SCJ 2019

The plaintiff brought a motion for leave to commence an action using only his initials, alleging historical sexual abuse by a former teacher.

The plaintiff filed evidence from his treating psychotherapist indicating that using his real name would cause unnecessary harm and exacerbate his symptoms.

The defendants did not oppose the motion.

Applying the Dagenais/Mentuck test, the court granted the motion, finding that the salutary effects of the order outweighed the deleterious effects on the open court principle.

The self-represented plaintiff brought an ex parte motion for default judgment against the defendant bank.

The bank had filed a statement of defence late, but before the motion was heard.

The plaintiff argued the registrar should not have accepted the late pleading.

The Master dismissed the motion, holding that default judgment cannot be granted once a statement of defence is filed, and any further steps must be taken on notice to the defendants.

The applicant was successful on a motion to stay the respondent's motion to change and sought costs of $8,138.42 on a substantial indemnity basis.

The respondent argued the quantum was excessive and cited an inability to pay that would impact his child support obligations.

The court found the applicant's offer to settle lacked clarity to trigger full recovery costs, but noted the applicant acted reasonably by making an offer.

Applying principles of proportionality and reasonable expectations, the court fixed costs at $4,500.

The court declined to make the costs enforceable as child support, as the underlying motion predominantly concerned access.

The accused was tried on historical child sexual offence allegations arising from an extended family caregiving relationship.

Applying the W.(D.) framework, the court accepted the complainant's evidence, rejected the accused's evidence, and found the complainant's credibility was not undermined by delayed disclosure, continued family contact, or asserted implausibility arguments grounded in stereotypical assumptions about sexual abuse victims.

The court found guilt on sexual interference and sexual assault, but entered acquittals on invitation to sexual touching and unlawful confinement because those counts were either not independently established or were inadequately supported by the evidence.

The court directed further submissions on sentencing and the possible application of the Kienapple principle.

The accused, charged with first degree murder, sought to exclude a statement made to police, arguing it was involuntary and obtained in breach of his s. 10(b) Charter right to counsel due to language barriers.

The court found that the accused understood the police cautions and his right to remain silent, despite some initial confusion.

The court also held that the accused's right to counsel was not breached, as he was provided with a Bengali interpreter when consulting duty counsel and during his police interview.

The statement was ruled voluntary and admissible.

Following a 5-day family law trial regarding unjust enrichment and spousal support, the applicant sought full recovery costs of $59,083.06.

The respondent acknowledged entitlement but argued for partial recovery and significant reductions, including offsets for costs thrown away due to a prior trial adjournment.

The court awarded the applicant partial recovery costs of $18,750, applying deductions for a previously decided civil application, duplication of counsel, and a $7,000 offset for the respondent's costs thrown away.

The applicants, charged with human trafficking offences, brought an application for a stay of proceedings under s. 11(b) of the Charter, alleging unreasonable delay.

The total delay was approximately 32 months.

The central issue was whether a delay caused by defence counsel's unavailability following an adjournment necessitated by late Crown disclosure should be attributed to the defence.

The court held that the pre-Jordan principles in Godin no longer apply, and that periods where the court and Crown are ready but the defence is not must be deducted as defence delay.

After deducting defence delay, the net delay fell below the 30-month presumptive ceiling.

The application was dismissed.

Following the successful dismissal of the plaintiff's action on a motion for summary judgment, the defendants, the University of Sudbury and Pierre Zundel, sought costs.

The defendants had previously advised the plaintiff that he had no right to sue and had served an offer to settle for a dismissal without costs, which was not accepted.

The court awarded the defendants substantial indemnity costs in the amount of $38,969.21, finding the amount reasonable and proportionate.

The defendant brought a motion for the production of the plaintiff's bank records from May 2009 to the present.

The plaintiff, a sole proprietor claiming significant economic loss following a motor vehicle accident, opposed the motion on the basis that he had already produced ledgers and tax records.

The court found the bank statements were relevant to verify the plaintiff's pre-accident income and test the adjustments made by his economic loss expert.

Applying the principle of proportionality, the court ordered the production of the bank statements, with the defendant to reimburse the plaintiff for the cost of obtaining them.

The plaintiff bank brought a motion for summary judgment to enforce personal guarantees signed by the defendants for loans made to a now-bankrupt corporate borrower.

Three of the defendants brought competing summary judgment motions seeking to discharge their guarantees, arguing they lacked independent legal advice and that the bank acted in a commercially unreasonable manner.

The court granted the plaintiff's motion and dismissed the defendants' motions, finding the guarantees valid and enforceable.

The court held that the lack of independent legal advice did not invalidate the guarantees absent unconscionability or misrepresentation, and the express terms of the guarantees precluded the commercially unreasonable realization defence.

The defendants' counterclaims were also dismissed.

The plaintiff brought a medical malpractice action against an emergency room physician, alleging negligence in the diagnosis and treatment of an abscess and hyperglycemia.

The plaintiff claimed the abscess was anorectal and required immediate incision and drainage, while the defendant diagnosed a simple buttocks abscess that was not yet ready to drain.

The court preferred the evidence of the defence expert, finding that the abscess was located on the buttock and that the defendant's treatment plan met the standard of care.

The action was dismissed.

The self-represented plaintiff brought a motion for contempt against the Children's Aid Society of Toronto, its counsel, and a legal assistant.

The plaintiff alleged contempt based on the transmission of a Pre-disposition Report to the Criminal Injuries Compensation Board, the service of a statement of defence referencing youth court proceedings, and counsel's failure to attend court.

The Superior Court of Justice dismissed the motion, finding that no court order had been breached, the disclosure was made at the plaintiff's request, and the pleadings were privileged and filed under seal.

The plaintiff, a former Crown ward, brought an action against the Children's Aid Society of Toronto and the Crown, alleging negligence, breach of fiduciary duty, defamation, and breach of privacy regarding her time in care and the contents and disclosure of her child-in-care file.

The defendants moved for summary judgment.

The court granted the motions and dismissed the action, finding no evidence to support the plaintiff's claims of wrongful diagnosis or failure to act on abuse complaints.

The court also held that the society's record-keeping was mandated by law, protected by qualified privilege, and that the Crown owed no fiduciary or non-delegable duty regarding the society's day-to-day care or record-keeping.

Following a trial in an estate dispute where the plaintiffs were entirely successful, the court determined the issue of costs.

The plaintiffs sought complete indemnification of $77,406.78 based on offers to settle that were more favourable than the trial result, and the respondent's reprehensible conduct, including breach of fiduciary duty, misappropriation of estate funds, and failure to comply with court orders.

The court agreed that the respondent's conduct warranted more than substantial indemnity costs and awarded the plaintiffs $75,000, to be paid first from the respondent's share of the estate and then personally.

The plaintiff obtained an ex parte Mareva injunction and Certificate of Pending Litigation against the defendants, alleging fraudulent and deficient electrical work during a home renovation and claiming the defendants were dissipating assets to avoid judgment.

On the motion to continue the injunction, the court dissolved the orders, finding the plaintiff failed to make full and frank disclosure regarding available insurance and the extent of deficiencies.

Furthermore, the plaintiff failed to establish a strong prima facie case or a serious risk of asset dissipation, as the evidence of fraud and intent to hide assets was largely speculative and contradicted by the defendants' evidence.

The accused was charged with aggravated assault and assault with a weapon after stabbing two individuals sitting in a vehicle.

The accused claimed he acted in defence of his mother, believing she was about to be run over by the vehicle.

The court rejected the accused's evidence, finding that the vehicle was parked and not moving, and that the accused stabbed the victims out of revenge for earlier physical altercations.

The court concluded the Crown proved beyond a reasonable doubt that the accused was not acting in lawful self-defence and found him guilty of all charges.

The court issued an addendum to its oral reasons for decision regarding child support and section 7 expenses, correcting arithmetical errors and finalizing the arrears calculations.

The court determined the final arrears owing by the respondent to be $43,915.35.

On the issue of costs, the court noted divided success at trial.

The applicant sought costs of $34,043.45, while the respondent sought that each party bear their own costs.

The court ordered the respondent to pay costs of $17,000 to the applicant, enforceable by the Family Responsibility Office.

The Crown defendants moved to strike the plaintiff's civil claim alleging negligence, Charter breaches, and bad faith arising from the Crown's intervention in a private prosecution and the OIPRD's handling of a police complaint.

The Superior Court of Justice granted the motion and struck the claims without leave to amend.

The court found the claims against the Crown were barred by issue estoppel and prosecutorial immunity, while the claims against the OIPRD constituted an impermissible collateral attack and were barred by statutory immunity under the Police Services Act.

The court-appointed Receiver brought a motion to approve a marketing and sale process by tender for undeveloped commercial property.

The respondent debtor brought a competing motion seeking an order directing the Receiver to accept a specific offer from its financial backer.

The court approved the Receiver's proposed process, finding it fair, transparent, and commercially reasonable, and dismissed the debtor's motion, noting the proposed process would optimize the chances of securing the best possible price for all stakeholders.

The plaintiff brought a motion to turn a second action against his real estate agents into a third party proceeding in his main action against the vendors for a failed real estate transaction, or alternatively to consolidate the actions.

The defendants opposed, arguing the motion was premature and should wait until their summary judgment motions were heard.

The court granted the plaintiff's motion, finding that leave to issue a third party claim is mandatory unless prejudice results, and the defendants would not be prejudiced by correcting the procedural error of commencing a separate action.