SCJ 2020

The Representative Plaintiffs sought substantial or partial indemnity costs following a successful conditional certification motion in a class action.

The court awarded partial indemnity costs of $35,000 for the certification motion and $1,000 for costs submissions.

The court rejected substantial indemnity, finding the defendant's conduct in resisting certification was not egregious and did not warrant a punitive award.

It also found the plaintiff's Offer to Settle ill-advised and an "ill fit" for a certification motion, which is a mandatory procedural step that does not decide the merits of the case.

This motion concerned an application for judicial approval of a settlement for statutory accident benefits (SABS) for a catastrophically injured claimant who lacked capacity to instruct counsel.

The court expressed significant concerns regarding the adequacy of the proposed settlement amount, the fairness and applicability of the contingency fee agreement to a SABS claim, the claimant's capacity at the time of signing the fee agreement and various loans, and the absence of a proper management plan for the lump sum payment.

The court refused to approve the settlement as proposed and referred the matter to the Office of the Public Guardian and Trustee for further input, remaining seized of the matter.

The defendants brought an urgent motion to discharge a certificate of pending litigation (CPL) that the plaintiff had obtained without notice.

The central issue was whether the plaintiff failed to disclose a "No Registration" clause (NRC) in the Agreement of Purchase and Sale (APS) as a material fact.

The court found that the NRC was not material because the vendor had terminated the APS prior to the CPL motion.

Furthermore, the NRC did not explicitly prohibit CPL registration.

Applying the Dhunna factors, the court determined that justice favored maintaining the CPL, given the uniqueness of the land, the plaintiff's intent to reside there, and the inadequacy of damages as a remedy.

The defendants' motion to discharge the CPL was dismissed, and costs were awarded to the plaintiff.

The defendants Jing Liu and Yu De Xing (the "Xing defendants") brought a motion to enforce a Third Party Offer to Settle dated July 4, 2017, which they accepted on February 15, 2020.

The plaintiffs and Third Party argued that a subsequent global offer to settle from January 2020 impliedly withdrew the earlier offer, or that the court should exercise discretion due to inadvertent error.

The court found the two offers to be fundamentally distinct and that the later offer did not impliedly withdraw the earlier one.

The motion to enforce the July 2017 Offer to Settle was granted, and partial indemnity costs were awarded to the moving parties.

The respondent, Hassan Jarrar, was found guilty of multiple sexual and child pornography offences.

The Crown sought a dangerous offender designation and an indeterminate sentence.

The court found a pattern of repetitive violent and sexual behaviour targeting young vulnerable females, demonstrating a failure to restrain behaviour and a likelihood of causing death, injury, or severe psychological damage.

Despite the respondent's lack of cooperation with assessments and treatment, the court concluded there was no reasonable expectation that a determinate sentence or a long-term supervision order would adequately protect the public.

Consequently, the respondent was designated a dangerous offender and sentenced to concurrent indeterminate terms for the serious personal injury offences, along with other prohibitions and orders.

The parties separated and shared parenting of their child on a week-about basis.

The father relocated to the east end of the city and sought to enroll the child in a school near his new residence, while the mother remained in the west end and proposed a school near her home.

The court applied the principles for determining a child's choice of school, focusing on the child's best interests.

The court ordered that the child attend the school in the mother's catchment area, finding it would minimize the child's time in traffic and before/after school daycare given the parents' respective work schedules.

Kadah Dematas was convicted of multiple charges related to a home invasion and shooting, including discharge firearm with intent, aggravated assault, and robbery with a firearm.

The court considered sentencing principles, aggravating factors (violent nature, youth record, lack of employment), and mitigating factors (no prior adult record, young age, improved conduct in custody, genuine remorse, family support, lesser role in the shooting).

The court also addressed enhanced credit for pre-sentence custody, including "Summers credits" and "Duncan credits" for harsh conditions at the Toronto South Detention Centre (TSDC), exacerbated by the COVID-19 pandemic and Dematas's asthma.

A global sentence of 6 years was imposed, with significant credit for time served, resulting in a balance of 1 year remaining.

The court issued a supplementary endorsement to its October 25, 2019 trial decision (2019 ONSC 6096) to resolve three outstanding disagreements regarding a parenting schedule: mother's mid-week parenting time, Christmas arrangements, and treatment of school strike days.

The court agreed with the mother's proposals for flexible mid-week parenting time based on her class schedule and for alternating Christmas Eve/Day to maintain sibling bonds.

However, the court rejected the mother's request to treat strike days like professional development days due to inconsistency and short notice.

The Plaintiff sought to amend an existing litigation timetable due to COVID-19 disruptions.

The Defendant opposed remote examinations for discovery, argued for incomplete documentary production, and sought to bring a motion for security for costs.

The court ordered the delivery of sworn affidavits of documents, mandated remote examinations for discovery and mediation if requested, and directed that any motion for security for costs be brought after discoveries.

The debtors, Eureka 93 Inc. and related companies, filed a notice of intention to make a proposal under the BIA.

Two motions were heard: an unopposed motion by the debtors for an interim arrangement order under the Canada Business Corporations Act, which was granted; and an opposed motion by the noteholders (Dominion Capital LLC) seeking an order for document production relevant to an appraisal, cross-examination of Seann Poli, and examination of a representative of the first mortgagee, all in advance of the creditors' meeting to vote on the proposal.

The court dismissed the noteholders' request for examinations as premature, noting that the BIA provides mechanisms for investigation after the trustee's report or by adjourning the creditors' meeting.

However, the court ordered the debtor's appraiser to disclose and produce source documents used for the land appraisals, but declined to order disclosure for a business valuation under the BIA.

The plaintiffs sought interim orders to compel the sale of a property and non-party document disclosure, alleging oppression and fraud by the defendants.

The court applied the strong prima facie case test for the mandatory interlocutory injunction.

It found a strong prima facie case of oppression due to the defendants' breach of shareholder agreements, diversion of funds, and lack of credibility, evidenced by their non-compliance with previous court orders.

The court approved the plaintiffs' proposed sale of the property for $12 million over the defendants' $15 million offer, citing the plaintiffs' offer's certainty and the defendants' unreliability.

The court also granted the non-party production order.

This endorsement addresses the costs of a motion brought by Metro Ontario Real Estate Limited ("Metro") to strike paragraphs from Hillmond Investments Ltd.'s ("HIL") Reply and Defence to Counterclaim.

The motion was settled on consent, with the issue of costs deferred.

Metro sought $10,944.63 on a partial indemnity scale, while HIL argued for no costs.

The Master found that HIL's refusal to engage in discussions regarding amendments until the day before the motion necessitated the motion and was the primary factor contributing to the costs incurred.

Considering the proportionality and the conduct of the parties, the Master awarded Metro fixed costs of $4,000.

The applicants, Dyllan Ali and Diquan Taylor, facing firearms and drug trafficking charges, brought a motion for disclosure of the full contents of disciplinary and criminal investigation files relating to Constable Sean Osborne, a key police witness.

The court dismissed the request for disclosure of files related to past disciplinary findings, citing principles of finality and lack of demonstrated likely relevance.

However, the court granted the request for disclosure of investigative files related to Constable Osborne's outstanding criminal charges for assault and obstruction of justice, finding them "obviously relevant" to the applicants' Charter application and trial, particularly concerning the officer's credibility and potential propensity for misconduct.

The plaintiff, an Ontario resident, was injured in British Columbia while driving for an Alberta-based company.

He elected to receive Alberta workers' compensation benefits and subsequently initiated a tort action in Ontario against the defendant, the truck's owner and also an Ontario resident, alleging improper maintenance.

The defendant moved to stay or dismiss the action, arguing it was statute-barred by the plaintiff's election to receive workers' compensation benefits and constituted an abuse of process.

The Ontario Superior Court of Justice allowed the motion, finding the tort action was statute-barred based on principles of inter-provincial comity and that it represented an abuse of process, as it sought to relitigate a matter covered by the workers' compensation scheme and allowed for potential double recovery, thereby circumventing the 'historic trade-off' inherent in such legislation.

The plaintiff brought a motion for summary judgment seeking damages for wrongful dismissal, arguing that the termination clause in his employment contract was unenforceable.

The court found the termination clause violated the Employment Standards Act, 2000, by improperly combining notice and severance pay and by contracting around the "willful misconduct" standard for just cause, rendering the entire contract void.

Applying the Bardal factors, the court awarded the plaintiff four months of common law reasonable notice, plus benefits, less amounts already paid and mitigated earnings, but declined to award a discretionary bonus.

Costs were awarded to the plaintiff on a partial indemnity basis.

The respondent father brought a motion seeking to set aside ex parte interim orders, obtain joint custody, shared parenting, and permit the children to remain in Tunisia, citing cultural values and perceived lower COVID-19 risks.

The applicant mother had previously obtained ex parte orders for interim sole custody and the return of the children to Toronto, following the respondent's refusal to return them after a vacation.

The court found the children's habitual residence to be Toronto, as conceded by the respondent, and dismissed the respondent's motion, finding no justification to set aside or vary the prior orders.

The court ordered the immediate return of the children to Toronto and scheduled a case conference.

The plaintiff sought an urgent ex parte Mareva injunction and other ancillary injunctive relief against the defendants, alleging that the defendant Tami Kone, a former bookkeeper, had fraudulently issued cheques to herself totaling over $312,000 from the company's account.

The court granted the Mareva injunction, finding that the plaintiff had established a strong prima facie case, irreparable harm, and that the balance of convenience favoured the plaintiff, along with a genuine risk of asset dissipation.

However, the court denied the requested ancillary orders for registering PMSI liens and retaining/imaging a personal laptop, citing lack of authority and privacy concerns.

This decision addresses costs following a two-day trial initiated by the applicant's motion to change a separation agreement.

The respondent sought $37,500 in costs, while the applicant argued for no costs, claiming partial success.

The court found success was divided but noted the applicant's unreasonable conduct, including delayed disclosure and failure to attend mediation, significantly increased the respondent's legal expenses.

Consequently, the respondent was awarded $20,000 in costs, payable as support.

The applicant mother sought orders to implement parenting schedules and related relief, including police enforcement, due to the respondent father's alleged withholding of their child, EM, and non-compliance with agreements.

The father brought an irregular cross-motion for temporary custody.

The court found the father engaged in parental alienation tactics, consistently disregarded agreements, and failed to support the child's relationship with the mother.

The child, diagnosed with ADHD and a learning disability, exhibited poor school attendance and academic performance while in the father's care.

The court dismissed the father's cross-motion and granted the mother temporary sole custody, sole decision-making authority for EM's healthcare and schooling, and ordered reunification therapy, with police enforcement of the custody order.

The applicant husband initiated parallel divorce proceedings in Tennessee, prompting the respondent wife to seek an anti-suit injunction and enforcement of prior Ontario arbitration awards.

The court found the Ontario arbitration awards valid and enforceable, rejecting the applicant's arguments to set them aside based on statutory provisions or alleged lack of consent.

The court also granted the anti-suit injunction, determining Ontario remained the appropriate forum with the closest connection to the divorce application and parties, and that no injustice would result from preventing the Tennessee action.