SCJ 2021

Following a trial on child and spousal support, the respondent sought to re-argue the applicant's entitlement to spousal support.

The court dismissed this as an abuse of process, finding no evidentiary basis to infer post-separation income increases.

On the issue of costs, the court found that the respondent conducted the eight-year litigation in bad faith by failing to disclose relevant documents, stonewalling the income valuation process, and habitually breaching court orders.

The court awarded the applicant costs of $193,000 on a full recovery basis under Family Law Rule 24(8).

The objectors, the widower and daughter of the deceased, brought a motion for directions under Rule 75.06 challenging the validity of the deceased's 2018 wills on grounds of lack of testamentary capacity and undue influence by the applicant son.

The court found the objectors met the minimal evidentiary threshold to call the wills into question.

The court ordered broad documentary discovery and the examination of the drafting lawyer, and appointed an independent estate trustee during litigation on an interim basis to ensure fairness and preserve estate assets.

The plaintiff sought partial indemnity costs of $290,704 following a successful bifurcated certification motion in a class action against the defendant.

The defendant argued the costs should be reduced by 50% because the plaintiff was successful in certifying the common law negligence claim but unsuccessful in certifying the statutory misrepresentation claim.

The court rejected the defendant's argument, finding that the plaintiff was the successful party in a complex, hard-fought motion and that divided success on specific claims does not necessarily warrant a reduction in costs.

The plaintiff was awarded the full amount claimed.

The parties brought cross-motions regarding the release of net proceeds from the sale of the matrimonial home, child support, allocation of chattels, and costs.

The court ordered the release of the net sale proceeds to the respondent, dismissing the applicant's request to hold back $400,000 for alleged loans, as that issue required a trial.

The court denied the respondent's request for security for future child support but ordered the applicant to pay child support arrears from his share of the sale proceeds.

A referee was appointed to allocate chattels, and the applicant was awarded $12,908.15 in costs for prior successful proceedings.

The applicants, executors of the deceased's estate, moved for directions regarding the procedure to determine the validity of the deceased's 2015 Will.

The respondent, a daughter excluded from the Will, objected to its validity, alleging lack of testamentary capacity and undue influence.

The court found that the respondent failed to meet the minimal evidentiary threshold to require the Will to be proved in solemn form, as her claims were based on bald allegations and speculation.

The court directed the applicants to proceed to probate.

The respondent sought partial indemnity costs of $144,054.57 following a successful application.

The applicants argued for no costs, asserting the matter was a case of first impression, or alternatively $30,000.

The court held that costs should follow the cause because the parties were advancing private financial interests rather than a public interest.

Applying the Boucher principles, the court found the respondent's time spent was excessive compared to the applicants' and reduced the requested fees by approximately 40 percent, fixing costs at $75,000 plus HST and disbursements.

Following a motion regarding the examination for discovery of the defendant's representative, the parties were unable to agree on costs.

The plaintiff sought substantial indemnity costs, while the defendant argued the parties should bear their own costs.

The court found that while both parties shared responsibility for the conduct of the motion, the defendant's refusal to re-produce the deponent necessitated the motion.

The court awarded the plaintiff costs fixed at $4,000 on a partial indemnity scale.

In a combined criminal trial and Charter voir dire on multiple firearm possession charges, the court held that police lacked both reasonable suspicion for an investigative detention and reasonable grounds to believe for the more invasive search of a satchel.

The detention and search were based on weak, third-hand confidential source information, sparse and inadequately corroborated descriptors, and evolving police evidence.

The court also found breaches of ss. 10(a) and 10(b) of the Charter because the accused was not promptly informed of the reason for detention or of the right to counsel.

Applying the Grant framework, the court excluded the firearm and ammunition under s. 24(2) and entered acquittals on all counts.

The applicants brought a motion to find the respondent in contempt for failing to comply with a 2017 access order regarding the children.

The respondent admitted to withholding access because the applicants would not agree to her additional conditions, which were not part of the original order.

The court declined to make a finding of contempt, exercising its discretion as the respondent mistakenly believed an agreement was in place.

However, the court ordered a specific schedule for the resumption of access and included a police enforcement clause to ensure future compliance.

The defendant requested that the court consider dismissing the plaintiff's action under Rule 2.1.01 of the Rules of Civil Procedure as frivolous, vexatious, or abusive.

The court found that the claim pleaded very limited facts and did not clearly plead a tenable cause of action.

The court directed the registrar to issue a notice to the plaintiff to provide written submissions as to why the claim should not be dismissed, and stayed the action pending the outcome of the written hearing.

The moving defendants requested the dismissal of the plaintiff's action under Rule 2.1.01 of the Rules of Civil Procedure.

The court reviewed the plaintiff's submissions, which alleged criminal offences for false affidavits and ignoring court orders regarding service.

The court found the allegations unsupported by the evidence and concluded the action was frivolous, vexatious, and an abuse of process.

The action was dismissed against the moving defendants.

The defendant insurer moved for summary judgment to dismiss the plaintiff's action, arguing it was brought outside the one-year limitation period set out in the Insurance Act and the standard automobile insurance policy.

The plaintiff argued the claim was not for breach of contract, but for breach of the insurer's independent duty of good faith, which is subject to the basic two-year limitation period.

The court dismissed the motion, finding that based on the pleadings, the bad faith claim is separate and distinct from a claim under the insurance contract, and therefore falls outside the one-year limitation period.

The plaintiff brought a motion to approve a settlement in a class proceeding against SiriusXM regarding the alleged unlawful collection and use of personal information from vehicle purchasers.

The proposed settlement provided for a $150,000 cy-près payment to the Automobile Protection Association to fund a privacy best practices report, with no direct compensation to class members.

The court found the settlement fair and reasonable given the significant risks in the litigation, including the lack of evidence of actual harm or data breach, and the strong defences available to the defendants.

The settlement was approved.

The defendants brought a motion to set aside a default judgment of over $1 million for unpaid fuel deliveries.

The court set aside the judgment against one personal defendant because it was irregularly obtained during the COVID-19 suspension of procedural time limits.

The court also set aside the judgment against the second personal defendant, finding she raised an arguable defence regarding her personal liability under the credit agreement, on the condition she pay the plaintiff's costs thrown away.

The motion to set aside the judgment against the corporate defendant was dismissed as no arguable defence was raised.

The plaintiffs brought motions to certify three proposed class actions against Aviva Insurance for the blanket denial of coverage for COVID-19-related business loss claims.

The claims focused on 'restricted access' and 'negative publicity' coverage provisions in Aviva's standard-form policies.

The court found that the requirements for certification under the Class Proceedings Act were met, noting the commonality of the standard-form policies and the identical denial letters.

The two Lerners Actions were certified, and the Nordik Action was conditionally certified pending a motion regarding the representative plaintiff.

The court-appointed Receiver brought a motion for directions regarding an offer to purchase a large Muskoka property en bloc.

The original buy-out order directed the Receiver to sever the property to allow departing members of the corporation to be paid their share while remaining members kept a retained parcel.

After four years of delays and significant expenses, the severance process was incomplete.

The court found it had jurisdiction to vary the original order due to materially changed circumstances.

The court directed the Receiver to halt the severance process and accept the en bloc purchase agreement, which had the support of the vast majority of stakeholders and represented fair market value.

The accused, charged with sexual offences, brought a motion for directions seeking a declaration that the court was bound by a previous Superior Court decision (R. v. Reddick) which struck down sections 278.92, 278.94(2), and 278.94(3) of the Criminal Code as unconstitutional.

The accused argued this would bypass the need to file a formal Notice of Constitutional Question under Rule 27.

The court dismissed the motion, applying the Court of Appeal's reasoning in R. v. Sullivan that the ordinary principles of stare decisis apply to declarations of invalidity by trial courts, and directed the accused to follow the formal procedure to challenge the provisions.

The parties settled a motor vehicle accident claim for $9,000 for past loss of income and housekeeping capacity, but could not agree on costs.

The plaintiff sought over $70,000 in costs and disbursements, while the defendants argued for a maximum of $12,278.31 plus HST based on proportionality.

The court found that the plaintiff's costs should be discounted because she was unsuccessful on her claim for general damages.

The court also declined to award costs for the pursuit of Statutory Accident Benefits, as the defendants received no benefit from them.

Costs were fixed at $42,229.05.

The accused was charged with trafficking cocaine and conspiracy to traffic cocaine.

The Crown's case relied on intercepted communications, police surveillance, two cocaine seizures, and expert evidence on drug terminology.

The court found that the intercepted communications, which heavily featured drug slang, established beyond a reasonable doubt that the accused was part of an ongoing buy-sell conspiracy to traffic cocaine from the Greater Toronto Area to Sudbury.

The accused was convicted on both counts.

The applicant brought an application for the partition and sale of a property co-owned with his brother.

The brother brought a cross-application claiming a 77% ownership interest based on a constructive trust, arguing that a $120,000 payment from their mother used to pay down the mortgage was a gift to him.

The court found that the $120,000 payment was a loan to both brothers, not a gift to one.

The court declared the brothers to be 50:50 owners, ordered the partition and sale of the property, and directed that the mother have a first charge of $120,000 on the net proceeds to repay the loan.