SCJ 2019

The accused pleaded guilty to a serious, planned offence that involved travelling from Kitchener to Vaughan and posed a risk of serious harm to residents.

The accused had a significant criminal record including weapons offences.

Accepting a joint submission, the court sentenced the accused to 1.5 years in jail, consecutive to a sentence already being served, along with a lifetime weapons prohibition and a DNA order.

At a status hearing, the court considered whether to dismiss the plaintiffs' action for delay under Rule 48.14(1) of the Rules of Civil Procedure.

The action, which involved a shareholder dispute, had been commenced in 2012 and was inextricably linked to a separate application to wind up the corporations.

The court found that the plaintiffs failed to provide a reasonable explanation for the delay, having made a strategic decision to await the outcome of the application before proceeding with the action.

Finding that the defendants would suffer prejudice if the action proceeded, the court dismissed the action for delay.

The defendant brought a motion to set aside a default judgment obtained by the plaintiff.

The plaintiff sought an adjournment because its counsel was unable to obtain instructions and intended to bring a motion to be removed from the record.

The court denied the adjournment, finding the defendant would suffer greater prejudice from delay.

On the merits, the court set aside the default judgment, finding the defendant had an arguable defence, moved promptly upon learning of the judgment, and had a reasonable excuse for the default due to internal processing errors and confusing correspondence from plaintiff's counsel.

The court awarded costs to the defendant.

The applicant, charged with firearm offences, brought a Charter application seeking a stay of proceedings or the exclusion of a firearm from evidence.

He alleged that police violated his s. 7 rights by using excessive force (tasering him three times) during his arrest, and his s. 8 rights by unreasonably using a breaching shotgun to enter his residence.

The court dismissed the application, finding that the police's use of the taser was objectively reasonable given the exigent circumstances of the applicant fleeing with a firearm and failing to comply with commands.

The court also found the use of the breaching shotgun was reasonable due to the dynamic and high-risk situation.

The court further held that even if there were Charter breaches, neither a stay of proceedings nor the exclusion of evidence under s. 24(2) would be appropriate.

The children's aid society brought a motion for an interim order to keep a one-year-old child in its temporary care and custody.

The father brought a cross-motion seeking the child's return to his care or placement with the paternal grandparents.

The mother supported the society's motion.

The court found reasonable grounds to believe the child would be at risk of harm if returned to either parent due to domestic violence, substance abuse, and lack of parenting experience.

The court also found that a kinship assessment of the paternal grandparents was incomplete and that placing the child with them would hinder the mother's access.

The society's motion was granted.

The plaintiff, a foreman for a drywall contractor, was summarily dismissed after working for the defendant for several years.

The defendant argued the plaintiff was an independent contractor not entitled to notice.

The court applied the Sagaz test and found the plaintiff was an employee, as he worked exclusively for the defendant, used their tools, and did not share in profits or losses.

The court awarded a 6-month reasonable notice period based on the Bardal factors and found the defendant failed to prove a failure to mitigate.

Damages of $62,780 were awarded.

The moving party (respondent in the main action) brought a motion to set aside a final order for spousal support obtained in his absence at an uncontested trial.

He argued he was unaware of the proceedings and disputed the trial judge's findings regarding the length of cohabitation and his imputed income.

The court dismissed the motion, finding that the moving party deliberately evaded service and ignored the court process to avoid paying spousal support.

The court also found no arguable case on the merits, as the evidence supported a 21-year spousal relationship and the imputed income was appropriate based on his past earnings.

The accused was tried for the second-degree murder of his wife, whose body was found near a gas tank on their property.

The Crown's case was entirely circumstantial, relying on motive, opportunity, and post-offence conduct, including the accused's destruction of his wife's poetry.

The defence argued the victim may have interrupted a gas theft or been killed by an alternate suspect with whom she was having an affair.

The court found the investigation had tunnel vision and failed to adequately explore other possibilities.

Concluding that the accused's guilt was not the only reasonable inference to be drawn from the evidence, the court found the accused not guilty.

The applicant brought a motion for the sale of the jointly owned matrimonial home.

The respondent opposed the sale and brought a cross-motion for exclusive possession and an order transferring the home to their adult son for a fixed price.

The court granted the applicant's motion, finding that the applicant had a prima facie right to sale and the respondent failed to establish a reasonable need to delay the sale for the benefit of the adult children.

The court also dismissed the cross-motion to transfer the home to the son, noting it lacked jurisdiction to compel a sale to a specific party or grant a right of first refusal.

The respondent father brought a Motion to Change to terminate his child support obligations for the parties' adult daughter, who had completed her undergraduate degree in 2012 but continued to pursue a Master's degree and other studies while dealing with mental health issues.

The court applied the Menegaldo factors and found the daughter remained a child of the marriage until May 1, 2016, when she ceased full-time studies.

Applying the D.B.S. factors, the court granted a retroactive adjustment of child support back to May 1, 2016, with any overpayments to be credited against the father's outstanding debts to the mother.

The defendants' motion for summary judgment was previously dismissed.

The plaintiff sought substantial indemnity costs of $38,152.77 for the motion, while the defendants argued for partial indemnity costs of $12,430.00.

The court found that the defendants acted unreasonably in bringing a motion for partial summary judgment that relied on competing affidavits where credibility was at issue.

Pursuant to Rule 20.06 of the Rules of Civil Procedure, the court awarded the plaintiff costs on a substantial indemnity basis, fixed at $29,000.00 inclusive of disbursements and HST.

The offender was sentenced after trial convictions for trafficking a person under 18, deriving a material benefit from trafficking, uttering threats, and assault causing bodily harm arising from prolonged sexual exploitation and violence against a vulnerable teenage complainant.

The court held that, on the offender’s own facts, a sentence above five years was fit, but nevertheless found the five-year mandatory minimum in s. 279.011(1)(b) of the Criminal Code unconstitutional under s. 12 of the Charter because reasonably foreseeable hypotheticals could produce grossly disproportionate sentences.

Applying the Nur/Lloyd framework and considering proposed hypotheticals, the court concluded the provision cast too wide a net and could not be saved under s. 1, particularly in the absence of Crown argument on justification.

The offender received 5.5 years’ imprisonment on the trafficking count after 12 months’ credit, with concurrent sentences on the remaining counts and ancillary orders.

The Attorney General defendants were entirely successful on a Rule 21 motion to strike the self-represented plaintiff's action.

They sought costs of $4,100, despite incurring $12,000 on a partial indemnity basis.

The court noted that the fact costs are sought by salaried Crown Counsel does not affect the quantum.

The court found the requested amount fair and reasonable and awarded costs of $4,100 to the Attorney General defendants.

The defendant, a second mortgagee, brought a motion for summary judgment to dismiss the plaintiffs' action alleging an improvident sale of a property under a power of sale.

The plaintiffs, who held a third mortgage, received nothing from the sale and claimed the defendant failed to obtain fair market value and inflated costs.

The court found that the sale was not improvident, noting the property had been recently exposed to the market, the sale price was supported by appraisals, and the purchaser was ready and willing to close.

The court also held that the plaintiffs had already received an accounting and any further dispute regarding costs should be pursued through the assessment process under the Mortgages Act.

The motion for summary judgment was granted and the action dismissed.

In a child protection proceeding, the mother's lawyer brought a motion to be removed from the record.

The court granted the motion but noted that the Family Law Rules require the filing of confidential, potentially prejudicial evidence that is not shared with other parties and is subsequently removed from the court file.

The court held that a judge who receives such secret information during a solicitor-removal motion should be presumed precluded from presiding over the eventual trial to avoid any reasonable apprehension of bias or procedural unfairness.

Consequently, the judge recused himself from the upcoming trial.

The applicant wife sought equalization of net family property and spousal support, alleging the respondent husband had substantial unreported cash income from his jewellery business.

The court rejected the applicant's expert evidence on hidden income and accepted the respondent's business valuation.

The court applied the presumption of resulting trust to the matrimonial home and a gifted property.

Income was imputed to both parties for support purposes.

The respondent was ordered to pay an equalization payment and ongoing spousal support, with adjustments made for previous advances and overpayments.

The applicant, a successor in title to a property, brought an application to determine the amount owing under a Writ of Seizure and Sale filed against the property by the respondent for her former spouse's spousal support arrears.

The court held that the Writ only secured the spousal support arrears owing as of the date the property was transferred to the applicant, and did not attach to subsequent unpaid pension payments.

The court calculated the total amount owing under the Writ, including interest, and allowed the applicant to set off costs awarded against the respondent in previous litigation.

Following a summary judgment in a class action regarding prepaid payment cards, the court determined the appropriate prejudgment and postjudgment interest to be awarded to the plaintiff class.

The court deferred the determination of a distribution protocol pending the resolution of the defendants' appeal and the plaintiff's cross-appeal.

The court awarded $1,233,753 in prejudgment interest and ordered postjudgment interest at a rate of 3.0% per annum on the total award of $18,063,753.

Following the successful striking of the self-represented plaintiff's libel claim on a Rule 21 motion, the successful police defendants sought costs.

The defendants claimed partial indemnity costs of $11,345.00 but voluntarily reduced their request to $4,000.00 in consideration of the plaintiff's self-represented status and ability to pay.

The court awarded the requested $4,000.00, ordering it payable in any event of the cause rather than forthwith, as the broader action was continuing.

In a proposed class action arising from data breaches, the plaintiffs brought a motion seeking production of Yahoo's database of 16.9 million Canadian users to cross-examine the defendants' expert on the certification motion.

The court dismissed the motion, finding that the plaintiffs failed to meet the onus of explaining how access to the database was relevant to the certification motion and that the request was disproportionate.