SCJ 2020

The applicant father applied to move the primary residence of the parties' two children from the respondent mother's home to his own.

The mother had unilaterally relocated with the children and the environment in her home was described as high-conflict and stressful.

Relying heavily on the investigation and evidence provided by the Office of the Children's Lawyer, which indicated the children preferred to live with their father and that the mother had engaged in coaching, the court found it was in the children's best interests to reside primarily with the father.

The application was allowed.

The plaintiff abattoir sued the provincial government for negligence, trespass, and conversion arising from the 19-month suspension of its licence and detention of meat products following an investigation into the processing of uninspected and dead animals.

The court dismissed the action, finding that the provincial regulator did not owe a private law duty of care to the plaintiff, as its statutory mandate was to protect public health.

Even if a duty existed, the regulator did not breach the standard of care given the extraordinary circumstances of concurrent criminal investigations, nor did its actions cause the plaintiff's business losses.

The defendant successfully moved to set aside a default judgment obtained by his former spouse on a crossclaim, as he had never been served.

He sought costs on a substantial indemnity basis due to her unreasonable conduct in refusing to consent to the motion despite having no proof of service.

The court found the responding party's conduct egregious and awarded costs partially on a substantial indemnity basis, fixed at $6,835.

The plaintiff brought a motion to amend her statement of claim to substitute the names of two individuals for 'John Doe' defendants who allegedly caused her severe burns during a cosmetic laser treatment.

One of the proposed defendants opposed the motion, arguing she did not treat the plaintiff and would suffer prejudice.

The court applied the 'litigation finger' test for misnomer, finding that the statement of claim clearly pointed to the proposed defendant as the intended target.

The court rejected the proposed defendant's denial of liability as irrelevant to a misnomer motion and found no actual prejudice.

The motion to amend was granted.

The plaintiff bank brought a motion for summary judgment against a corporate defendant for amounts owing under loan agreements and against an individual defendant on personal guarantees.

The bank argued that a Request to Pay from the Canada Revenue Agency constituted an event of default.

The individual defendant argued the request was sent in error, the tax issue was resolved, the corporation was never in arrears, and the bank failed to provide reasonable notice before enforcing its security.

The court found genuine issues requiring trial regarding whether an event of default occurred and whether reasonable notice was provided, and dismissed the motion for summary judgment.

The plaintiff bank brought a motion for summary judgment against a corporate borrower and an individual guarantor for outstanding loan amounts.

The corporate borrower did not respond, and summary judgment was granted against it.

The individual guarantor opposed the motion regarding a $200,000 guarantee, raising defences of non est factum and fraud, alleging the bank's representative misrepresented the extent of the guarantees required.

The court found a genuine issue requiring trial regarding the enforceability of the $200,000 guarantee.

The court also declined to grant partial summary judgment on two other undisputed guarantees, finding the issues cannot be readily bifurcated and would not advance the action as a whole.

The appellant appealed a conviction for sexual interference arising from allegations that he touched a thirteen-year-old household member's breasts and vagina during apparent horseplay.

The appeal alleged misapprehension of the evidence, improper use of blanket-lifting evidence, and error in concluding the conduct met the elements of sexual interference and sexual assault.

The court held the trial judge's inference about visibility during the touching was supported by the evidence, the blanket-lifting incident was admissible and relevant to sexual purpose, and the touching was properly found to be sexual in nature.

The conviction appeal was dismissed and the custodial sentence was ordered into effect.

The noteholders appealed the Proposal Trustee's disallowance of their unsecured claims in the BIA proposals of several subsidiary corporations.

The Trustee had determined that the subsidiaries' guarantees were limited to an initial US$3 million advance and did not cover a subsequent US$12 million advance, and that the initial advance had been fully satisfied by a property transfer.

The Superior Court upheld the Trustee's interpretation of the guarantees but found an error in the debt allocation, ruling that US$828,000 of the guaranteed debt remained outstanding and should be recognized as an unsecured claim.

The defendant moved to strike the self-represented plaintiff's Second Fresh as Amended Statement of Claim without leave to amend.

The plaintiff sought $25 million in damages, alleging various torts and breach of contract arising from the defendants' request to inspect her electronic devices as a condition of settling her husband's separate litigation.

The court found that the pleading failed to disclose any reasonable cause of action, lacked necessary material facts, and was fundamentally defective.

The motion was granted, the claim was struck without leave to amend against all defendants, and costs of $17,500 were awarded to the moving party.

The applicant father brought an urgent motion seeking the return of his four-year-old daughter from India and an order for interim equal shared custody.

The respondent mother had unilaterally taken the child to India over a year prior and argued that returning during the COVID-19 pandemic posed a risk.

The court found the motion urgent, noting the unilateral removal was akin to abduction, and ordered the mother to return the child by December 31, 2020.

However, the court dismissed the father's request for interim equal custody, finding it incautious given the lengthy separation and the mother's allegations of abuse.

The parties brought cross-motions regarding child access.

The applicant mother sought to hold the respondent father in contempt and vary access to supervised access, while the respondent sought to expand access or remedy the applicant's denial of access.

The court dismissed the contempt motion, noting a Children's Aid Society letter stating the children were not in need of protection and wished to see the respondent.

The court found neither party proved a material change in circumstances to vary the existing access orders.

However, the court found the applicant had denied access without a lawful basis and ordered her to comply immediately, awarding substantial indemnity costs to the respondent.

The accused was charged with impaired driving causing death and bodily harm, driving over 80 causing death and bodily harm, and criminal negligence causing death and bodily harm following an ATV accident.

The accused drove an ATV not meant for passengers with two passengers, one without a helmet, after consuming alcohol.

The ATV crashed in a ditch, seriously injuring one passenger and causing the death of the other.

The court acquitted the accused of the over 80 charges due to evidence of bolus drinking raising a reasonable doubt.

However, the court found the accused was impaired and that her series of negligent decisions constituted a marked and significant departure from the standard of a reasonable person.

The accused was found guilty of impaired driving causing bodily harm and death, and criminal negligence causing bodily harm and death.

The father brought an urgent motion for an order that the children live with him in the matrimonial home in Mississauga and attend the local school, after the mother unilaterally moved with the children to Maple and enrolled them in school there.

The court found the mother's move was a unilateral action designed to alter the status quo and was not a reasonable step required by the best interests of the children.

The father's motion was granted, ordering the children to be returned to Mississauga and enrolled in the local school.

The self-represented plaintiff brought an application to transfer her Small Claims Court action against Rogers Communications Inc. to the Superior Court of Justice and to add the CRTC and CCTTS as defendants.

The plaintiff originally sought $1,858.83 for alleged overcharges and issues related to cellphone repairs and account termination.

The court dismissed the application, finding that the plaintiff failed to demonstrate that a transfer was necessary for a just and fair resolution of her claim, as her monetary claim was well within the Small Claims Court's jurisdiction and she failed to provide a proposed statement of claim outlining any equitable relief or viable causes of action against the proposed defendants.

The applicant father brought an urgent motion for a temporary parenting order prior to a Case Conference.

The parties, who separated in 2019, had competing proposals for parenting time that differed by only one overnight every two weeks.

The court emphasized the need to focus on the children's best interests rather than parental conflict, and ordered a temporary 2-2-3 rotating schedule providing equal time to both parents.

The accused, charged with first-degree murder, brought a third-party records application seeking police records relating to an alleged co-party to advance a third-party suspect defence.

The court held that occurrence and arrest reports from the investigating agency (Toronto Police) where the alleged co-party is a suspect or accused are first-party disclosure under Stinchcombe.

Records from a non-investigating agency (Niagara Regional Police) met the 'likely relevant' threshold under O'Connor and were ordered produced to the court for review.

The applicant, charged with second-degree murder in a 1998 cold case, applied to change the venue of his trial from Sudbury to Toronto, arguing that extensive pre-trial publicity and public support for the victim made it impossible to empanel an impartial jury in the Northeast Region.

The court reviewed the extent and content of the media coverage, social media commentary, and a public opinion survey.

The court found that the applicant failed to establish a fair and reasonable likelihood of widespread partiality or prejudice that could not be overcome by the safeguards of the jury system.

The application was dismissed, though the court noted the trial might still be moved within the region due to COVID-19 constraints, and imposed a publication ban on specific portions of the reasons.

The parties could not agree on the terms of a formal order following a previous endorsement.

The court resolved the disputes over the competing draft orders, deciding to include a reference to the Investigative Receiver's Interim Report, declining to add a preamble regarding an undertaking as to damages, and including a paragraph explicitly dismissing the defendant's motion to set aside an ex parte order for lack of full and fair disclosure.

The plaintiff brought a motion to set aside a registrar's dismissal order and extend the time to set the action down for trial.

The court applied the Reid factors, finding the plaintiff provided a reasonable explanation for the delay, missed the deadline through inadvertence, and rebutted the presumption of prejudice.

The defendants failed to demonstrate actual prejudice, as the unavailability of certain witnesses was not caused by the delay.

The motion was granted and the dismissal order was set aside.

The moving party brought a motion to discharge a certificate of pending litigation (CPL) that was granted to the responding party ex parte.

The court found that the responding party failed to make full and fair disclosure of material facts on the ex parte motion, including provisions in the agreement of purchase and sale prohibiting the registration of a CPL and disavowing any legal or equitable interest in the property.

The court also found that the property was not unique to the responding party, as it was purchased as an investment.

The motion was granted, the CPL was discharged, and costs were awarded to the moving party.