SCJ 2020

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.

In a personal injury action, the defendant brought a motion to compel the plaintiff to produce a further and better affidavit of documents and to pay for the production of pre-accident medical records.

The plaintiff argued that the defendant should bear the cost of obtaining records not currently in her possession.

The court held that routine pre-accident medical records are relevant and producible at the plaintiff's expense, as they are a standard part of personal injury litigation.

The plaintiff in a certified class action regarding the federal government's response to the Mad Cow Disease outbreak brought a motion under the Interprovincial Summonses Act to compel the attendance of the former federal Minister of Agriculture, Ralph Goodale, as a witness at trial.

The court dismissed the motion, finding that while the proposed witness's evidence would be relevant, it was neither necessary nor essential to the administration of justice.

The plaintiff already had copious documentary and oral discovery, and the federal government planned to call sixteen civil servants from Agriculture Canada at trial.

The plaintiff obtained an ex-parte Mareva injunction and an interim preservation order against the defendants, who allegedly defrauded a government COVID-19 relief program of at least $11 million.

The moving party brought a motion to vary the Mareva injunction to access frozen funds for legal and living expenses.

The court dismissed the motion, finding that the moving party failed to make full disclosure of his worldwide assets and did not discharge the onus of proving that he and his family had no other assets available to pay their expenses.

The plaintiff brought a motion to strike the defendant's jury notice due to the suspension of civil jury trials in Ottawa caused by the COVID-19 pandemic.

The plaintiff argued that the delay in obtaining a jury trial date caused her financial prejudice under the Insurance Act.

The court found the motion premature because the parties were not yet ready for trial, requiring updated medical and actuarial reports.

The motion was dismissed without prejudice to the plaintiff's right to bring a similar motion once the action was trial-ready.

The father brought a motion for an interim parenting schedule within the mother's motion to change proceeding.

The father sought a 2-2-3 equal timesharing arrangement, which the parties had previously agreed to in negotiations before the mother changed her mind.

The father also sought an order requiring the mother to disclose international travel and comply with COVID-19 quarantine directives, after discovering she had travelled internationally multiple times without notice and failed to quarantine upon return.

The court granted the father's motion, ordering interim joint custody, a 2-2-3 timesharing schedule, and compliance with travel and quarantine directives, finding it in the child's best interests.

The mother's request for an order requiring the father to sign the child's passport was dismissed.

In a class action regarding pelvic mesh devices, the plaintiffs brought a motion to appoint Andrea Plumb as the Referee to hear appeals from decisions of the Claims Administrator under the approved Compensation Protocol.

The court reviewed Ms. Plumb's qualifications, including her experience in health law and nursing, and found her well-qualified.

The court granted the motion, appointing her as Referee and ordering that no claims could be brought against her relating to the fulfilment of her responsibilities.

The applicant sought to set aside a default judgment for foreclosure obtained by a private mortgage lender after she missed a single $650 payment.

The property, valued at $575,000, was sold to a third-party corporation for $425,000.

The court found that the equities favoured the applicant, noting the disproportionate consequences of her default and that the purchaser was not a bona fide purchaser for value without notice.

The court also found the default judgment was irregularly obtained because the assignee of the mortgage failed to give the applicant written notice of the assignment before foreclosing.

The application was granted, the default judgment set aside, and the property ordered to be sold at fair market value.

The plaintiff, an IT service provider, sued the defendant independent contractors for breach of a non-competition clause after they declined to renew their sub-contracts and instead provided services to the RCMP through a competitor.

The court found that one defendant was not bound by the clause because it was inserted into an electronic renewal without notice, while the other defendant was bound but the clause itself was unreasonably broad and unenforceable.

The court held that the plaintiff had no proprietary interest in the identity of the client (the RCMP) and the restriction was an unjustified restraint of trade.

The action was dismissed.

The respondent husband brought a motion to transfer a family law application for spousal support and equalization from Kingston to North Bay.

The applicant wife had properly commenced the application in Kingston, where she resided.

The court applied the test for transferring venue, requiring the moving party to demonstrate that the proposed venue is substantially better.

The court found that the husband's reasons, including his business location, family property, and childcare responsibilities, did not outweigh the significant difficulty a transfer would pose for the wife.

The motion was dismissed.

The moving party (Murphy Trust) sought disclosure of documents from the plaintiff and its affiliated corporation regarding water haulage to a construction site.

The moving party alleged the plaintiff was seeking an easement for improper purposes and thus came to the court with 'dirty hands'.

The court dismissed the motion, finding the moving party's claim that water was taken from the subject properties for a construction project was mere speculation and did not warrant the requested production.

The representative plaintiff in a certified class action regarding the introduction of Mad Cow Disease into Canada brought a motion for approval of a third-party litigation funding agreement.

The court applied the four-factor test for approving such agreements and found that the funding was necessary for access to justice, made a meaningful contribution, protected the defendant's interests, and did not overcompensate the funder.

The court approved the agreement and pre-approved the funder's return of up to 10 percent of any recovery.

The defendants in a 15-year-old class action regarding the federal government's response to the mad cow disease crisis brought a motion to adjourn the peremptory trial date of January 18, 2021, to September 2021.

They cited difficulties preparing due to the COVID-19 pandemic and the late delivery of supplementary expert reports by the plaintiff.

The court dismissed the motion for a lengthy adjournment, finding that the parties were well-resourced to conduct a virtual trial and that the late expert reports were responsive to the defendants' own late productions.

The trial commencement was postponed by two weeks to February 1, 2021, to allow for the completion of remaining pre-trial steps.

The applicant mother and respondent father both brought motions for interim primary care of their three children and exclusive possession of the matrimonial home.

The parties had been living separate and apart under the same roof for over a year, with significant domestic conflict adversely affecting the children.

The father sought to introduce surreptitious video recordings of the mother; the court admitted three where the mother was aware of the recording but gave them little weight, and excluded a fourth taken without her knowledge.

The court granted the mother interim primary care, finding she had been the primary caregiver and it was in the children's best interests to maintain the status quo.

The court also granted the mother exclusive possession of the matrimonial home to protect the children from further exposure to conflict, with the implementation date adjourned to allow the father to find alternate accommodations.

The plaintiff, a senior executive, was terminated without cause after nearly four years of employment.

He brought a summary judgment motion for wrongful dismissal damages.

The court found the termination clause in his employment contract unenforceable because it had the potential to provide less than the minimum termination and severance pay required under the Canada Labour Code.

The court awarded eight months' pay in lieu of notice, finding the plaintiff held a significant managerial role.

The court also awarded damages for a discretionary bonus for 2017 and the notice period, as it was an integral part of his compensation, but dismissed claims for unused vacation and statutory holiday pay.