SCJ 2019

Following the dismissal of a motion to set aside the appointment of an administrator for a condominium corporation, the court determined the costs of the motion.

The applicant was awarded full indemnity costs of $36,226.82 payable by the condominium corporation, as the moving parties had made unfounded allegations but were acting in what they believed to be the interests of all unit owners.

The moving parties were also awarded partial indemnity costs of $15,000 payable by the condominium corporation, as they achieved partial success and brought forward issues of interest to all unit owners.

The plaintiff vendor commenced an action for specific performance or damages after the defendant purchaser failed to close on a pre-construction home.

The purchaser sought to stay the action in favour of arbitration, alleging the vendor breached the agreement by failing to complete the early termination conditions in the Tarion Addendum.

The vendor brought a motion for summary judgment.

The court held that the dispute over the early termination conditions and the applicability of the arbitration clause involved contested facts that should be resolved by an arbitrator under the competence-competence principle.

The action was stayed in favour of arbitration.

The accused, charged with human trafficking and other offences involving a minor complainant, brought an application to exclude evidence derived from a search of her cell phone and from production orders.

The accused argued that the Information to Obtain (ITO) for the search warrant contained misleading information and sought an overly broad date range, violating section 8 of the Charter.

The court found that while the ITO contained some misleading information, its core substance supported the issuance of the warrant.

Regarding the production orders, the court applied the Grant framework to a previously found section 8 breach and concluded that the evidence should not be excluded under section 24(2) of the Charter, as the police acted in good faith, the breach was minimally intrusive, and society has a high interest in adjudicating the serious charges on their merits.

The applications were dismissed.

The applicant lender sought a declaration that a prior mortgage registered on the respondents' property was a fraudulent sham designed to defeat its security interest.

The respondent lawyer, who acted for both the borrowers and the applicant, registered multiple mortgages on the property, including one to a corporation controlled by his sister, without disclosing them to the applicant.

The court found the prior mortgage was a sham unsupported by any advancement of funds and ordered the land register rectified to delete the fraudulent charge under the Land Titles Act.

The accused, charged with arson and related offences, brought four applications during his trial.

He sought to quash a wiretap authorization, exclude the evidence of a police agent, and stay the charges due to late disclosure.

The court granted the application to quash the wiretap authorization, finding that the Information to Obtain (ITO) omitted material facts and failed to accurately present the informant's credibility issues, resulting in a breach of section 8 of the Charter.

The wiretap evidence was excluded under section 24(2).

The remaining applications, including the request for a stay of proceedings due to late disclosure, were dismissed, as the late disclosure did not irreparably prejudice the accused's right to make full answer and defence.

The plaintiffs sought summary judgment for damages arising from the defendants' anticipatory repudiation of an agreement to purchase a waterfront property.

The plaintiffs resold the property for $325,000 less than the original contract price and claimed the difference plus additional commission costs as damages.

The court determined the proper assessment date for damages was the intended closing date of the original agreement.

However, the court found that the resale price alone was insufficient to prove market value in these circumstances and that there was a genuine issue regarding mitigation.

The court directed the parties to file further expert evidence on market value and mitigation to allow the damages to be determined under the court's enhanced fact-finding powers on summary judgment.

The appellant mother appealed a summary judgment order placing her two children in extended society care with no access.

She argued the proceeding was procedurally unfair because she was improperly designated a 'special party' due to mental incapacity, which deprived her of the right to instruct counsel.

She also alleged ineffective assistance by the counsel appointed for her by the Public Guardian and Trustee.

The Superior Court of Justice dismissed the appeal, finding the special party designation was valid and unappealed, the appointed counsel provided competent representation, and the motion judge made no palpable and overriding errors in determining that extended society care was in the children's best interests.

The respondent wife brought a motion seeking various interim relief, including financial disclosure, release of trust funds, partition and sale of the matrimonial home, and an increase in spousal support.

The court ordered the applicant husband to provide the requested financial disclosure and released $68,000 from trust to pay the wife's tax arrears.

The court dismissed the wife's requests to set aside the husband's exclusive possession and the restraining order against her.

However, the court ordered the pre-trial partition and sale of the jointly owned matrimonial home, finding the husband had not established a competing interest under the Family Law Act that would be defeated by the sale.

Interim spousal support was also increased due to a material change in the husband's income.

The parties separated after an eight-year marriage and disputed custody, access, child support, and equalization.

The mother sought sole custody of their six-year-old child, while the father sought joint or sole custody with expanded access.

The court awarded sole custody to the mother, finding the parents unable to communicate effectively and the mother better positioned to provide stability.

The court imputed an income of $50,000 to the father, finding him intentionally underemployed after he quit his banking job to pursue politics.

The court also granted the mother an unequal division of net family property due to the father's reckless depletion of a jointly owned property in Jamaica.

Following a trial where the plaintiff was awarded damages and punitive damages due to the defendants' reprehensible conduct, the parties made written submissions on costs.

The court determined the proper calculation of pre-judgment interest under the Courts of Justice Act, finding the plaintiff was entitled to a single rate rather than a quarter-by-quarter calculation.

With the total judgment calculated at $1,196,682, the plaintiff beat the defendants' Rule 49 settlement offers.

The court awarded the plaintiff costs fixed at $300,000 on a substantial indemnity basis.

The applicants, second mortgagees, sought to set aside a tenancy agreement under s. 52 of the Mortgages Act after the mortgagors defaulted and a writ of possession was issued.

The mortgagors had entered into a lease with the tenants for $800 per month, significantly below the monthly mortgage payments, after the default occurred.

The court found the lease was entered into with the object of discouraging the mortgagees from taking possession or adversely affecting their interest.

Balancing the interests of the innocent tenants and the mortgagees, the court ordered the tenancy to terminate in three months to allow the tenants time to find new accommodation.

The parties separated following an incident leading to the father's arrest for assault.

The children remained with the mother.

The father brought an interim motion seeking shared custody and equal parenting time, relying on the maximum contact principle.

The mother brought a cross-motion to maintain the status quo and sought child support.

The court dismissed the father's request for equal parenting time, finding that modifying the long-standing interim regime before trial was not in the children's best interests.

The court ordered the father to pay child support of $890 per month and directed pro rata sharing of special expenses.

The defendants successfully defended motions for summary judgment brought by the plaintiffs and a co-defendant concerning an aborted real estate transaction.

In determining costs, the court criticized the defendants' disorganized, inefficient, and unnecessarily lengthy approach to the motions, which included filing duplicative materials and excessive authorities.

The defendants sought over $108,000 on a full indemnity basis, which the court found astonishing and unsupported by dockets or settlement offers.

Applying principles of fairness, reasonableness, and proportionality, the court fixed the defendants' costs at $20,000 all-inclusive, payable $14,000 by the plaintiffs and $6,000 by the co-defendant.

The self-represented applicant brought an urgent motion prior to a case conference seeking immediate payment of child and spousal support due to alleged dire financial circumstances, and an order removing the parties' daughters from the respondent's care due to safety concerns.

The court dismissed the motion, finding insufficient evidence to establish urgency regarding the children's safety or the applicant's financial hardship.

The dismissal was without prejudice to the applicant returning with a further affidavit providing full financial disclosure.

Following a motion to strike portions of an amended counterclaim where the moving party achieved mixed but overall greater success, the parties made written submissions on costs.

The moving party sought $7,784.53 on a partial indemnity basis, while the responding party argued for no costs or costs in the cause.

The court found the moving party's claimed fees excessive given the motion's lack of complexity and short duration.

Costs were fixed at $4,235 inclusive of disbursements and HST, payable by the responding party within 30 days.

The accused was charged with multiple offences, including break and enter, assault, unlawful confinement, and theft, following a home invasion of a 76-year-old woman.

The victim was tied to a chair while her home was ransacked and her vehicle and wallet were stolen.

Although the victim could not identify the intruder, the accused was found in possession of her stolen credit cards within two hours of the offence.

Applying the doctrine of recent possession, the court inferred that the accused was the intruder and found him guilty on all counts.

The defendant applied under sections 7 and 24 of the Charter to exclude the testimony of his former girlfriend, arguing that police violated her s. 10(b) right to counsel during an interrogation, which amounted to an abuse of process.

The court found that while the witness's rights may have been breached, the defendant's fair trial rights were not violated.

The court held that the police conduct did not undermine society's expectations of fairness in the administration of justice, and excluding the evidence would be more likely to bring the administration of justice into disrepute.

The application was dismissed.

The self-represented plaintiff brought a motion to set aside a previous order that dismissed her motion to transfer a Small Claims Court action to the Superior Court.

The previous motion was dismissed because the plaintiff failed to appear when called, having been directed to the wrong courtroom.

The court held that Rule 37.14, rather than Rule 38.11, applied because the dismissed motion was interlocutory.

Emphasizing the principles of access to justice and the liberal interpretation of the Rules, the court set aside the dismissal order and permitted the plaintiff to reschedule her transfer motion.

The plaintiff vendor brought a motion for summary judgment seeking specific performance of an agreement of purchase and sale for a custom-built home after the defendant purchaser failed to close.

The purchaser argued the agreement was complex, he lacked English skills, and his agent had a conflict of interest, but provided no legal basis to void the contract.

The court found no genuine issue for trial, upheld the agreement, and ordered specific performance, noting the home's customized features and the difficulty of assessing damages due to unsold inventory.

The defendant brought a pre-trial application to exclude evidence seized from his hotel room, alleging breaches of his rights under ss. 8, 9, 10(a), and 10(b) of the Charter.

Police officers investigating a theft knocked on the door of the hotel room.

When the door was opened, an officer observed brass knuckles in plain view and saw the defendant dart out of sight, prompting a warrantless entry for officer safety.

Inside, the officer saw the defendant with a bag of drugs and arrested him.

The court found that while the defendant had a reasonable expectation of privacy, the knock was not a search and the entry was a justified safety search.

The court found breaches of the defendant's s. 10(b) right to counsel and an overbroad search incident to arrest, but concluded under s. 24(2) that the evidence seized in plain view should not be excluded.