SCJ 2019

The defendant brought a pre-trial Charter application seeking to exclude evidence obtained pursuant to various wiretap authorizations, general warrants, and search warrants, alleging violations of his s. 8 Charter rights.

The Crown conceded a s. 8 breach regarding a May 3, 2016 general warrant due to an error in identifying the specific condominium unit.

The court found that the other authorizations and warrants were validly issued and that the police did not act negligently or in bad faith.

Applying the Grant framework, the court concluded that the evidence obtained from the May 3, 2016 general warrant should not be excluded under s. 24(2) of the Charter, as the police acted in good faith and the evidence was highly reliable and important to the prosecution.

The application was dismissed.

The plaintiff brought a motion to compel the defendant to provide further affidavit of documents and permit additional examinations for discovery, eight years after the action commenced and after it was set down for trial.

The defendant opposed, arguing the plaintiff required leave and that the request was untimely and disproportional.

The court found that a pre-trial endorsement by Justice Doyle constituted leave.

It determined the requested documents, concerning other clients using the same IP address and related performance issues, were relevant to the plaintiff's negligence claim.

Despite the significant delay and potential for trial adjournment, the court ordered disclosure, with the plaintiff bearing the initial costs of retrieval, to mitigate proportionality concerns.

Costs for the motion were not awarded to the successful plaintiff due to the delay and non-compliance with case management orders.

The plaintiff noted several defendants in default.

The Vaughan Defendants and Antonio Gentile brought motions to set aside the noting in default.

The plaintiff argued that a motion to strike the statement of claim was not a step in defending the action, and that statements of defence were still required.

The court found that serving a notice of motion to strike the claim constitutes a step in the proceeding, making the noting in default irregular.

Additionally, the defendants met the criteria under Rule 19.03 for setting aside default.

The court set aside the noting in default for all defendants and awarded partial indemnity costs of $7,000 to both the Vaughan Defendants and Antonio Gentile, payable by the plaintiff.

The defendants brought a motion to set aside a noting in default and a default judgment, arguing they were never served with the statement of claim.

The plaintiff's counsel failed to appear for the motion despite multiple adjournments and personal service on the plaintiff.

The court granted the defendants' motion, finding that the procedural irregularities and prejudice to the defendants warranted setting aside the default judgment, allowing the action to proceed on its merits.

Costs were awarded to the defendants.

The applicant father brought a motion seeking an order to permit him to travel with the parties' child to Croatia for three weeks.

The respondent mother consented to a two-week trip but opposed the three-week duration, citing concerns about the child's routine, lost parenting time, and adjustment to Junior Kindergarten.

The court, applying the "best interests of the child" test, found no plausible risk in the three-week trip and emphasized the child's opportunity to connect with his heritage and extended family.

The motion was granted, allowing the father to travel for three weeks, with conditions for the mother to have additional time upon return.

The father was denied costs due to his unilateral booking of the trip and delay in bringing the motion.

The accused, charged with drug trafficking, brought a pre-trial application seeking disclosure of confidential informant handler notes and files to prepare for a Garofoli application.

The Crown resisted, arguing the materials were not part of the investigative file and could identify the informants.

The court dismissed the application, holding that the requested materials are not routinely disclosed as part of the investigative file and the accused failed to meet the threshold showing of relevance required to compel their disclosure.

Dimytri Ingram-Piruzevski pleaded guilty to manslaughter following the fatal stabbing of Keegan Blyth during a drug transaction.

Ingram-Piruzevski, who armed a youth with a lethal weapon, was sentenced to 7 years imprisonment, reduced to a net 4 years and 9 months after credit for pre-sentence custody and lockdown conditions.

The court balanced significant aggravating factors, including the context of a drug deal, arming a minor, and flight from the scene, against mitigating factors such as the defendant's youth, lack of prior record, early guilty plea, and cooperation with the police.

Ancillary orders for DNA, a lifetime weapons prohibition, and forfeiture of seized items were also imposed.

R.D., a 16-year-old, pleaded guilty to 10 counts related to three jewellery store robberies and one attempted robbery.

The Crown applied for an adult sentence under Section 64(1) of the Youth Criminal Justice Act, arguing that the presumption of diminished moral blameworthiness was rebutted and a youth sentence would not sufficiently hold R.D. accountable.

The defence sought the maximum youth sentence of three years.

The court found that R.D. demonstrated sufficient maturity at the time of the offences, which were well-planned and violent, and that a youth sentence would not be sufficient for accountability.

R.D. was sentenced as an adult to a global term of 7 years imprisonment, less credit for pre-sentence custody.

The applicant sought relief regarding title to property and a right of way, which involved the estate of a deceased person.

The court addressed preliminary issues concerning insufficient notice to the deceased's grandchildren and the lack of a representative for the respondent estate.

The application was adjourned, and the applicant was directed to provide clearer, more comprehensive notice to the grandchildren, offer to cover legal advice expenses, and make further efforts to locate all beneficiaries.

The court declined to allow the proceeding to continue without an estate representative at this stage due to evidentiary deficiencies and the need for proper representation of the estate's interests.

The applicant, a minority shareholder, brought a motion to strike certain paragraphs from the respondent's affidavit in an oppression application.

The court struck paragraphs containing legal argument and conclusions, finding them inappropriate for an affidavit.

However, the court deferred the decision on paragraphs challenged for relevance and character impugnment to the judge hearing the main application, emphasizing that relevance is best assessed in the full context of the application.

The plaintiff, a grieving father, sued his son's mother, a funeral home, and its director for breach of contract, deceit, and intentional infliction of mental distress after being excluded from his son's funeral.

The defendants brought a summary judgment motion seeking dismissal of the lawsuit.

The court dismissed all claims, finding no enforceable contract between the parties, no false misrepresentation to support deceit, and insufficient evidence of subjective intent to cause psychological harm for intentional infliction of mental distress, despite acknowledging the defendants' callous and insensitive conduct.

This costs endorsement followed a trial where claims of negligence against a regional municipality were dismissed, along with related Family Law Act claims and a cross-claim.

The successful municipality sought partial indemnity costs.

The court considered factors under Rule 57.01, including the complexity, importance, and length of the 23-day trial, as well as the conduct of counsel and the financial circumstances of the unsuccessful plaintiffs.

The court found the municipality's requested costs somewhat high and the opposing parties' proposals somewhat low.

A total partial indemnity costs award of $365,000.00 (inclusive of fees and disbursements) was made in favor of the municipality, apportioned 65% to the plaintiffs and 35% to the co-defendant, whose interests were largely aligned with the plaintiffs due to a Mary Carter agreement.

The plaintiff developer sued the defendant municipality for negligent misrepresentation regarding a rezoning application for a condominium project.

During the rezoning process, the municipality failed to inform the developer about a large, high-pressure water main located in an adjacent easement, mistakenly advising that it was a trunk sewer.

The developer relied on this information and proceeded with the purchase and development.

At the site plan approval stage, the municipality's engineers objected to the proposed underground parking garage due to the risks posed to the water main, forcing the developer to redesign the project and incur significant delays and costs.

The court found that the municipality owed a duty of care to the developer, breached that duty through negligent misrepresentations, and that the developer reasonably relied on those representations.

The court awarded the developer $4,496,384 in damages and pre-judgment interest.

The Ontario Superior Court of Justice ruled on the applicable exchange rate and prejudgment interest following a judgment where defendants were found to have breached fiduciary duties and conspired to conceal assets.

The court applied the default exchange rate under s. 121(1) of the Courts of Justice Act, which mandates conversion at the date of payment, rejecting the defendants' argument for an earlier transaction date.

The court found that a change in exchange rate alone does not constitute inequity to depart from the default rule.

Prejudgment interest was awarded on the damages and disgorgement amounts from the date the cause of action arose (August 15, 2012), at a rate of 1.3%, in accordance with s. 128(1) of the CJA, excluding punitive damages.

This costs endorsement follows a motion brought by House concerning the distribution of insurance proceeds, the application of the equitable doctrine of marshalling, and the garnishment of settlement funds.

The court had previously dismissed House's request for marshalling, ordered pro rata distribution of State Farm funds, and allowed House to garnish 20% of Baird's settlement.

Baird was deemed more successful than House on the garnishment issue and was entitled to costs.

The court awarded Baird $20,000 in partial indemnity costs, inclusive of HST and disbursements, but excluded costs for an affiant who did not act as counsel or make submissions.

The respondent Estate brought a motion to bifurcate the proceeding, seeking a first trial on the validity of a Marriage Contract, separate from other issues including the applicant's claim to set aside the contract, elect equalization, and seek dependant relief.

The applicant opposed, arguing duplication of evidence and prejudice.

The court granted the bifurcation, finding it would lead to a more just, expeditious, and less expensive determination by potentially narrowing issues and promoting settlement, aligning with the culture shift emphasized in Hyrniak v. Mauldin.

The defence applied for a publication ban on the accused's video-recorded statement to the police and a sealing order for information found on electronic devices seized during a search warrant execution.

The media opposed both orders.

The court applied the Dagenais/Mentuck test and found that the defence failed to establish a serious risk to the administration of justice that necessitated a publication ban or sealing order.

The court emphasized the presumption of open court proceedings and the importance of freedom of the press.

Both applications were dismissed, with a temporary extension granted to allow for potential appeals.

The defendant in a personal injury case brought a motion seeking to admit two expert reports and allow two experts to testify.

The plaintiff had previously filed a complaint against the first expert (Dr. Marks) with the College of Physicians and Surgeons, leading the defendant to retain a second expert (Dr. Ford).

The court denied the defendant's request to file Dr. Marks' report and Dr. Ford's report, citing concerns about fairness and the potential for repetitive expert evidence.

However, the court permitted Dr. Marks to testify viva voce, but limited his evidence to observations and testing results, excluding medico-legal opinions.

Dr. Ford was also permitted to testify viva voce, but without reference to Dr. Marks' opinions.

Costs for the motion were reserved to the end of the trial.

This costs endorsement followed a motion concerning the sale of a jointly owned investment property.

Both parties sought costs, with the applicant seeking partial indemnity costs and the respondent seeking substantial or partial indemnity costs.

The court found that success on the underlying motion was mixed, although the applicant was more successful regarding property repairs.

The respondent's offers to settle did not comply with Rule 49 of the Rules of Civil Procedure as they were delivered too late.

Given the mixed success and non-compliant offers, the court determined it was not appropriate to make any costs order.

The applicants, Ms. Stewart and Ms. Bernard, brought motions for security for costs against the respondent, Mr. Fuhgeh, within his motions to set aside previous default orders.

The applicants argued that Mr. Fuhgeh had unpaid costs orders, was impecunious, and that his motions were a waste of time or a nuisance.

The court acknowledged Mr. Fuhgeh's impecuniosity and the unpaid costs, satisfying a factor under Rule 24(13) of the Family Law Rules.

However, the court found that Mr. Fuhgeh's allegations of fraud, concealed conflict of interest, and judicial bias were serious and touched on the administration of justice, requiring a full hearing.

Granting security for costs would stifle Mr. Fuhgeh's access to justice given his inability to pay.

Therefore, the applicants' motions for security for costs were dismissed without prejudice, allowing them to renew their motions or seek other relief once the outcome of Mr. Fuhgeh's motion to set aside the orders is known.