motion was dismissed, and the parties were ordered to exchange parenting plans.

The plaintiff, a director of a company that contracted with the defendant to host a television festival, sued the defendant for breach of contract, negligence, and breach of fiduciary duty after the defendant cancelled the agreement due to unpaid fees.

The defendant moved for summary judgment.

The court granted the motion, finding that the plaintiff's claim was statute-barred as it was commenced more than two years after the claim was discovered.

Furthermore, the court held that the plaintiff lacked privity of contract to sue personally, and that the defendant owed no duty of care or fiduciary duty to the plaintiff.

The appellant mother appealed an Ontario Court of Justice decision granting summary judgment to the Children's Aid Society, which placed her two children in extended care with no access.

The mother, who was unrepresented at the motion, contested much of the Society's evidence and was unable to effectively present her case or cross-examine witnesses.

The Superior Court of Justice allowed the appeal, finding that the motions judge erred in using discretionary powers to weigh evidence and evaluate credibility without a trial, as the polarized positions and procedural fairness concerns meant a fair and just result could not be achieved summarily.

The matter was remitted for trial before a different judge.

In an action regarding entitlement to catastrophic impairment benefits, the defendant insurer sought an order permitting its counsel to communicate with three of the plaintiff's former treating occupational therapists prior to calling them as witnesses at trial.

The insurer had retained two of the therapists to conduct section 42 assessments.

The court granted leave to bring the late motion but dismissed it on the merits.

The court held that the therapists owed a duty of confidentiality to the plaintiff arising from their therapeutic relationship, which was not waived by the plaintiff's participation in the section 42 assessments or by the limited consent forms he had signed.

The accused, a police officer, arrested a woman who was severely intoxicated by methamphetamine.

While she was in his custody, her condition deteriorated significantly, but he failed to seek medical assistance.

He subsequently transferred her to the custody of other officers and deliberately provided them with false and incomplete information about her medical condition, delaying medical intervention.

The detainee later died of methamphetamine toxicity.

The court found the accused guilty of failing to provide the necessaries of life and criminal negligence causing death, holding that his actions constituted a marked and substantial departure from the standard of care of a reasonably prudent police officer.

The appellant appealed a decision of the Consent and Capacity Board confirming her treating physician's finding that she was incapable of consenting to electro-convulsive therapy (ECT).

The appellant also sought a declaration that ECT amounts to cruel and unusual punishment under section 12 of the Charter.

The Superior Court of Justice dismissed the appeal, finding that the Charter claim exceeded the scope of the appeal and should be brought as a separate application.

The court upheld the Board's decision on capacity, concluding it was reasonable and supported by evidence that the appellant's mental condition rendered her unable to appreciate the reasonably foreseeable consequences of consenting to or refusing ECT.

The offender was convicted of possession of a prohibited firearm and possession of a firearm while prohibited.

The firearm, a loaded .45 calibre handgun, was found hidden under a bedsheet on a couch in the offender's apartment.

The offender claimed he was holding it for a friend.

The court sentenced the offender to 36 months for the firearm offence and 8 months consecutive for the breach of the prohibition order, for a total of 44 months.

After applying a 1.5:1 credit for pre-sentence custody and an additional 90 days for harsh conditions due to institutional lockdowns, the sentence was reduced to time served plus one day.

During a trial for drug trafficking and weapons offences, the defence brought an application under s. 24(1) of the Charter to exclude a full cell phone extraction report due to late disclosure by the Crown.

The Crown had disclosed a partial report earlier but only provided the full report on the day evidence was to commence.

The court found that while the full report should have been disclosed earlier, the late disclosure did not warrant exclusion of the evidence.

The court held that a one-week adjournment was sufficient to allow the defence to review the report and attenuate any prejudice, ensuring the accused's right to make full answer and defence under s. 7 of the Charter.

The applicants purchased a home in 1988, unaware that a 1984 mortgage registered by the previous owners had not been discharged.

In 2017, the applicants discovered the undischarged mortgage and requested its removal, but the respondent mortgagee demanded nearly $1 million for its discharge.

The applicants brought an application to declare the mortgage void.

The Superior Court of Justice granted the application, finding that the respondent's right to enforce the mortgage had been extinguished by the ten-year limitation period under the Real Property Limitations Act, as no payments or acknowledgments had been made since 1985.

The court directed the removal of the mortgage from title and awarded costs to the applicants.

The defendants/plaintiffs by counterclaim (NAD) brought a motion to strike the plaintiff's (HTS) pleadings for delay and failure to produce documents, and sought an interlocutory injunction to prevent HTS from using NAD's trademarks or confusingly similar marks to sell air diffusers.

The court declined to strike HTS's pleadings, giving them one final opportunity to produce a complete Affidavit of Documents.

However, the court granted the interlocutory injunction, finding that NAD established a strong prima facie case of passing off, irreparable harm due to potential market loss and unquantifiable damages, and that the balance of convenience favoured granting the injunction despite NAD's delay in bringing the motion.

In this family law trial, the court determined issues of decision-making, parenting time, exclusive possession of the matrimonial home, property division, and support.

The court ordered joint decision-making for the two younger children, and joint decision-making for the oldest child with the applicant having final say.

The children will reside primarily with the applicant, with the respondent having alternate weekends and Wednesday evenings with the younger children.

The applicant was granted exclusive possession of the matrimonial home until July 2021, after which it will be sold.

The respondent's income was imputed at $45,000 for child support purposes, and the applicant's claim for spousal support was dismissed.

The bankrupt, a 42-year-old second-time bankrupt, applied for a discharge.

The Canada Revenue Agency opposed the discharge on the grounds that it was a tax-driven bankruptcy, with the bankrupt owing over $660,000 in personal income taxes.

The court found that the bankrupt failed to cooperate with a CRA audit, transferred his business to his sister to avoid paying taxes, and artificially lowered his income to avoid surplus income payments.

The court ordered a conditional discharge requiring the payment of $150,000 and suspended the discharge for 18 months.

The tenants appealed a Landlord and Tenant Board order terminating their tenancy based on an N11 agreement.

The tenants argued the written agreement was subject to an oral side agreement allowing them to stay until the house was sold.

The Board upheld the eviction without making factual findings about the side agreement or explaining its legal consequences.

The Divisional Court allowed the appeal, finding the Board's failure to provide reasons or consider the real substance of the transaction under section 202(1) of the Residential Tenancies Act rendered the decision unreasonable and incapable of meaningful review.

The matter was remitted to a different Board member.