SCJ 2020

The moving party brought a motion to set aside an ex parte order that froze her bank accounts and made her personally liable for a judgment regarding funds allegedly misappropriated from the responding party's elderly father.

She also argued the seized funds were exempt from seizure under the Wages Act as they originated from a WSIB settlement.

The court dismissed the motion to return the seized funds, exercising its discretion to reduce the wage exemption to 0% for the already seized amounts due to strong prima facie evidence of financial impropriety.

However, the court varied the order to allow an 80% exemption for future wages and directed a trial of the issue regarding her ultimate liability.

In an addendum to a previous endorsement, the court addressed a factual inaccuracy raised by the respondent father regarding a refused access visit.

The court clarified that while the applicant mother did refuse the access, she did so because the father was agitated, and maintained its conclusion that the father was less inclined to encourage regular access.

The court also ordered the father to vacate the matrimonial home within 14 days and amended the parenting exchange schedule to align with school hours to minimize conflict.

The applicant brought an urgent motion seeking to transfer $59,953 from the respondent's locked-in retirement account (LIRA) to satisfy a temporary spousal support order made under the Divorce Act.

The respondent's LIRA was not currently 'in pay'.

The court dismissed the motion, finding that while the Pension Benefits Act permits garnishment of up to half of pension payments once they are 'in pay', there is no statutory authority to order the transfer or garnishment of funds from an unlocked LIRA that is not currently paying out funds.

The Crown appealed the respondent's acquittal on a charge of sexual assault.

The respondent had masturbated and ejaculated on his sleeping wife's face, which the trial judge found to be simple assault because the respondent's motive was degradation rather than sexual gratification.

The Summary Conviction Appeal Court allowed the appeal, holding that the trial judge erred in law by confusing the sexual purpose of the offender with the objective sexual nature of the conduct.

A conviction for sexual assault was substituted, and the respondent was sentenced to a four-month conditional sentence.

The accused, charged with sexual assault, brought a motion for disclosure of communications between the complainant and the CBC regarding a proposed documentary.

The Crown and third parties argued the communications were protected under s. 278 of the Criminal Code due to a reasonable expectation of privacy.

The court found that while there was a subjective expectation of privacy, the communications regarding the scope and terms of the CBC interviews were directly relevant to the defence's O'Connor application.

The court ordered the disclosure of relevant emails and texts, excising irrelevant personal details.

The applicant mother brought an urgent motion seeking an order that the parties' two children attend in-person learning rather than remote learning during the COVID-19 pandemic.

The respondent father opposed, preferring remote learning due to health risks.

Applying the framework from recent jurisprudence, the court found that the government's plan for returning to school should be presumed reasonable absent specific evidence to the contrary.

Given the children's need for social interaction, one child's learning difficulties, and the mother's inability to supervise remote learning during her parenting weeks, the court concluded that in-person learning was in the children's best interests.

The motion was granted.

The applicant sought certiorari to quash his committal for trial on a charge of first-degree murder, arguing the preliminary inquiry justice committed jurisdictional error by relying on insufficient circumstantial evidence of identity.

The reviewing judge found no jurisdictional error, concluding that the preliminary inquiry justice properly engaged in a limited weighing of the evidence, including DNA on a glove, video surveillance, clothing similarities, and association with the co-accused, to determine that a reasonable inference of guilt was available.

The application was dismissed.

The mother, as the successful party on a long motion regarding parenting issues, sought full recovery costs of $45,308.42.

The father argued no costs should be awarded due to his limited financial resources, or alternatively, costs on a partial indemnity basis.

The court found the father's conduct unreasonable and that he should have accepted the mother's offer to settle.

The court awarded the mother fixed costs of $30,000, payable in installments, noting that impecuniosity does not excuse unreasonable litigation conduct.

The defendant brought a consent motion in writing to adjourn a trial scheduled for October 5, 2020, arising from a 2012 motor vehicle accident.

The parties sought the adjournment because they had not held a pretrial conference and claimed scheduling conflicts prevented them from attending a pretrial date offered by the court in September.

The court dismissed the motion, noting that trial dates in Toronto are only adjourned in extenuating circumstances.

The court found the motion materials deficient and held that counsel's preference to schedule a pretrial after the trial date was not a compelling reason to adjourn a trial that had been fixed for over a year.

The mother brought a motion seeking security for costs against the father in the amount of $25,000.

The father had previously been ordered to pay costs to the mother, declared bankruptcy, and subsequently brought a motion to change seeking sole custody and termination of child support.

The court found that the father ordinarily resides outside Ontario, has unpaid costs orders, and there is good reason to believe his motion to change is a waste of time or a nuisance.

The court ordered the father to pay $20,000 into court as security for costs.

The plaintiffs, owners of twelve residential homes, leased their properties to the defendant based on his fraudulent representation that he would occupy them as single-family residences.

Instead, the defendant converted the homes into illegal rooming houses and rented them to numerous occupants.

The plaintiffs sought an ex parte injunction to evict the occupants.

The court held that while the Landlord and Tenant Board generally has exclusive jurisdiction over residential evictions, the Superior Court has jurisdiction under section 440 of the Municipal Act to grant an injunction to a taxpayer to restrain the contravention of municipal zoning by-laws.

The court ordered the occupants and the defendant to comply with all municipal notices and zoning by-laws requiring the properties to be returned to single-family residences.

The accused was charged with multiple firearms and threat-related offences after confronting tenants in his home with what appeared to be a handgun.

The central issue at trial was whether the Crown could prove beyond a reasonable doubt that the unrecovered item was a real firearm rather than an imitation, relying on video evidence and witness testimony.

The court found that the circumstantial evidence, particularly witness descriptions of the bullets, proved the item was a real firearm.

The accused was found guilty of possessing a weapon for a dangerous purpose, pointing a firearm at one tenant, uttering a death threat to that tenant, possessing a firearm while prohibited, and possessing a loaded firearm without a licence, but acquitted of the remaining charges.

The plaintiff requested an urgent motion to strike the defendant's jury notice, arguing that the COVID-19 pandemic would cause a multi-year delay and that jurors taking public transit might be biased against the plaintiff in a claim against the Toronto Transit Commission.

The plaintiff also argued the case was too complex for a jury.

The court declined to schedule the urgent motion, noting that civil jury trials were proceeding in Toronto with social distancing measures, eliminating the delay argument.

The court found the bias argument to be pure speculation and held that any motion to strike based on complexity should be brought before the trial judge using the 'wait and see' approach.

Following a partial judgment in a trial regarding the return of vehicles and parts, the court directed a reference to determine the plaintiff's remaining claims for monetary damages.

The parties agreed to appoint a specific referee.

The court rejected the parties' draft consent order as it improperly delegated judicial authority and failed to address referee remuneration and reporting procedures.

The court issued its own order directing the reference pursuant to Rule 54 of the Rules of Civil Procedure, outlining the specific issues to be determined, including damages for unreturned or damaged vehicles, and potential credits for improvements made by the defendant.

The applicant, having been acquitted of aggravated assault but convicted of the lesser included offence of simple assault, applied to re-open the trial before sentencing.

The applicant argued that the court lacked jurisdiction to find him guilty of simple assault, asserting that aggravated assault under s. 268 of the Criminal Code does not contain a lesser included offence of assault.

The court declined to exercise its discretion to re-open the trial, emphasizing the principle of finality and noting the argument should have been raised during closing submissions.

The court also rejected the substantive argument, affirming that simple assault is a lesser included offence of aggravated assault.

The plaintiff brought a motion to validate service of her Statement of Claim after 19 months of unsuccessful attempts to serve the defendants.

The motion was resolved when the defendants' counsel accepted service prior to the third return date.

The parties could not agree on costs.

The court found that the defendants' conduct made the motion necessary and unnecessarily lengthened the proceeding.

The court awarded the plaintiff costs fixed at $2,500.

The mother brought an interim motion to relocate with the parties' three children to Kapuskasing following the sale of the matrimonial home in Smiths Falls.

The father, who had been exercising equal parenting time, opposed the move.

The court found that neither parent could afford housing in Smiths Falls and the mother had a reasonable plan and family support in Kapuskasing.

Noting the father's stated willingness to also move to Kapuskasing, the court permitted the relocation and ordered that equal parenting time continue in Kapuskasing, granting a 30-day grace period for the father to secure accommodation.

The moving party defendants brought a Rule 21 motion to strike the plaintiff's claims for oppression and breach of fiduciary duty on the basis that they were statute-barred.

The plaintiff argued that the claims were not statute-barred and that a Rule 21 motion was inappropriate for determining limitation issues.

The court found that the plaintiff discovered the factual foundation for its claims in the fall of 2017 during related estate litigation, but did not commence the action until December 2019, beyond the two-year limitation period.

The court held that this was a rare case where discoverability was not in issue, making a Rule 21 motion appropriate.

The motion was granted and the statement of claim was struck.

The appellants appealed a Master's decision denying them leave to examine non-parties to trace funds and enforce a 1997 judgment against the respondents.

The Master had also ruled that the respondent did not have to provide further answers to previously ordered questions, citing the passage of time and the expiry of limitation periods.

The Superior Court of Justice allowed the appeal, finding that the Master erred in law by invoking the doctrine of laches and the Limitations Act, 2002, as there is no limitation period for enforcing a judgment.

The court ordered the respondent to provide further answers and permitted the examination of the non-parties.

Following a motion for temporary child and spousal support where success was divided, both parties sought costs.

The applicant husband had successfully established a prima facie entitlement to spousal support and obtained a temporary support order, despite the respondent wife's position that no support should be ordered.

The court found the husband was the successful party on the most important issues.

After considering the parties' behaviour, offers to settle, and the proportionality of the fees, the court ordered the respondent to pay costs of $33,000 to the applicant.