SCJ 2020

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 sued former business partners over promissory notes said to evidence unmatched contributions and direct loans made during the start-up and operation of a food manufacturing business.

The defendants alleged the notes and shareholder agreement were forged, but the court preferred the plaintiff’s evidence, rejected the defendants’ credibility, accepted the plaintiff’s forensic handwriting expert, and gave no weight to the defence expert report for both procedural and substantive reasons.

Applying the Bills of Exchange Act and Interest Act, the court held the notes were valid promissory notes supported by antecedent debt and forbearance, subject to set-off for one defendant’s proven capital contribution.

Punitive damages were refused, with the court holding that litigation misconduct and disclosure failures could be addressed in costs.

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.

The young person, charged with second-degree murder, applied for bail.

The Crown sought detention on the secondary and tertiary grounds.

The court found a substantial likelihood that the young person would commit a serious offence if released, given his prior criminal record and history of violence while in custody.

The court rejected the proposed plan of release, finding the proposed sureties unsuitable and incapable of providing adequate supervision.

Bail was denied and the young person was ordered detained in custody pending trial.

The applicant, charged with sexual offences against his grandchildren, brought a Rowbotham application seeking state-funded counsel.

The court dismissed the application, finding that the applicant failed to provide full and frank financial disclosure to establish indigence and had not made reasonable efforts to save funds for his defence.

Furthermore, the court held that the case was not sufficiently complex to require counsel for a fair trial, noting that the trial judge could appoint counsel to cross-examine the complainants under section 486.3(2) of the Criminal Code.

The respondents moved to dismiss an oppression application commenced in 2009 for delay, lack of corporate authority, and alternatively sought security for costs.

The court found that the applicants were not principally responsible for the delay, as the respondents had brought a motion in 2009 that they never set down for a hearing.

The court dismissed the assigned claims from a corporate applicant that lacked authority to sue, but allowed the personal claims of the individual applicants to proceed.

The motion for security for costs was dismissed.

The Crown applied for judicial review to quash a pre-trial judge's decision that the accused was entitled to a preliminary inquiry.

The accused was charged with assault offences carrying maximum sentences of 10 years, but the Crown gave notice of its intent to seek a dangerous offender assessment upon conviction.

The pre-trial judge found that the potential for an indeterminate sentence meant the offences were 'punishable by 14 years or more of imprisonment' under s. 535 of the Criminal Code.

The Superior Court dismissed the Crown's application, holding that the pre-trial judge had jurisdiction to make the finding and correctly interpreted the provision by considering the accused's actual penal jeopardy.

The applicants brought a motion to compel the respondent's counsel to attend an examination under Rule 39.03 and to remove the counsel and his firm as lawyers of record.

The applicants sought to examine the counsel regarding a legal opinion he provided on the validity of proxies submitted during a condominium board election.

The court dismissed the motion, finding that the legal opinion lacked the 'high materiality and necessity' required to compel opposing counsel to testify.

Consequently, as counsel would not be a witness, there was no conflict of interest warranting removal from the record.

The plaintiff moved to extend the timetable for procedural steps in an action alleging historic sexual assault while in foster care.

The defendant Children's Aid Society cross-moved to dismiss the action for delay.

The court found that while the plaintiff's counsel initially caused delay by unilaterally cancelling discoveries, the defendant subsequently engaged in 'scorched earth' tactics that actively obstructed the litigation's progress.

Applying the Reid criteria, the court granted the extension, dismissed the cross-motion, and ordered the action into case management.