SCJ 2020

The applicant sought leave to appeal a family law arbitration award, arguing the arbitrator erred in law by finding that child support for his son was 'suspended' rather than 'terminated' during a gap year before university.

The applicant claimed that a termination of child support would have triggered a de novo review of spousal support under the parties' divorce order.

The Superior Court of Justice dismissed the application, holding that the arbitrator made no error of law and correctly determined that the gap year did not terminate the child support obligation, thereby not triggering the spousal support review.

The plaintiff in a wrongful dismissal action brought a motion to strike paragraphs from the defendant's Statement of Defence that alleged cause for termination.

The plaintiff argued that the defendant had already admitted in its pleadings and on discovery that the termination was without cause.

The court granted the plaintiff leave to bring the motion despite having served a Notice of Readiness, finding that the defendant's subsequent motion regarding discovery refusals was an unexpected change in circumstances.

The court struck the impugned paragraphs, finding them irrelevant as the defendant had unequivocally pleaded that the termination was without cause and had not amended its pleadings to assert after-acquired cause.

The applicant brought a motion under the Partition Act for the sale of the jointly owned matrimonial home and for an order requiring the respondent to vacate the property to facilitate repairs and staging.

The respondent consented to the sale but opposed vacating the home, citing financial hardship and the need to accommodate her adult son.

The court granted the motion, ordering the respondent to vacate by a specified date, finding that vacant possession was necessary to maximize the sale price and that the respondent had sufficient notice to find alternative accommodation.

The net proceeds were ordered to be divided equally on closing, with the respondent's share subject to deductions for her portion of repair costs and any registered liens.

The defendant hospital requested the summary dismissal of the plaintiff's action under Rule 2.1.01 of the Rules of Civil Procedure, arguing it was frivolous, vexatious, or an abuse of process.

The plaintiff, who had a previous action stayed, alleged breaches of privacy regarding his medical chart.

The court found that while the pleading might have deficiencies or be partially duplicative of the stayed action, it was not so clearly unmeritorious as to warrant summary dismissal.

The defendant's request was dismissed without costs.

The offender, a bar manager, was convicted of sexual assault and voyeurism after luring an employee into a basement office, sexually assaulting her, and surreptitiously filming the assault.

The court found the predatory nature of the offence, the breach of trust, and the voyeuristic purpose to be highly aggravating factors.

The offender was sentenced to a global term of 18 months imprisonment, followed by three years of probation, along with DNA, weapons prohibition, and sex offender registry orders.

Following the dismissal of the plaintiff's $27 million breach of contract claim on summary judgment, the successful defendant sought costs on a substantial indemnity basis.

The defendant relied on the plaintiff's conduct and a pre-litigation offer to settle for $70,000.

The court found the plaintiff's conduct was not reprehensible and held that Rule 49 cost consequences do not apply to pre-litigation offers.

The court awarded the defendant partial indemnity costs fixed at $180,000, applying a reduction to the defendant's claimed hours and rates for proportionality.

The accused was convicted by a jury of substantive charges including possession of a firearm and cocaine.

The failure to comply (FTC) charges were severed by a consent order to be tried by judge alone, with the evidence from the jury trial to apply.

At the FTC trial, the Crown argued the judge was bound by the jury's factual findings, while the defence argued the judge could independently assess the evidence.

The court found the severance order was unclear and the parties were not ad idem.

To avoid inconsistent verdicts or unfairness, the court ordered a mistrial of the FTC charges, directing them to be tried before a different judge with new evidence.

The applicant, charged jointly with two co-accused for human trafficking offences, brought a pre-trial application for severance.

The applicant argued that being tried alongside one of the co-accused, who was also her alleged victimizer in related charges, would cause her further victimization and prevent her from testifying in her own defence.

The court dismissed the application without prejudice, finding the evidentiary record insufficient to establish that a joint trial would work an injustice, while noting that testimonial aids could potentially be utilized to facilitate her evidence.

The plaintiffs commenced a tort action and an accident benefits action arising from a 2013 motor vehicle accident.

The actions were ordered to be tried together before a jury in April 2020, but the trial was suspended due to the COVID-19 pandemic.

Facing indefinite delays for civil jury trials, the plaintiffs moved to strike the jury notices.

The court granted leave to bring the motion and struck the jury notices, finding that the real and substantial prejudice caused by the delay outweighed the defendants' substantive right to a jury trial.

The court concluded that justice would be better served by proceeding to trial in a timely manner before a judge alone.

The applicant sought to quash four municipal by-laws permitting the development of an arena and casino outside the downtown area, alleging statutory non-compliance, procedural unfairness, disqualifying bias, and bad faith.

The court found that the municipality complied with the Planning Act and gaming regulations, provided adequate public consultation, and that the council members did not exhibit disqualifying bias or act in bad faith.

The application was dismissed.

Following a successful motion to set aside a Mareva injunction, the defendant sought costs of over $25,000 on a partial indemnity scale.

The plaintiff did not respond to the costs submissions.

The court found the requested amount excessive for a straightforward motion without cross-examinations and fixed costs at $15,000 inclusive of disbursements and taxes.

The parties brought urgent motions regarding their four-year-old child's school attendance and parenting schedule during the COVID-19 pandemic.

The mother sought an order for in-person attendance at a private school, while the father sought homeschooling or online learning, citing health risks.

The court ordered in-person attendance, finding no medical evidence of an unacceptable risk of harm to the child or the father.

The court also rejected the father's request for an equal time-sharing arrangement due to the high conflict between the parties, but ordered a graduated increase in his parenting time, including overnights.

The applicant brought a motion in an oppression application, alleging the respondent breached her fiduciary duties by usurping a corporate opportunity to extend a commercial lease and seeking a constructive trust over the new lease.

The applicant also alleged the respondent was in civil contempt of an interim order governing the joint management of their deadlocked company.

The court dismissed the motion, finding that the lease extension was not a maturing corporate opportunity because the parties' deadlock rendered the company unable and unwilling to pursue it.

The court also found the applicant failed to establish civil contempt beyond a reasonable doubt.

The respondent brought a motion to set aside ten previous court orders, arguing the court lacked jurisdiction because he was not properly served under the Hague Service Convention.

The applicant brought a cross-motion seeking to refuse the respondent an audience because he remained in continuous breach of those orders.

The court held that a litigant cannot ignore court orders and still demand an audience.

The court directed that the respondent must first bring a motion to stay the impugned orders; if successful, he may proceed with his jurisdiction motion, but if unsuccessful, he will be refused an audience until he complies.

The accused, charged with sexual assault, brought a Stage 1 application under section 276 of the Criminal Code to adduce evidence of a post-incident sexual relationship with the complainant.

The accused argued the evidence was necessary to contradict the complainant's narrative of their subsequent relationship and to support his defence that the initial encounter was the start of a consensual, months-long relationship.

The court found the proposed evidence was capable of being admissible as it did not rely on prohibited twin-myth reasoning and was relevant to the complainant's credibility and the narrative of the relationship.

The application was granted, moving the matter to a Stage 2 hearing.

The respondent father brought a motion seeking primary residence of the children, exclusive possession of the matrimonial home, and other relief prior to a case conference.

He alleged urgency based on the condition of the home and the mother's employment at a nursing home during the COVID-19 pandemic.

The court dismissed the motion, finding that the evidence did not establish urgency or undue hardship under Rule 14(4.2) of the Family Law Rules.

The mother was awarded costs of $3,000.

The applicant's application for the return of tools and equipment was dismissed.

The parties were unable to agree on costs, and the respondent sought $8,768.80 on a partial indemnity basis.

The court found the respondent was entirely successful and entitled to costs.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court reduced the requested amount to reflect what an unsuccessful party could reasonably expect to pay, fixing costs at $7,000 payable by the applicant.

The applicant husband brought a motion to supplant a previous consent order that established a process for valuing and buying out or selling the matrimonial home.

The court dismissed the motion, finding it was an unjustified attempt to alter a previous agreement.

The respondent wife generously agreed to allow the husband a second opportunity to obtain a proper valuation, which the court ordered to be completed by a set date.

Costs of $3,000 were awarded to the respondent wife.

The respondent self-represented condominium owner submitted a written request under Rule 2.1 to dismiss the applicant condominium corporation's application to enforce an arbitration award.

The respondent argued the application and a related condominium lien were frivolous and vexatious.

The court dismissed the request, finding nothing on the face of the application to suggest it was an abuse of process, and noted that Rule 2.1 cannot be used to strike a defence or pronounce on the validity of a claim before a hearing.

Following a successful urgent motion by the tenant for relief from forfeiture and a declaration of unlawful lease termination during the COVID-19 pandemic, the court determined the costs of the motion.

The court awarded the tenant substantial indemnity costs fixed at $150,000, finding the landlord's conduct in terminating the lease and immediately re-leasing the premises to be reprehensible and high-handed.

The court declined to order costs against the landlord's principal personally but allowed the tenant to set off the costs award against future rent.