SCJ 2020

The applicant mortgagee sought a declaration of entitlement to a yield maintenance payment (prepayment of future interest) following the sale of two mortgaged properties by a court-appointed receiver.

The respondent mortgagors and a second mortgagee opposed the claim, arguing the mortgages were opened by the receiver's actions, triggering the equity of redemption, and that the payment offended the anti-deprivation rule and the Interest Act.

The Superior Court of Justice held that the mortgages remained closed, the receiver's actions did not constitute a realization on the security, and the mortgagee was entitled at common law to the future interest to the end of the term.

The court declared the applicant entitled to $1,473,141.82.

The applicant brought a motion seeking to strike the respondent's pleadings, and for spousal support retroactive to the date of separation, with annual indexing.

The court declined to strike the respondent's pleadings, deeming it a remedy of last resort, but ordered the respondent to comply with prior orders for financial disclosure and obtaining a civil divorce, and to cooperate with the applicant's request for a Talaq.

The court imputed an annual income of $100,000 to the respondent and $15,000 to the applicant, and ordered temporary spousal support of $2,600 per month, retroactive to May 1, 2020.

The request for indexing spousal support was denied as it was a temporary order.

The applicant sought an extension of time to file her electoral campaign return under the Canada Elections Act.

The initial delay was caused by a family illness and the pandemic, and a subsequent attempt to file was thwarted by a technical error on the website, resulting in the return being one day late.

The respondent did not oppose the application.

The court found the failure to file was due to inadvertence and not deliberate or a lack of due diligence, and granted the extension.

The plaintiff brought an ex parte motion for an order validating and substituting service on the defendants, Guyana National Newspapers Limited (GNNL) and Mark Anthony Devonish, due to the impracticality of personal service amidst the COVID-19 pandemic.

The court granted the order, dispensing with service of the motion itself and ordering substituted service by email for all future pleadings and documents.

No costs were ordered.

A case management conference was held to review the progress of the action.

The parties reported compliance with several steps in the established timetable, including the delivery of pleadings, supplementary affidavits of documents, and written examination questions.

However, due to the volume and scope of the written questions, the parties requested an adjournment to assess the time needed to respond.

The court adjourned the conference to allow the parties to confer and propose a variation to the timetable.

The defendants (plaintiffs by counterclaim) brought an urgent motion for interim injunctive relief to stop the plaintiffs and their principals from engaging in a relentless campaign of online harassment and defamation via Instagram.

The dispute originated from a failed transaction involving luxury handbags and watches, which previously led to ex parte Mareva and Anton Piller orders against the defendants.

The court found that the principals of the plaintiff corporation had posted highly defamatory statements, threats, and images obtained from the execution of the court orders.

Applying the stringent test for defamation injunctions, the court granted the requested relief, ordering the removal of the posts and restraining further contact and publication.

The applicants, who were in pretrial detention, brought an application for a stay of proceedings or damages, alleging that COVID-19 restrictions at the detention centre violated their rights.

The Crown sought summary dismissal of the application under Rule 34.02 of the Criminal Proceedings Rules.

The court found that the restrictions were reasonable and necessary responses to the pandemic, comparable to restrictions faced by the general public.

Concluding there was no reasonable prospect of success, the court summarily dismissed the application.

The plaintiffs brought a motion in writing on consent for an order requiring the defendants to satisfy undertakings and requiring two non-party banks to produce documents.

The court dismissed the motion, finding that a production order against non-parties under Rule 30.10 cannot be granted merely on the consent of the existing parties.

The moving party must serve the non-parties with notice and provide evidence satisfying the requirements of Rule 30.10.

The dismissal was without prejudice to the plaintiffs' ability to bring a fresh, compliant motion.

C.W., charged with second-degree murder, applied for bail.

The Crown conceded the primary ground but raised concerns on the secondary and tertiary grounds, particularly regarding public confidence in the administration of justice given the gravity of the offence and the applicant's disrespectful attitude during his police interview.

The court found the proposed sureties and release plan adequate, considering the applicant's minor and dated record, aboriginal status, and the application of Gladue factors.

The court concluded that detention was not necessary to maintain public confidence, and granted bail with specific conditions including house arrest and substance abuse treatment.

The applicants brought an urgent motion for interim custody of a four-year-old child and an order prohibiting the respondent from removing the child from Essex County.

The court reviewed the request under the COVID-19 pandemic protocol for suspended court operations.

The triage judge found that the motion met the definition of an urgent family law event as it dealt with the well-being and potential wrongful removal of a child, and ordered that the motion proceed by conference call.

The moving party mother brought an urgent motion seeking alternate week residency of the parties' child after the responding party father cancelled her court-ordered access due to the COVID-19 pandemic.

The court applied the urgency criteria from the Chief Justice's Notice to the Profession and determined that the mother's allegations of wrongful retention of the child met the definition of urgency.

The court directed that the motion proceed and set a timetable for the exchange of materials.

The applicant mother brought an urgent motion to suspend the father's in-person access to their nine-year-old son due to concerns about COVID-19 and the father's adherence to social distancing protocols.

The court, acting as Triage Judge, denied authorization for an urgent hearing, emphasizing the presumption that existing parenting orders should continue, subject to necessary COVID-19 precautions.

The court stressed the importance of maintaining parental relationships for the child's well-being during the crisis and found the mother had not established the father's failure to adhere to appropriate protocols.

The Children's Aid Society of Ottawa brought a motion for summary judgment seeking a finding that S.L. was in need of protection and placement in extended Society care for adoption.

The mother consented to the plan, but the father opposed, seeking S.L.'s return to his care.

The court, relying on previous judicial findings regarding the parents' violent relationship and non-compliance with court orders, found that the father had not raised a genuine issue for trial.

The court determined that S.L. was in need of protection due to the risk of emotional harm from exposure to domestic violence and that adoption was in her best interests, ensuring permanency, cultural connection, and stability.

The Society's motion was granted for S.L., while the father's opposition was dismissed.

This decision addresses the issue of costs following a professional liability claim where the plaintiffs sought over $16 million in damages but were ultimately awarded only $2,000 in nominal damages for breaches of fiduciary duty by the defendants.

The court determined that the defendants were the successful parties, having largely resisted the substantial monetary claim.

Despite findings of serious fiduciary duty breaches against the defendants (a law firm and a former in-house counsel), the court awarded costs to the defendants, but reduced the quantum by over 25% to $925,000 to reflect the seriousness of their misconduct.

The accused was charged with aggravated sexual assault, uttering death threats, and choking following a violent attack on a stranger walking home at night.

The attacker dragged the victim, repeatedly punched her, strangled her to the point of unconsciousness, and sexually assaulted her.

The court found the Crown proved identity beyond a reasonable doubt based on compelling DNA evidence and the victim's physical description.

The court also found the victim was wounded and her life was endangered by the strangulation.

The accused was found guilty on all counts.

The applicant sought a declaration that the respondent wrongfully retained their four children in Ontario under the Hague Convention and an order for their return to Melbourne, Australia.

The respondent did not dispute the applicant's custodial rights or Australia as the children's habitual residence, but argued exceptions under Article 13(a) (consent/acquiescence) and 13(b) (grave risk of harm).

The court found no unequivocal consent or acquiescence by the applicant and determined that the alleged past abuse did not meet the high standard for grave risk of harm or an intolerable situation.

The application was granted, and the children were ordered to be returned to Australia.

The plaintiff railway company brought an ex parte motion for an interim injunction to remove protesters blocking its main rail line.

The protesters were acting in solidarity with the Wet'suwet'en in British Columbia.

The court applied the RJR-MacDonald test and found a serious issue to be tried regarding trespass and tortious interference.

The court concluded the plaintiff suffered irreparable harm due to delayed freight and passenger trains, and the balance of convenience favoured granting the injunction as the protest was on private property.

The interim injunction was granted for 10 days.

The offender, acting as the Executive Director of a charitable organization, defrauded her employer of $8,491.64 by using a corporate credit card for personal expenses and uttering forged documents.

Following a jury conviction, the court considered the offender's significant related criminal record, the breach of trust, and the impact on the vulnerable consumers of the charity.

The court sentenced the offender to three years in custody, along with restitution, a fine in lieu of forfeiture, and a 20-year prohibition on employment involving authority over the property of others.

The plaintiff, the Ontario Securities Commission, moved for summary judgment seeking a declaration that the transfer of a Welland home from the defendants, a husband and wife, to the wife alone was a fraudulent conveyance intended to defeat creditors.

The husband owed an outstanding fine to the plaintiff for breaches of the Securities Act.

The court found that the transfer was made for nominal consideration and with the acknowledged intent to protect the property from creditors.

The court granted summary judgment, declaring the conveyance fraudulent and void, and alternatively found that the husband retained an interest in the property via resulting and constructive trusts.

This endorsement addresses two motions: a charging order sought by Sutherland Law (former counsel for the defendant) for unpaid legal fees, and a motion for directions by the plaintiff regarding the calculation of proceeds from a property sale as per a prior judgment.

The court dismissed the charging order motion, finding no existing fund in the defendant's favour after applying the judgment's formula.

The court accepted the plaintiff's calculations, which determined the defendant's share to be nil, and ordered costs against Sutherland Law and the defendant.