SCJ 2020

The appellant insurer appealed an arbitrator's decision in a priority dispute regarding Statutory Accident Benefits.

The arbitrator found that the appellant's notice of termination for non-payment of premiums was defective because it failed to include an address where the insured could pay the outstanding amount, as required by O. Reg. 777/93.

Applying the new standard of review framework from Vavilov, the Superior Court held that the appellate standard applied to statutory appeals from insurance arbitrations.

The court upheld the arbitrator's decision on a correctness standard, confirming that strict compliance with the statutory notice requirements is necessary to unilaterally terminate an insurance policy.

The parties sought costs following motions primarily concerning financial disclosure and an accounting of children's education funds.

The court noted the long history of the hard-fought case and the difficulty in evaluating success, as both parties took unreasonable positions on certain issues.

The court reserved the costs of the respondent's disclosure motion to the trial judge, who would be best positioned to assess its necessity.

However, the court awarded the applicant modest costs of $750 for his successful cross-motion to obtain an accounting of the education funds.

On a Crown application in a judge-alone sexual offence trial, the court considered whether count-to-count evidence from two complainants and voir dire evidence from a third witness were admissible as similar fact and discreditable conduct evidence.

Applying the governing balancing framework, the court held the evidence was reasonably capable of belief, there was no evidence of actual collusion, and the surrounding circumstances demonstrated a sufficiently connected pattern of conduct relevant to actus reus, the accused's position of trust or authority, and the mens rea for sexual exploitation.

The court found the potential for moral and reasoning prejudice was reduced in the judge-alone, multi-count context and that the probative value outweighed the prejudicial effect.

The evidence was admitted.

The plaintiffs brought actions in debt against a lawyer and moved for summary judgment against both the lawyer and the law firm he shared space with, alleging they were partners or that the firm held him out as a partner.

The court granted summary judgment against the lawyer for the unpaid loans.

However, the court dismissed the claims against the law firm, finding that the lawyer was a sole practitioner and not a partner in fact.

Furthermore, while the lawyer may have been held out as a partner, the plaintiffs failed to prove they extended credit in reliance on that representation.

The court granted a 'boomerang' summary judgment dismissing the claims against the law firm despite the lack of a cross-motion.

The moving party brought a motion for a temporary order granting her exclusive possession of the matrimonial home and custody of the children.

The parties had been living separate and apart under the same roof for over a year.

The moving party alleged that the living arrangement had become unbearable due to tension and verbal abuse.

The court found that while there was tension and stress in the home, it did not rise to the level of warranting the dramatic and highly prejudicial effect of excluding the responding party from the home at this time.

The motion was dismissed.

The parties separated and the mother subsequently denied the father access to their three children following allegations that he and his mother physically assaulted the oldest child.

The father, who was criminally charged regarding the oldest child, sought interim access to the two younger children.

The mother argued access should be supervised pending a child protection investigation.

The court found no evidence of risk to the younger children and ordered graduated, unsupervised interim access for the father.

The plaintiff brought an ex parte motion on the day of closing for leave to issue a certificate of pending litigation against the subject property.

The dispute arose over whether the newly constructed home required a Tarion warranty.

The court dismissed the motion, finding that the equities favoured the defendants, as damages would be an adequate remedy and the plaintiff had not sought an extension of the closing date.

The appellant appealed his summary conviction for assaulting his former wife, arguing the trial judge misapplied the W.(D.) test for credibility and created a reasonable apprehension of bias through an off-hand comment to defence counsel.

The Superior Court of Justice dismissed the appeal, finding the trial judge properly resolved the conflicting evidence and did not unevenly scrutinize the testimony.

The court also held that the single off-hand comment did not meet the threshold for establishing a reasonable apprehension of bias.

The applicant sought costs following a successful family law trial where the court terminated the respondent's access to the children and awarded retroactive child support.

The respondent failed to file written costs submissions despite being granted extensions.

The court found that while the respondent's desire to pursue access did not warrant full recovery costs, his unreasonable conduct, including denying criminal convictions and failing to produce financial disclosure, lengthened the trial.

The court awarded the applicant costs fixed at $14,000.

The defendants requested a review of the plaintiff's Statement of Claim under Rule 2.1.01 of the Rules of Civil Procedure.

The court found the claim, which alleged the defendants attempted to sell land to the plaintiff that the plaintiff had already purchased, appeared frivolous, vexatious, or an abuse of process on its face.

The court directed the registrar to give notice to the plaintiff that it is considering dismissing the action and stayed the proceeding pending the outcome of the written hearing.

The offender pleaded guilty to possessing a loaded prohibited firearm, robbery with a firearm, and possession of a firearm while prohibited.

The offences occurred when the offender and an accomplice robbed a victim of a gold chain on a busy street, during which the firearm was discharged.

The court weighed the offender's significant criminal record and the aggravating factors of gun violence in a public place against mitigating factors including a guilty plea, remorse, and harsh pre-sentence custody conditions.

A global sentence of 9 years was imposed, reduced by 57 months for pre-sentence custody and harsh conditions.

The respondent brought a motion to transfer an estate application from Ottawa to Newmarket.

The applicant, who commenced the application in Ottawa, opposed the transfer.

The court considered the factors under Rule 13.1.02(2) of the Rules of Civil Procedure and found that the convenience of the parties was equally balanced.

The court also noted that keeping the matter in Ottawa would trigger mandatory mediation under Rule 75.1, which would benefit the parties.

The motion was dismissed as the respondent failed to establish that Newmarket was a significantly better venue.

The plaintiff in a wrongful dismissal action brought a motion under Rule 30.06 of the Rules of Civil Procedure for an order requiring the defendant to serve a further and better affidavit of documents.

The court applied the test from Bow Helicopters, noting that a motion for a further and better affidavit requires evidence that specific documents exist that have not been produced, rather than mere speculation.

The court found that the defendant had complied with its production obligations and that the plaintiff failed to provide evidence of specific missing documents.

The motion was dismissed, and the plaintiff was directed to resume the examination for discovery of the defendant's representative.

The plaintiff mortgagee sought summary judgment on multiple defaulted mortgages granted to the defendants to fund a joint venture land development project.

The defendants argued the mortgages were unenforceable due to an oral agreement that the loans would only be repaid from future lot sales, and disputed the amounts owing.

The court granted summary judgment, holding that the alleged oral agreement was barred by the Statute of Frauds and the doctrine of part performance did not apply.

The court also declined to stay the enforcement of the judgments under Rule 20.08, finding the defendants' counterclaims lacked merit and the prejudice to the plaintiffs in delaying recovery was significant.

The defendants brought a motion to consolidate several debt enforcement actions with a related action they commenced against the plaintiff and others, arising from a failed joint venture.

The court dismissed the motion, finding that the debt enforcement actions were capable of summary determination and that the balance of convenience did not favour consolidation, as it would unnecessarily delay the adjudication of the debt claims.

The appellants (vendors) appealed a Small Claims Court decision awarding the respondent (purchaser) $17,488.27 in damages for a breach of warranty in a residential real estate transaction.

The trial judge found the vendors failed to disclose an HVAC rental contract and removed fixtures prior to closing.

The Superior Court of Justice applied the palpable and overriding error standard of review and found no basis to interfere with the trial judge's findings of fact.

The appeal was dismissed with costs awarded to the respondent.

The plaintiff vendors brought a summary judgment motion against the defendant purchasers for damages arising from a failed residential real estate transaction.

The purchasers had refused to close, arguing that four utility easements registered on title were valid requisitions that the vendors failed to remove.

The court found that the easements were standard minor utility easements explicitly excepted under paragraph 10 of the Agreement of Purchase and Sale and were clearly shown on the survey attached to the agreement.

The court granted summary judgment to the vendors, finding the purchasers breached the contract, and awarded $430,000 in damages based on the loss from the property's resale.

The moving party brought a motion to strike the responding party's motion to change a final parenting order, arguing that the responding party had failed to pay a previous costs award of $20,201.

Alternatively, the moving party sought an order requiring the responding party to post $60,000 in security for costs.

The court dismissed the motion, finding that the unpaid costs were subject to a consumer proposal under the Bankruptcy and Insolvency Act, and therefore did not constitute wilful non-compliance.

The court also declined to order security for costs, concluding that the responding party's motion raised genuine issues regarding the child's best interests and that such an order would act as an unjust financial roadblock.

The plaintiff brought a motion to exclude the defendant's testimony at trial or, alternatively, for a jury instruction regarding improper inferences.

The plaintiff raised concerns about photographs of vehicle damage and alleged racial bias in jury selection and defence strategy.

The court dismissed the motion to exclude the defendant's testimony, finding it relevant to causation and damages.

However, the court excluded the vehicle photographs due to lack of probative value (cropped images).

The court also addressed the racial bias concerns, finding no evidentiary basis for exclusion of testimony on that ground, but affirmed the importance of jury instructions on cultural backgrounds and cautioned against prohibited reasoning regarding accident impact and injury severity.

The parties separated in 2015 and continued to reside in the jointly owned matrimonial home.

At trial, the court determined the parties' net family property, including the division of contents, vehicle valuation, and date of marriage deductions.

The respondent was ordered to pay an equalization payment and half of the post-separation capital expenses for the home, but not utilities.

The applicant was granted exclusive possession of the home pending its sale and retained a right of first refusal to purchase it.