SCJ 2020

Following the dismissal of the defendants' motions to transfer and consolidate four Small Claims Court actions, the self-represented plaintiffs sought costs on a substantial indemnity scale for their time and disbursements.

Applying the principles from Fong v. Chan, the court held that the plaintiffs were not entitled to costs for their time because they failed to demonstrate that they had forgone remunerative activity.

The court awarded the plaintiffs their disbursements only.

The plaintiffs, two major banks, sued to recover funds wired to the defendant money services business as a result of a fraud perpetrated by third parties.

The defendant brought a motion for summary judgment, arguing it received the funds without knowledge of the fraud and changed its position in good faith by arranging equivalent payments in Chinese yuan to a foreign account.

The court dismissed the motion, finding genuine issues for trial regarding whether the defendant actually changed its position in good faith, given conflicting expert evidence on its anti-money laundering compliance and the lack of direct evidence regarding the foreign exchange transactions.

The plaintiffs sued their former law firm and former in-house counsel for professional negligence and breach of fiduciary duty arising from a commercial transaction and subsequent settlement.

The court found that the former in-house counsel breached his fiduciary duty by acting for the opposing party at a mediation, and that the law firm breached its standard of care by failing to warn the plaintiffs of this conflict.

The court also found the law firm breached its fiduciary duty by obtaining an ineffective conflict waiver.

However, the court concluded that these breaches did not cause the plaintiffs' claimed business losses, as the plaintiffs would have settled regardless and suffered no loss of chance.

The court awarded nominal damages of $2,000.

The applicant sought to enforce a July 10, 2019 order from the Supreme Court of the State of New York appointing a temporary guardian for the respondent's mother and ordering the applicant, as trustee of a spousal trust, to pay funds for her well-being and investigation of her whereabouts.

The court applied the test for recognizing foreign judgments, finding the New York court had jurisdiction and the funding order was final.

The court recognized the order regarding the funding provisions but declined to recognize the provisions granting access to medical and confidential information due to privacy concerns.

The defendants brought a motion for security for costs under Rule 56.01(1)(e) of the Rules of Civil Procedure, arguing the plaintiff's action for breach of fiduciary duty regarding mortgage investments was frivolous and vexatious.

The plaintiff, who lost his pension funds in the investments, was admittedly impecunious.

The court dismissed the motion, finding the defendants failed to establish at the first stage that the action was plainly devoid of merit or pursued for vexatious reasons.

The applicant daughter sought to remove her brother as their incapable mother's Attorney for Personal Care.

The mother had lived with the applicant for 11 years, during which the applicant provided comprehensive daily care and acted as the de facto decision-maker.

The brother, despite being the appointed attorney, failed to act in good faith, refused to reimburse care expenses, and failed to consent to necessary medical treatments.

The court allowed the application, removing the brother and declaring the applicant as the Attorney for Personal Care, finding that the siblings' animosity prevented them from working cooperatively in their mother's best interests.

The applicant father brought a motion to vary child support retroactively to 2012 and rescind accumulated arrears, citing a decrease in income due to medical issues and bankruptcy.

The respondent mother did not respond.

The court declined to rescind arrears back to 2012, finding no reasonable excuse for the delay in seeking a variation.

However, the court found a material change in circumstances starting in 2016 due to the father's medical issues and surgery.

Child support was reduced to zero for 2016 and 2017, and varied based on imputed incomes for 2018 and 2019 onwards.

The offender was found guilty of sexual interference and sexual exploitation of a 15-year-old victim.

The Crown sought a seven-year sentence, while the offender sought a significantly reduced sentence due to PTSD stemming from harsh pre-trial custody conditions on prior unrelated charges.

The court found the PTSD to be a mitigating factor and sentenced the offender to five years' imprisonment, reduced to 3 years and 211 days after applying enhanced credit for harsh pre-sentence custody conditions including lockdowns.

The plaintiff sub-subcontractor moved for summary judgment on its construction lien claim against the defendant subcontractor.

The defendant cross-moved to withdraw a prior admission regarding the quantum of the lien and to amend its defence to claim set-offs for deficiencies alleged by the general contractor, as well as relying on a 'pay-when-paid' clause.

The court granted the defendant leave to withdraw the admission and amend its defence.

The court granted partial summary judgment to the plaintiff, fixing the quantum of the lien at $414,049.99, but directed a trial on the issue of whether the 'pay-when-paid' clause was agreed to and enforceable.

The accused was found guilty of multiple firearms and drug trafficking offences after police located a sawed-off shotgun, ammunition, cocaine, methamphetamine, and marijuana in his vehicle.

The Crown sought a five-year sentence, while the defence sought one year.

The court considered the accused's youthful age, limited unrelated record, and strict bail conditions as mitigating factors, balanced against the aggravating factors of commercial drug trafficking and firearms possession.

The accused was sentenced to two years less a day imprisonment, minus credits for pre-sentence custody and strict bail conditions, followed by two years of probation.

The applicants challenged the validity of their late father's 2015 Will, alleging lack of testamentary capacity, suspicious circumstances, and undue influence by his common-law spouse, the respondent.

The testator executed the new Will shortly after a terminal cancer diagnosis, leaving his half-interest in the jointly owned home to the respondent, while his children still received his RRSPs and vehicle.

The court declined to convert the application to a trial, finding the documentary record sufficient.

The court held that the applicants failed to rebut the presumption of testamentary capacity, as the circumstances surrounding the Will's execution were not suspicious and there was no evidence of undue influence.

The application was dismissed and the 2015 Will was declared valid.

The plaintiff electrical contractor sued the defendant property managers for unpaid invoices relating to electrical services and energy-efficient lighting installations.

The defendants claimed set-off and brought a separate action against the plaintiff and its principal for fraudulent or negligent misrepresentation, alleging defective work, failure to secure energy rebates, and uncertified fixtures.

The court found the plaintiff was entitled to $123,339.06 for unpaid invoices.

The defendants' set-off claims were dismissed as they failed to prove the plaintiff breached its contract or caused the alleged damages.

The defendants' separate action was dismissed as statute-barred under the Limitations Act, 2002, and the court declined to pierce the corporate veil to hold the plaintiff's principal personally liable.

Following a successful Hague Convention application ordering the return of two children to Nevada, the applicant father sought costs for the Ontario proceedings and related expenses.

The court found that the respondent mother acted in bad faith by concealing the children's whereabouts and deceiving the court about their passports.

The court awarded the father full recovery costs of $6,240 for the bad faith conduct and an additional $30,000 for the balance of the proceedings, deferring payment of the latter amount to allow the mother to regularize her immigration status and pursue business plans.

The three accused, charged with conspiracy to import cocaine and breach of trust, brought applications under s. 24(2) of the Charter to exclude intercepted private communications.

They alleged their s. 8 rights were violated because the police affiant deliberately misled the authorizing judge regarding the investigative plan to establish reasonable and probable grounds for the wiretap.

The court found the affidavit was materially misleading, though not deliberately so, and that without the misleading information, the authorization lacked reasonable and probable grounds.

The court concluded the wiretap violated s. 8 of the Charter and excluded the evidence under s. 24(2), finding the serious police carelessness and subsequent false testimony by the affiant outweighed society's interest in a trial on the merits.

The appellant, Aijun Zhang, appealed a Small Claims Court decision dismissing his claim for unpaid cash incentive award (CIA), bonus, and vacation pay following his termination from Dell Canada Inc. The appellant had signed a severance offer, acknowledgment, and final release.

The Divisional Court upheld the Deputy Judge's findings that the appellant was not entitled to the additional CIA or other payments, as the conditions for the CIA (continued active employment) were not met, and the signed release barred further claims.

New arguments of wrongful dismissal and inadequate notice were not considered as they were not raised at trial.

The appeal was dismissed without costs.

The defendant, Abdirahman Mohiadin, was convicted on six counts related to the possession of a loaded handgun in an automobile.

The court considered aggravating factors, including carrying a loaded handgun in public, and mitigating factors, such as the defendant's youth, first-time offender status, challenging background, and time spent under house arrest.

The Crown sought a sentence of 32-36 months, while the defence sought no more than 21 months.

The court imposed a global sentence of 38 months imprisonment, concurrent sentences for lesser counts, pre-sentence custody credit, a weapons prohibition order, and a DNA sample order, emphasizing denunciation and deterrence due to the proliferation of gun violence.

The applicant, Indira Sampath, and respondent, Sandra Deopersad, brought motions concerning the distribution of net refinancing proceeds from a residential property.

Equitable title to the property was held 60% by Sampath and 40% by Sirju Deopersad (Sandra's ex-spouse).

Sandra Deopersad sought to apply Sirju's 40% share to his outstanding judgment debt to her.

Sampath's cross-motion sought reimbursement from Sirju for his share of carrying costs based on unjust enrichment.

The court granted Sandra Deopersad's motion, calculating Sirju's net share after specific transactional cost deductions, and dismissed Sampath's cross-motion, finding that her unjust enrichment claim was not properly pleaded and could not take priority over Sandra Deopersad's judgment enforcement.

The Applicant Husband sought an order confirming the termination of spousal support effective July 29, 2008, based on an alleged agreement.

The Respondent Wife sought an order for spousal support commencing October 1, 2017.

The court found that the Respondent Wife did not release her claim to spousal support on a final basis in 2008, as the alleged agreement did not meet the formal requirements of a domestic contract under the Family Law Act and was made under circumstances of vulnerability and unfairness.

The court imputed income to the Applicant Husband due to intentional under-employment and ordered him to pay spousal support of $400 per month from October 1, 2017, to December 31, 2019, and $1,000 per month indefinitely commencing January 1, 2020.

The Royal Bank of Canada (RBC) was successful in its motion for summary judgment to enforce guarantees against the defendants.

This endorsement addresses RBC's request for costs of both the motion and the action on a substantial indemnity basis, as provided for in the guarantees.

The defendants argued for partial indemnity costs due to alleged unfair conduct by RBC.

The court found no reason to depart from the contractual provision for substantial indemnity costs, as the defendants' allegations of inequitable conduct were not substantiated.

The court also found the requested amount of $84,490.38, inclusive of fees, disbursements, and HST, to be fair and reasonable.

This appeal concerned the determination of a child's Indigenous background under section 90 of the Child, Youth and Family Services Act, 2017.

The motions judge had found the child to be a First Nations person based on the father's self-identification and his maternal grandfather's identification.

The appellant, Batchewana First Nation, argued that this evidence was insufficient and that a simple statement of self-identification could not establish band affiliation for the purposes of the Act.

The Superior Court of Justice agreed, finding that the motions judge erred in law by relying solely on self-identification without a sufficient evidentiary foundation connecting the child to the community, and made a palpable and overriding error by overstating the evidence regarding the lack of contradiction.

The appeal was granted, and the matter remitted for a new hearing.