SCJ 2020

The individual defendants brought a motion to strike claims against them, arguing that the plaintiff's amendment to its statement of claim improperly withdrew an admission regarding the timing of alleged conduct, and that the claim failed to plead the required particulars for negligent misrepresentation.

The court held that the dates provided in the plaintiff's response to a demand for particulars were factual pleadings, not deliberate admissions, and could be amended without leave.

However, the court found that the plaintiff failed to plead the essential elements of negligent misrepresentation against the individual defendants.

The negligent misrepresentation claim was struck.

The applicant sought a declaration that all intellectual property used by the debtor in its business was the property of the debtor and subject to the applicant's security interest.

The debtor's directing mind claimed the trademarks had been assigned to a related company prior to the receivership.

The court found the directing mind lacked credibility, noting the assignments were not disclosed to lenders, were for nominal consideration, and the debtor continued to use and renew the trademarks.

The court declared the trademarks were the property of the debtor and, in the alternative, that the assignments were void as fraudulent conveyances.

A cross-motion by the related company for disgorgement of funds was dismissed.

The plaintiff contractor purchased topsoil from the defendant supplier for a municipal project.

Due to project delays, the plaintiff waived its right to test the soil before delivery and signed a contract containing an exclusionary clause stating the defendant would not be responsible for the quality of the material once it left the facility.

The delivered soil did not drain properly and had to be replaced.

The plaintiff sued for breach of contract, relying on the implied condition under s. 14 of the Sale of Goods Act that goods must correspond with their description.

The court dismissed the action, finding that the exclusionary clause was clear and unambiguous, and that the plaintiff had knowingly assumed the risk by waiving the testing to avoid further project delays.

At a family law case conference, the court reviewed the litigation history and the respondent's Answer, which improperly sought to re-litigate issues already decided in a previous trial.

The court struck the respondent's Answer for being deficient and ordered him to file a new, properly pleaded Answer within 30 days.

To promote the primary objective of the Family Law Rules, the court also issued procedural directions for a one-day focused hearing based on affidavit evidence and cross-examination, and ordered the respondent to pay $350 in costs for the case conference.

The applicant brought a motion to change seeking section 7 expenses, ongoing child support, and an increase in spousal support following a change in their son's hockey team status.

The respondent brought a cross-motion to clarify the commencement date of child support from a previous order.

The court ordered the respondent to pay a proportionate share of section 7 expenses incurred while the son played for a different team, and varied the previous order to include child support for the month of April.

The claims for ongoing child support during the hockey season and increased spousal support were dismissed.

The respondent's motion for clarification was also dismissed as the previous order was unambiguous.

The applicant wife sought spousal support, child support, and a divorce, while the respondent husband sought child support, equalization, and a restraining order.

The parties had previously agreed to sever the divorce and transfer a portion of the husband's pension to the wife.

The court found the wife was entitled to prospective spousal support of $623 monthly due to her disability and financial need, but denied retroactive support to avoid hardship to the husband.

The husband's claims for child support and repayment of alleged loans were dismissed.

The court also ordered the wife to list her properties in the Philippines for sale, with the proceeds to be shared equally.

The Crown applied to quash a subpoena issued by the respondent to an assistant Crown attorney.

The respondent, who was facing murder charges, sought to compel the prosecutor to testify at a hearing regarding alleged prosecutorial misconduct, after a witness claimed the prosecutor had coached him to change his evidence.

The court granted the application to quash the subpoena, finding that the respondent failed to meet the stringent test of demonstrating that the prosecutor's evidence was necessary, as another police officer was present during the relevant meetings and could testify to the events.

The plaintiffs sued their former solicitor and his law firm for professional negligence arising from his representation in three underlying actions.

The court found that the solicitor breached the standard of care in the primary underlying commercial litigation by failing to obtain relevant evidence, failing to bring a motion to strike a certificate of pending litigation, and failing to communicate with his clients and opposing counsel.

The court conducted a 'trial within a trial' and concluded that but for the solicitor's negligence, the plaintiffs would have avoided substantial legal fees.

The plaintiffs were awarded $425,987 in damages.

The appellant father appealed a trial decision granting sole custody of the parties' child to the respondent mother and ordering him to pay child support based on an imputed income of $420,000.

The mother cross-appealed, seeking to impute an even higher income to the father.

The Superior Court of Justice dismissed both the appeal and cross-appeal, finding no palpable and overriding error in the trial judge's best interests analysis for sole custody.

The court also upheld the imputation of income, noting the father's failure to provide adequate financial disclosure regarding his solely-owned business and the significant discrepancy between his reported income and his lifestyle and expenditures.

The applicant brought a Garofoli application seeking to exclude evidence obtained from his cell phones, arguing that the search warrant was issued based on an Information to Obtain (ITO) that relied on a search conducted by French police without verifying its legality.

The court found that the ITO contained sufficient credible and reliable evidence, including corroborative information from the French authorities, to establish reasonable and probable grounds for the warrant.

The court held that an affiant is not required to establish foreign law compliance as a precondition for a search warrant in Canada.

The application to exclude evidence under section 8 of the Charter was dismissed.

Following the dismissal of the plaintiffs' claim on a motion for summary judgment, the defendants sought costs on a substantial indemnity scale against both the estate and the estate trustees personally.

The court found that the plaintiffs pursued unsupported fraud allegations and engaged in unnecessarily aggressive and disproportionate conduct throughout the litigation.

Costs were fixed at $199,602.46 on a substantial indemnity scale, payable by both the estate and the trustees personally.

The court also ordered a conference call to address allegations that one of the trustees fraudulently conveyed her home to avoid the costs order.

The accused, a massage therapist, was charged with sexually assaulting two female clients during therapeutic massages.

The Crown brought an application to use the evidence of each complainant as mutually reinforcing similar fact evidence.

The court granted the application, finding the probative value of the similar fact evidence eclipsed any potential prejudice.

Applying the W.(D.) framework for credibility contests, the court rejected the accused's denials and found that the Crown had proved beyond a reasonable doubt that the sexual touching occurred without consent.

The accused was found guilty on both counts.

The defendants, withdrawn partners of an insurance defence law firm, brought a motion under Rule 45.02 for an order directing the plaintiff partnership to pay their capital repayment amounts into court pending trial.

The plaintiffs had sued the defendants for over $7 million for breach of contract and fiduciary duty, asserting a right of set-off against the capital.

The court found that the capital account constituted a specific fund and that there was a serious issue to be tried.

However, the court dismissed the motion for payment into court because the defendants failed to establish a risk of dissipation, instead ordering the plaintiffs to provide quarterly financial disclosure and not expose the capital to differential risk.

The applicant sought costs of $28,500.86 following a successful motion to determine the venue of the family law proceeding.

The respondent argued for costs of $6,500, payable at the conclusion of the case.

The court found the applicant's claimed costs excessive and noted her unreasonable conduct in unilaterally moving the children without notice.

The court fixed costs at $6,500, payable 30 days after the final disposition of the application.

The respondents, the applicant's former spouse and his father, brought motions for summary judgment to determine the validity of a $950,000 mortgage registered against a property owned by the former spouse.

The applicant argued the mortgage was a sham designed to defeat her equalization claim.

The court found that the father had advanced the funds to construct a home on the property and that the applicant had not signed the mortgage acknowledgment under duress.

The court granted partial summary judgment, declaring the mortgage valid and ordering the release of $950,000 from the sale proceeds to the father.

Two competing teams of legal counsel sought carriage of a proposed securities class action against CannTrust Holdings Inc. and other defendants for alleged misrepresentations regarding unlicensed cannabis production.

The court granted carriage to the Consortium team, finding that the competing TGF/RG team had a disqualifying conflict of interest because they excluded RBC Dominion Securities Inc., a current client of one of the firms, as a defendant.

The court held that excluding a necessary defendant to prefer a client's interests prejudiced the proposed class members by reducing potential recovery.

The accused was charged with possession for the purpose of trafficking.

He brought pre-trial Charter applications alleging violations of his s. 8 and s. 10(b) rights.

The court found the search of a co-accused's cellphone and the tele-warrant for the accused's residence were lawful under s. 8.

However, the court found a serious violation of the accused's s. 10(b) rights because police delayed implementing his right to counsel and elicited self-incriminating statements and assistance in locating drugs during the search.

Applying the Grant framework, the court excluded the statements and the drugs found at the residence under s. 24(2).

The applicant was largely successful at a trial on a motion to change child support and sought costs of over $193,000.

The respondent argued the fees were excessive and disproportionate.

The court considered the parties' offers to settle, finding the applicant's offers triggered full recovery cost consequences.

After adjusting the applicant's counsel's hourly rate and hours claimed to be more proportional to the respondent's, the court fixed costs at $130,000.

The court also ordered that the costs award is enforceable by the Family Responsibility Office as it relates entirely to child support.

The four co-accused, charged with first degree murder, brought an application to be seated at counsel table rather than in the prisoner's box during their trial.

The Crown opposed the application, citing courtroom security and the default practice of using the prisoner's box.

The court balanced the security concerns, which required six escort officers if the accused sat at counsel table, against trial fairness considerations, including the need for effective communication between the accused and their counsel during a lengthy trial.

The court granted the application, finding that the accused met their onus and that sitting at counsel table would facilitate communication and ensure the accused were viewed as individuals by the jury.

The accused was charged with five counts of counselling the commission of offences that were not committed, including counselling the murder of his wife, planting a gun and drugs in her car, and the murder of her family lawyer.

The Crown's case relied heavily on recordings of the accused's conversations with a police agent and an undercover officer posing as a hitman.

The accused claimed the police altered the recordings to frame him.

The court rejected the accused's evidence, finding the recordings accurate and the accused's claims baseless.

The court found the accused guilty on all five counts, concluding he actively induced the undercover officer to commit the offences and intended for them to be carried out.