SCJ 2019

The respondent, who was previously prohibited from bringing motions without prior judicial approval, brought a motion for leave to proceed with a motion seeking 17 substantive heads of relief.

The court dismissed the motion for leave, noting that the supporting affidavit was excessively long, argumentative, and replete with unsupported allegations of fraud against lawyers and judicial officials.

The court warned the respondent that further non-compliance could result in her being declared a vexatious litigant and restricted future affidavits for leave motions to five pages.

The appellant appealed his conviction and 18-month conditional sentence for sexual assault.

He argued the trial judge erred in dismissing his s. 10(b) Charter application regarding his right to counsel and misapprehended evidence in finding the complainant was unconscious and incapable of consenting.

The Superior Court of Justice dismissed the appeal, finding the trial judge's conclusion that the appellant waived his right to counsel was supported by the evidence.

The court also held that the trial judge properly assessed the evidence, including the appellant's statement to police and witness testimony, to reasonably conclude the complainant was unconscious.

The sentence appeal was also dismissed as the sentence was not demonstrably unfit.

The applicant mother brought a motion to vary a temporary week-about parenting schedule for the parties' four-year-old child.

The court found that no status quo had been established as the week-about schedule was intended to be a short-term trial.

Applying the best interests of the child test under the Children's Law Reform Act, the court determined that continuing the shared week-about schedule was in the child's best interests, noting the father's flexible work schedule and the child's strong emotional ties to both parents.

The motion to change the temporary schedule was denied.

The applicant father brought a motion for summary judgment to recognize a final custody and access order from the United Kingdom as an order of the Ontario Superior Court of Justice under section 41(1) of the Children's Law Reform Act.

The respondent mother opposed the motion, alleging breaches of the order and seeking to vary it.

The court found no genuine issue requiring a trial, as the mandatory criteria for recognizing an extra-provincial order were met and none of the statutory exceptions applied.

The motion for summary judgment was granted and the U.K. order was recognized.

The plaintiffs brought a motion for leave to issue a Certificate of Pending Litigation (CPL) against a residential property, an order preserving the property, and an order that the proceeds of sale of another property be paid into court.

The dispute arose between the estate of a deceased sister and the surviving sister over properties originally owned by their mother.

The court dismissed the motion for a CPL and payment into court, finding that damages would be an adequate remedy and the plaintiffs did not demonstrate a serious prospect of ultimate success or risk of dissipation.

The court granted the defendants' cross-motion to permit the sale of the property, provided half the net proceeds are paid into court.

The defendant abandoned a summary judgment motion on the eve of argument after the plaintiffs had repeatedly warned that credibility issues required a trial.

The plaintiffs sought costs for the abandoned motion.

The court found that the defendant acted unreasonably in bringing and pursuing the motion, which stood virtually no chance of success, and awarded the plaintiffs costs on a substantial indemnity basis.

The court also allowed a small set-off for the defendant's costs of responding to the plaintiffs' tactical cross-motion, which was also abandoned.

The plaintiffs were awarded net costs of $37,000.

The applicant brought a motion against the Family Responsibility Office (FRO) seeking reimbursement for alleged child support overpayments and an order to enforce a temporary support order.

The court reviewed the applicant's calculations and the FRO's statement of arrears.

The court found the applicant's evidence incomplete and inconsistent with employer records, concluding he failed to prove an overpayment.

The motion was dismissed, as the FRO had also already credited the applicant's account for the temporary support order.

The applicant executor sought directions regarding the interpretation of the deceased's will.

The will granted a life interest in a residential property to the deceased's wife, with the remainder to his two sons.

One of the sons died intestate before the life tenant.

The court applied the golden rule of will interpretation and the presumption of early vesting, concluding that the property vested in the sons at the date of the testator's death, not at the termination of the life interest.

In a receivership proceeding, the Receiver conducted a court-ordered claims process to determine entitlement to surplus proceeds from the sale of a property.

The Stanbarr Claimants sought the funds based on a prior judicial finding that the respondent, Canada Investment Corporation, had improperly inflated a mortgage payout statement.

The respondent opposed the Receiver's recommendation to pay the funds to the claimants, arguing the prior judicial finding was not final.

The court upheld the Receiver's recommendation, finding the prior decision was res judicata, and ordered the funds paid to the claimants.

The applicant was successful in a mobility trial permitting her to relocate with the parties' two children from London to Woodstock.

She sought costs of $8,857.71.

The respondent did not file costs submissions.

The court considered the factors under rule 24(12) of the Family Law Rules and the applicant's offers to settle.

The court noted that the respondent's refusal to agree to the move was not unreasonable simply because he was unsuccessful.

The court awarded the applicant costs of $3,500 inclusive of disbursements and HST.

Following a successful summary judgment motion dismissing the plaintiffs' action, the successful defendant sought costs of $25,000 to $30,000 on a substantial indemnity basis, relying on an expired offer to settle.

The plaintiffs argued for costs in the range of $10,000 to $15,000.

The court found that substantial indemnity costs were not justified as the offer to settle had expired long before the motion and the case raised important issues for the plaintiffs.

The court awarded the defendant costs on a partial indemnity scale in the amount of $23,376.43.

The applicant pharmacy entered into an agreement to lease commercial space in the respondent's condominium building.

The agreement permitted the use of the premises as a pharmacy and family medical clinic.

Upon discovering the applicant intended to dispense methadone, the respondent attempted to impose a standard form lease containing onerous conditions not contemplated in the original agreement, and refused to grant possession unless signed.

The court held the agreement to lease was binding and enforceable, and the respondent breached the agreement by refusing possession.

A trial was directed to determine the applicant's damages.

The applicant father brought an interim motion for access to his two children, seeking a gradually increasing schedule.

The respondent mother and the Office of the Children's Lawyer opposed the motion, citing the father's undiagnosed and untreated mental health issues, his failure to comply with a prior order to disclose psychiatric records, and the children's strong views against seeing him.

The court found that the father had not complied with the prior disclosure order and that access was not in the children's best interests at this time.

The motion was dismissed, with leave to renew upon compliance with the disclosure order.

The applicant sought enforcement of a separation agreement requiring sale or transfer of the matrimonial home and payment of the net sale proceeds to him.

The respondent sought to set aside the agreement under s. 56(4) of the Family Law Act on grounds of alleged non-disclosure, duress, inadequate legal advice, and post-agreement cohabitation.

The court rejected each ground, finding the respondent understood and negotiated the agreement, had legal advice, and failed to prove any material non-disclosure or reconciliation.

The court ordered sale of the matrimonial home with net sale proceeds to the applicant and awarded damages of $125,000 for loss caused by the respondent's registration of a later mortgage in breach of the agreement.

The defendant appealed a Master's order granting the plaintiffs leave to amend their statement of claim.

The proposed amendment alleged that a trust agreement concerning a residential property was void because it violated the common law Rule Against Perpetuities by failing to specify a time frame for legal title to vest.

The Superior Court of Justice allowed the appeal, finding that the Master erred in law by failing to determine if the pleading was legally tenable.

The court held that under sections 3 and 4 of the Perpetuities Act, the contingent interest was presumptively valid and subject to a 'wait and see' approach, making the plaintiffs' proposed amendment impossible of success and legally untenable.

The accused was charged with four counts of sexual assault and one count of unlawful confinement involving a 26-year-old complainant with an intellectual disability.

The complainant went missing for four days, during which time she stayed at the accused's apartment and was repeatedly sexually assaulted.

The court applied the standard for child witnesses to assess the complainant's credibility and found her evidence reliable regarding the sexual assaults.

The accused was found guilty of sexual assault but acquitted of unlawful confinement due to a reasonable doubt about whether the complainant was held against her will.

The accused, charged with historical domestic violence offences, brought an application under the common law O'Connor framework for the production of third-party records relating to two complainants.

The records were held by a school board and a children's aid society.

The court found that the accused met the first-stage threshold of demonstrating that the records were likely to be relevant to the complainants' credibility, given the unfolding of the allegations and the potential influence of a school social worker.

The court ordered the records produced for judicial inspection.

The applicant and respondent, siblings, engaged in a dispute over their mother and sister's properties and the respondent's management as attorney for property.

Both incapable parties resided in long-term care.

The applicant sought an order for the respondent to pass her accounts and to reverse the severance of a joint tenancy, while the respondent sought to enforce a mediated settlement.

The court declined to enforce the settlement as it prejudiced the incapable parties, refused to order a passing of accounts to preserve limited funds, and ordered the sale of the properties to fund the incapable parties' ongoing care, applying the anti-ademption provisions of the Substitute Decisions Act to the proceeds.

The plaintiff brought a motion to set aside a Registrar's order dismissing the action for delay.

While most defendants consented, one defendant opposed the motion.

The court applied a contextual approach, finding that the litigation delay was adequately explained by intervening motions and appeals, the deadline was missed due to inadvertence, the motion was brought promptly, and there was no actual prejudice to the defendants.

The court granted the motion, set aside the dismissal order, and directed the action be set down for trial within 30 days, with no costs awarded.

The moving party sought to prove the 2017 Will of her late father, which left the estate entirely to her and disinherited her two brothers.

The respondent brothers challenged the Will, alleging lack of testamentary capacity, failure to know and appreciate the contents, and undue influence by the moving party.

The court found that the drafting solicitor's evidence substantially answered the concerns regarding capacity and knowledge.

However, the court found a minimal evidentiary basis existed regarding undue influence due to the potential for domination in the parent-child relationship and conflicting evidence.

The court ordered the production of solicitor and financial records and adjourned the motion for directions.