SCJ 2020

The parties, two closely held private companies owned by brothers, disputed an unwritten agreement allowing the plaintiff to extract aggregate and timber from the defendants' land.

The defendants brought a motion to discharge a construction lien registered by the plaintiff, while the plaintiff brought a motion to preserve harvested wood and blasted rock on the property.

The court granted the defendants' motion to discharge the lien, finding no lienable services were provided and the lien was not preserved in time.

The court also granted the plaintiff's motion for an interim preservation order, finding the test under Rule 45.01 was met.

The accused was charged with attempted murder, aggravated assault, possession of a weapon (a motor vehicle), and dangerous operation of a motor vehicle after striking a pedestrian with his car during a parking lot altercation.

The incident was captured on video surveillance, showing the accused repeatedly driving his vehicle aggressively towards the unarmed victim, resulting in a compound fracture to the victim's leg.

The court rejected the accused's claims of accident and self-defence, finding the driving was deliberate and a marked departure from the standard of care.

The accused was found guilty of dangerous driving, possession of a weapon, and aggravated assault, but acquitted of attempted murder as the Crown failed to prove a specific intent to kill.

The accused, charged with sexual offences against a minor, brought an application for a stay of proceedings alleging a breach of the right to be tried within a reasonable time under section 11(b) of the Charter.

The total delay from the swearing of the Information to the anticipated end of the trial was 43.5 months.

The court deducted significant periods of defence delay and explicit waivers, resulting in a net delay of 20.75 months, well below the 30-month presumptive ceiling established in Jordan.

The court found the defence failed to demonstrate that this was a clear case of unreasonable delay and dismissed the application.

The offender pleaded guilty to manslaughter after setting up a home invasion robbery during which the victim was shot and killed by a co-accused.

The Crown and defence jointly submitted a sentence of 7 years imprisonment but disagreed on the quantum of pre-sentence custody credit for lockdowns and COVID-19 conditions.

The court accepted the joint submission of 7 years and granted 55 months of pre-sentence credit, including 8 months of enhanced credit for staffing-related lockdowns and pandemic conditions, resulting in a remaining sentence of 2 years and 5 months.

The defendants sought to dismiss two actions brought by the self-represented plaintiff under Rule 2.1.01 as frivolous, vexatious, or an abuse of process.

The actions involved allegations of improper disclosure of medical information and forged consent, which had already been conclusively dismissed in a prior summary judgment motion.

The court found that the new actions were an attempt to relitigate the same issues, constituting an improper collateral attack and res judicata.

The actions were dismissed as an abuse of process.

The plaintiffs alleged that the defendant, an officer of their corporation, fraudulently and without authorization registered two mortgages against their properties.

They also sued the lawyer who registered the mortgages for negligence and the mortgagees for relying on the mortgages despite alleged red flags.

The court dismissed the action, finding that the officer had actual authority to bind the corporation under its by-laws, the plaintiff was aware of and benefited from the mortgages as part of a scheme to avoid foreign creditors, the lawyer met the standard of care, and the mortgagees were protected by the indoor management rule and the Land Titles Act.

The applicant, who was found guilty of child pornography offences, applied for a stay of sentencing under s. 11(b) of the Charter, arguing unreasonable delay between the verdict and the sentencing hearing.

The court applied the Jordan framework and found that the presumptive ceiling of five months for sentencing delay was exceeded.

However, the court dismissed the application, concluding that the delay was reasonable due to the exceptional circumstances of the COVID-19 pandemic, which caused a suspension of regular court operations and a significant backlog.

The minority shareholder of a family company commenced an action for an oppression remedy and asserted a derivative claim without obtaining leave.

The minority shareholder's holding company later commenced an action in debt against the family company.

The defendant in the first action moved to stay the second action as an abuse of process.

The court dismissed the motion to stay, instead ordering the two actions consolidated.

However, the court struck the derivative claim without leave to amend, finding it misconceived, ill-advised, and not brought in good faith.

The respondent brought a motion to change seeking to adjust his child support and life insurance obligations, and to impute income to the applicant.

The applicant, who receives income replacement benefits from Veteran's Affairs Canada, opposed the motion and sought increased support and section 7 expenses.

The court terminated child support for the older child who had graduated, adjusted support for the younger child, and declined to impute income to the applicant, finding she was not deliberately under-employed.

The court also reduced the respondent's life insurance obligation and resolved various disputed post-secondary education expenses.

The applicant brought a motion for summary judgment to dismiss the respondent's action regarding the allocation of shareholdings in a holding company.

The parties, former spouses, disputed whether the respondent owned 30% or 50% of the shares, with the respondent claiming a constructive trust over 20% of the shares due to family law and unjust enrichment principles.

The court found that the corporate records were deficient and that the intertwined family law complexities, including the respondent's decision not to seek an equalization payment, created critical factual disputes.

The court concluded there was a genuine issue for trial and denied summary judgment.

The moving party brought a motion under Rule 38.11 to set aside portions of a partition and sale order made after he failed to appear at the application hearing.

The court found that the failure to appear was due to an administrative mistake by his newly retained counsel.

Applying the five-part test for setting aside an order, the court determined that the moving party moved forthwith, would suffer prejudice if the order stood, and had an arguable case on the merits regarding his claim for a constructive trust over the property.

The motion was granted, the disputed portions of the order were set aside, and the remaining issues were stayed in favour of an ongoing family law proceeding between the parties.

The plaintiff bank brought a motion to strike the self-represented defendant's statement of defence and counterclaim in a mortgage enforcement action.

The plaintiff argued the pleadings disclosed no reasonable defence and relied on 'Freemen on the Land' arguments.

The court dismissed the motion, finding that under Rule 21, the facts in the pleading must be taken as true, and the defendant's denial of default could not be deemed patently ridiculous without evidence.

The court noted the plaintiff likely should have brought a motion for summary judgment instead.

The plaintiff construction manager brought a motion for summary judgment for its share of cost savings realized on a condominium project.

The defendant owner argued there were no cost savings and counterclaimed for damages.

The court interpreted the construction management contract, determining the Gross Liveable Area and finding that only construction costs managed by the plaintiff should be included in the actual total cost calculation.

The court granted summary judgment, finding no genuine issue for trial, and ordered a reference to determine the exact quantum of cost savings.

The mother brought a motion for summary judgment to dismiss the children's aid society's protection application regarding her infant child.

The society alleged the child was in need of protection due to the father's history of substance abuse, domestic violence, and a prior judicial finding that he likely sexually abused another child.

The court found no triable issue regarding physical or emotional harm, as the mother had adequately cared for the child.

However, applying the cautionary approach to summary judgment in child protection matters, the court concluded there was a genuine issue requiring a trial regarding whether the mother could protect the child from the risk of sexual harm posed by the father.

The motion was dismissed.

Following a successful summary judgment motion to enforce four mortgages, the plaintiff mortgagee sought costs on a substantial indemnity basis as provided in the standard charge terms.

The defendants argued for partial indemnity costs, noting the plaintiff initially claimed interest exceeding the criminal rate and provided inaccurate discharge statements.

The court awarded partial indemnity costs for the steps up to the summary judgment motion due to the plaintiff's improper conduct, but awarded substantial indemnity costs for the motion itself because the defendants persisted in an unsuccessful misrepresentation defence.

Total costs were fixed at $63,772.65.

The Crown brought an application under s. 486.2(2) of the Criminal Code for an order permitting the complainant to testify outside the courtroom by way of closed-circuit television.

The accused, charged with assault and sexual assault against his former intimate partner, opposed the application.

The court found that the complainant's severe anxiety and physical symptoms warranted the use of a testimonial aid.

The application was granted, as testifying via CCTV would facilitate the complainant giving a full and candid account of the alleged offences.

Following a successful motion by the defendant to strike the plaintiff's statement of claim with leave to amend, the court determined the appropriate costs award.

The moving party sought over $43,000 on a partial and substantial indemnity basis, relying on an offer to settle.

The court found the offer to settle was less favourable than the outcome because it did not contemplate leave to amend, and thus awarded costs on a partial indemnity scale.

Applying the factors under Rule 57.01, the court fixed costs payable by the plaintiff to the moving party at $23,969.22.

The applicant, facing robbery and firearms charges, sought an adjournment of his trial scheduled for January 4, 2021.

Due to the COVID-19 pandemic and a provincial lockdown, the Chief Justice directed that non-jury matters proceed virtually unless an in-person hearing was absolutely necessary.

The applicant opposed a virtual trial, citing difficulties with his living situation, his counsel's childcare issues, and potential custody issues, and offered to waive his s. 11(b) Charter rights.

The court granted the adjournment, finding that in the specific circumstances, the applicant's right to a fair trial warranted an in-person hearing.

The accused, charged with sexual assault, brought a Step One application under section 278 of the Criminal Code seeking the production of police occurrence reports relating to the complainant and 14 other proposed Crown witnesses.

The court found that the reports concerning the complainant were likely relevant to the key issue of her capacity to consent, given her developmental delay, and ordered their production to the court for review.

However, the application for reports relating to the other 14 witnesses was dismissed as the accused failed to establish an evidentiary foundation beyond mere speculation that the reports would contain information useful for impeachment.

The respondent mother brought a 14B motion to determine who should conduct her court-ordered psychiatric assessment and what documents should be provided to the assessor.

The mother, applicant father, and respondent father each proposed a different psychiatrist.

The court selected the respondent father's proposed assessor, finding him to be the most qualified for adult psychiatric diagnoses.

The court also ordered that all prior orders, including those made without prejudice, be provided to the assessor.