SCJ 2020

In a family law trial concerning whether two young children should be returned to Dubai, the respondent mother brought an application to adduce expert opinion evidence from a psychotherapist.

The proposed evidence concerned the potential emotional and psychological impact on infants separated from their primary caregiver.

The applicant father opposed the admission of the evidence.

Following a voir dire, the court applied the test for expert evidence and found the proposed expert was properly qualified and capable of giving fair, objective, and non-partisan evidence.

The court granted the application, permitting the expert to testify strictly on the potential impact of separation from a primary caregiver, but prohibited her from opining on the specific attachment of the children to either parent.

The parties are parents of a child.

The respondent father previously initiated a Motion to Change seeking unsupervised access and reduced child support, which was ultimately withdrawn with a consent order for no access and increased support.

The remaining issues of enforcement of prior court orders regarding joint debts and costs proceeded to a trial of an issue.

The court granted judgment to the applicant mother for $1,700 for payments made on a joint student line of credit and awarded her $43,000 in costs for the Motion to Change, with $25,000 enforceable through the Family Responsibility Office.

The respondent mother brought a motion for summary judgment seeking sole custody, termination of access, and child support.

The applicant father, who had a history of family violence and criminal charges, failed to participate in the motion despite multiple opportunities.

The court granted summary judgment, finding no genuine issue requiring a trial.

The mother was awarded sole custody with no access to the father, and the father was ordered to pay retroactive and ongoing child support based on an imputed income, along with costs.

The applicant, charged with drug trafficking, brought an application for the disclosure of police disciplinary records relating to two officers involved in the investigation.

The court held that the disciplinary file of an officer who would not be called as a Crown witness was not first party disclosure and did not meet the 'likely relevant' threshold for third party records.

For the undercover officer who would testify, the court ordered the police to ascertain whether specific additional disciplinary records existed, but otherwise dismissed the application.

The plaintiff bank brought a motion for summary judgment against the defendant lawyer, alleging he falsely stated on an electronic transfer of real property that his client had obtained a full release of a writ of execution.

The defendant sought an adjournment through an agent, which was denied due to a pattern of obfuscation and lack of evidence of illness.

The court found that the defendant's law statement was false and known to be false, rejecting the debtor's late-filed affidavit as incredible and contradicted by documentary evidence.

Summary judgment was granted for the debt and enforcement costs, plus $20,000 in punitive damages to protect the integrity of the electronic registration honour system.

The 87-year-old defendant, who had significant health issues, brought a motion to give his evidence before trial outside of court and to present his evidence-in-chief by way of affidavit.

The plaintiff consented to the pre-trial video examination but opposed the use of an affidavit, arguing it would be 'counsel created evidence' and unfair in a case where credibility was central.

The court granted the motion, finding that the plaintiff's concerns could be adequately addressed through cross-examination and that the accommodation was appropriate given the defendant's health.

The plaintiff, former interim Commissioner of the OPP, brought a defamation action against the Premier of Ontario over public statements alleging the plaintiff breached the Police Services Act.

The defendant moved to dismiss the action under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The court granted the motion, finding that the defendant's expression related to a matter of public interest, the plaintiff could not show that the defence of fair comment had no real prospect of success, and the public interest in protecting the expression outweighed the public interest in permitting the action to continue.

The accused was tried on charges of sexual assault, sexual touching of a person under 14 for a sexual purpose, and assault arising from alleged historic abuse of his stepdaughter.

The court applied the W.(D.) framework, reviewed the law governing proof beyond a reasonable doubt, child witness evidence, and impermissible myths and stereotypes in sexual assault cases.

Although the complainant testified in a straightforward manner, the court found significant inconsistencies and gaps in the Crown’s evidence, while finding the accused’s denial internally consistent and plausible.

The court was left with a reasonable doubt on all counts and acquitted the accused.

During a trial for assault and assault with a weapon, the Crown moved to amend the indictment to substitute 'a female person' for the named victim, as the Crown's lay witnesses could not identify the victim by name and police hearsay evidence was excluded.

The court initially granted the motion, finding no prejudice to the accused's ability to meet the case.

However, after the accused and the named victim testified for the defence, firmly establishing her identity, the court reversed its ruling to avoid confusing the jury.

The plaintiffs in a competition law class action regarding price-fixing of lithium ion batteries brought a motion for consent certification for settlement purposes and approval of a notice plan regarding a settlement with the Panasonic defendants.

The settlement provided for payment of approximately $8.2 million CAD.

The court found that the criteria for certification under the Class Proceedings Act, 1992 were met in the settlement context and granted the motion, approving the certification and the plan for disseminating the notices of hearing.

During a re-trial for second-degree murder, the accused brothers sought to have the partial defence of provocation left to the jury.

The principal shooter, John, argued he was provoked by the victim's threats.

The court found an air of reality to John's claim, despite evidence of prior threats and preparation.

However, the court ruled that provocation is not available in law to an aider, Mato, as it only applies to the person who committed the murder.

Furthermore, there was no air of reality to provocation for Mato based on the evidence.

The applicant father brought an urgent motion seeking temporary primary care of the parties' two young children, alleging the respondent mother's mental health posed a risk.

The mother, who was the primary caregiver prior to separation, also sought primary care.

The court found no evidence that the children were in danger in the mother's care, noting that neither the police nor the Children's Aid Society had raised protection concerns.

The court ordered that the children reside primarily with the mother, with the father having temporary access on alternate weekends and one mid-week overnight.

The respondent husband brought an interim motion to stay the enforcement of a separation agreement and temporarily reduce his spousal support obligation from $10,000 to $3,000 per month, pending a Motion to Change.

He argued his income had significantly decreased due to a partial retirement and business losses.

The court dismissed the motion, finding the husband failed to establish a strong prima facie case for the reduction, as his reduced employment income was voluntary and the losses stemmed from a speculative new business venture.

In an automobile insurance priority dispute, the appellant insurer sought production of communications between two other insurers regarding a section 10 notice.

The appellant argued the notice was part of an inappropriate scheme to circumvent the 90-day notice requirement.

The arbitrator dismissed the motion, finding the communications irrelevant as the initial notice was made in good faith.

On appeal, the Superior Court of Justice found no palpable and overriding error in the arbitrator's decision and dismissed the appeal.

The Crown moved to dismiss an appeal brought by 'Maxine Adwella' against a decision of the Animal Care Review Board regarding the removal of abandoned pets.

The Crown argued that 'Maxine Adwella' was an alias for Althea Reyes, who had previously been declared a vexatious litigant and was prohibited from commencing proceedings without leave.

The court found that the appellant was indeed Althea Reyes using an alias to circumvent the vexatious litigant order.

The appeal was dismissed pursuant to Rule 2.1.03(1) and as an abuse of process.

The City of Brampton sought costs following the dismissal of a motion brought by Essam Elbassiouni to be appointed as litigation guardian for his brother, Ahmed Elbasiouni.

The court rejected the applicant's argument that the parties had reached a no-costs settlement.

Finding that the motion had no reasonable prospect of success and was brought in a finally disposed proceeding, the court awarded substantial indemnity costs to the City.

The costs were ordered payable by Essam Elbassiouni, rather than the applicant's counsel, and were fixed at $15,536.83.

The plaintiffs brought a motion for the production of a Cooperation and Common Interest Agreement between the defendants.

The plaintiffs sought the agreement to support their argument that the defendants mounted a joint defence, which would affect the apportionment of costs following summary judgment motions.

After reviewing the agreement in camera, the court dismissed the motion, finding that the document was protected by privilege.

Sentencing following guilty pleas to sexual interference involving a 14-year-old complainant and two breaches of bail prohibiting contact with the complainant.

After a Gardiner hearing, the court found the sexual interference occurred without the complainant’s actual consent and treated the offence as a highly invasive, cruel, and exploitative act marked by significant psychological harm, abuse of a friendship-based trust relationship, and aggravating post-offence threats and contact.

The court balanced denunciation and deterrence against the offender’s youth, lack of prior record, some remorse, and rehabilitative prospects.

A penitentiary sentence of 46 months less enhanced credit for pre-trial custody resulted in a final sentence of 44 months, together with DNA, weapons prohibition, SOIRA, and no-contact orders.

The offender pleaded guilty to possession of a loaded prohibited firearm, flight from police, and possession of a prohibited firearm while prohibited.

He fled from police in a vehicle and on foot, discarding a loaded handgun with a removed serial number.

At the time, he was subject to a lifetime weapons prohibition.

Accepting a joint submission, the court sentenced the offender to four years in custody, leaving 22 months and 15 days to serve after accounting for pre-sentence custody and lockdown credits.

Following the dismissal of the paternal grandmother's motion to consolidate her access application with the mother's motion to change the father's access, the mother sought costs.

The paternal grandmother argued against costs, citing her limited ability to pay and suggesting the mother's receipt of Legal Aid should reduce the award.

The court rejected these arguments, noting that Legal Aid is irrelevant to costs and that ability to pay does not immunize a party from costs for unnecessary procedural steps.

The court awarded the mother costs fixed at $4,700.