SCJ 2021

The accused, charged with sexual assault and sexual interference, brought an application during trial requesting the court to call a witness that the Crown had decided not to call.

The defence argued this was necessary for the discovery of truth, relying on the Supreme Court's decision in Finta.

The court dismissed the application, finding that unlike in Finta, it was not necessary for the court to call the witness because the defence was perfectly capable of doing so and could utilize the Canada Evidence Act if the witness resiled from her prior police statement.

The Crown applied for certiorari to quash a preliminary inquiry judge's order discharging the accused on charges of possession of methamphetamine for the purpose of trafficking.

The accused was a passenger in a vehicle where a bag containing two kilograms of methamphetamine was found.

The reviewing court held that the preliminary inquiry judge committed jurisdictional error by weighing competing inferences rather than drawing the inference most favourable to the Crown regarding joint possession, and by failing to consider the whole of the circumstantial evidence.

The application was granted, the discharge quashed, and mandamus issued directing committal for trial.

The accused was tried for murder arising from a point-blank shooting in a housing project parking area.

The central issue was identification, with the Crown relying on a purported recognition witness, cell phone location evidence, text messages, and alleged consciousness of guilt.

The court found the eyewitness evidence unreliable given the darkness, extremely brief and stressful observation, generic description, cross-racial identification concerns, and the witness's admitted difficulty distinguishing the accused from his brothers.

Applying the circumstantial evidence standard, the court held the after-the-fact conduct and utterances did not make guilt the only rational inference and also rejected party liability on the evidence.

The accused was acquitted.

The applicant conservation authority sought an interim injunction to stop the respondents from excavating peat and depositing fill on their property, which is located within a provincially significant wetland.

The respondents had been carrying out these activities without the required permits under the Conservation Authorities Act and Ontario Regulation 179/06.

The court found that the respondents were in flagrant breach of the regulation and that their activities were causing irreparable harm to the wetland.

The court granted the interim injunction, prohibiting the respondents from interfering with the wetland without prior written approval.

The applicant, charged with human trafficking and prostitution-related offences, brought a constitutional challenge arguing that ss. 286.2(1), 286.3(1) and 286.4 of the Criminal Code violate s. 7 of the Charter.

The applicant relied on a previous Superior Court decision that declared the provisions invalid.

The court found the previous decision to be plainly wrong, as it misidentified the purpose of the legislative scheme and incorrectly interpreted the provisions.

Applying the correct statutory interpretation, the court held that the provisions are rationally connected to their objectives, are not overbroad, and do not have grossly disproportionate effects.

The application was dismissed.

The defendant moving party brought a motion to discharge a Certificate of Pending Litigation (CPL) registered against a 700-acre property.

The property was sold to the moving party under a power of sale while concurrently being sold by the owner to the plaintiffs.

The court found that there were triable issues regarding the validity of the power of sale and whether the moving party was a bona fide purchaser for value without notice.

The court concluded that the equities favoured maintaining the CPL to prevent the property from being encumbered or sold before trial, and found no material non-disclosure by the plaintiffs when they initially obtained the CPL ex parte.

The motion to discharge the CPL was dismissed.

The parties brought cross-motions seeking to impose specific terms for the sale of their matrimonial home, following several prior orders that had failed to result in a sale.

The applicant sought to restrict the respondent, who intended to bid on the property, from seeing other offers.

The respondent argued that real estate regulations required offers to be conveyed promptly.

The court held that the obligation to convey offers is subject to client direction and ordered a blind bid process where neither party would see the offers until a specified time, preventing the respondent from gaining an unfair right of first refusal.

The court imposed detailed terms regarding the listing agreement, showing times, and COVID-19 protocols to ensure the sale proceeded without further dispute.

Following the death of their mother, three brothers brought an action on behalf of her estate against their fourth brother, alleging he misappropriated significant estate assets including real estate, securities, and gold through joint accounts and transfers.

The defendant claimed the assets were inter vivos gifts.

The Superior Court of Justice applied the presumption of resulting trust and found the defendant failed to rebut it, noting the mother's lack of capacity due to dementia and significant inconsistencies in the defendant's evidence.

The court granted a tracing order, awarding the estate a 69.5% interest in a property purchased by the defendant with the misappropriated funds, plus monetary damages.

The defendant's counterclaims for improvident sale of the family home and return of TFSA funds were dismissed.

The respondent father brought a motion to vary a final consent order on an interim basis to increase his parenting time with the parties' 12-year-old daughter to an equal week-about schedule.

The applicant mother opposed the motion, arguing the father failed to prove a material change in circumstances.

The court found that a review provision in the final order allowed for a review without proving a material change.

Relying on the first of two conflicting Voice of the Child reports, the court determined that an equal parenting schedule was in the child's best interests and granted the father's motion.

The Bank of Montreal applied for a receiver over a group of fitness clubs (the Crunch Group) following defaults on credit facilities.

The parties reached an agreement where the debtors' nominee would purchase the debt and security.

The Bank accepted the offer but subsequently refused to provide a fully executed copy of the agreement, causing the purchaser to lose financing and fail to close on the scheduled date.

The court found the Bank's actions, including abruptly closing the debtors' bank accounts and unreasonably refusing to deliver the executed agreement, breached the duty of good faith.

The court ordered the Bank to close the transaction.

The appellant appealed her convictions for impaired driving, failing to comply with a breath demand, and dangerous driving.

At trial, she argued that her drink had been spiked, leading to involuntary intoxication.

The trial judge rejected this defence and convicted her.

On appeal, the Superior Court of Justice found that the trial judge had applied the wrong standard of proof, erroneously requiring the defence to establish a 'likelihood' of involuntary intoxication rather than merely raising a reasonable doubt.

The appeal was allowed, the convictions were quashed, and a new trial was ordered.

The Applicants, licensed cannabis producers, sought court approval and sanction of their second amended and restated plan of compromise and arrangement under the CCAA.

The Plan aimed to implement a settlement framework for multiple securities class actions arising from the Applicants' illegal cannabis growing operations.

While the court found the Allocation and Distribution Scheme reasonable and rejected KPMG's complaint about being excluded from voting, it refused to sanction the Plan.

The court held that the Plan's provisions regarding the assignment of claims against KPMG and the Judgment Reduction Provision in the Bar Order were not fair and reasonable to the non-settling defendants, as they failed to limit the non-settling defendants' liability to several liability.

The plaintiff in a construction lien action brought a motion for leave under s. 67(2) of the Construction Act to amend his pleadings, discovery undertaking answers, and Scott Schedules to include claims for two additional extras and correct accounting errors.

The defendants opposed, arguing the amendments withdrew admissions and introduced statute-barred claims.

The Master found the original pleadings were not admissions under Rule 51.05 and the amendments merely clarified existing claims rather than introducing new causes of action.

Finding no non-compensable prejudice to the defendants, the Master granted leave for all requested amendments.

The accused, charged with sexual interference and luring, brought a pretrial motion alleging his s. 7 and s. 10(b) Charter rights were violated during a 2013 police interview regarding a separate incident.

The Crown brought a cross-motion seeking to admit the 2013 statement as voluntary and as prior discreditable conduct.

The court found the statement was voluntary and that the accused was not psychologically detained during the interview.

However, the court ruled that the probative value of the statement as prior discreditable conduct was outweighed by its prejudicial effect, as it would invite propensity reasoning.

The Crown's application to adduce the evidence was denied.

The plaintiff bank brought a motion for summary judgment against a corporate defendant and its principal for defaulting on a small business loan and personal guarantee.

The defendants argued they did not receive independent legal advice and that the COVID-19 pandemic frustrated the contract, as their restaurant was forced to close.

The court granted summary judgment, finding no requirement for independent legal advice and holding that the pandemic did not render the repayment obligations radically different from what was originally agreed.

The defendant brought a motion for a declaration that the plaintiff did not sustain a permanent serious impairment of an important physical, mental or psychological function following a motor vehicle accident.

The court applied the three-part test from Meyer v. Bright and considered the plaintiff's evidence, including testimony from his doctor and family members.

The court found that the plaintiff's impairments were permanent, serious, and substantially interfered with his activities of daily living.

The defendant's motion was dismissed, as the plaintiff met his onus of establishing that his impairments met the statutory threshold.

The applicant sought to enforce a right of first refusal to purchase a jointly owned property at its 2019 fair market value.

The respondent argued the right was never validly exercised and sought an immediate sale under the Partition Act.

The court reserved its decision on the merits of the right of first refusal but ordered the immediate sale of the property at current fair market value, noting that damages would be an adequate remedy if a breach of contract occurred.

The father was entirely successful at a trial regarding a motion to change, where the court found the mother engaged in a lengthy campaign of parental alienation.

The father sought costs of $213,436.28 on a full indemnity basis, relying on an offer to settle.

The mother argued for a reduced quantum of $97,465.00, citing her financial circumstances.

The court declined to award full indemnity costs but awarded substantial indemnity costs of $175,000.00, noting the mother's inappropriate conduct as a litigant, including violating a previous consent order and surreptitiously recording access exchanges.

The applicant brought a motion for interim spousal support, an advance on equalization, and reinstatement of health benefits following a short marriage.

The applicant was unable to work due to a severe injury, while the respondent claimed he had been laid off from his parents' business shortly after the motion was commenced.

The court imputed income to the respondent, finding him intentionally unemployed, and awarded the applicant interim spousal support of $3,445 per month based on the basic needs/hardship exception to the Spousal Support Advisory Guidelines.

The court also ordered the reinstatement of health benefits but dismissed the request for an advance on equalization due to genuine issues requiring a trial.

The offender was convicted by a jury of importing 2.5 kilograms of cocaine into Canada.

At sentencing, the offender argued for a conditional sentence, citing systemic racism, a difficult childhood, and harsh pre-sentence custody conditions including segregation and lockdowns.

The court acknowledged the offender's difficult background and the existence of systemic racism, which justified a sentence slightly below the standard 6-8 year Cunningham range.

However, the court found that the seriousness of the offence required a period of incarceration.

The court imposed a base sentence of 4.5 years, reduced to 3.5 years after applying Summers credit for pre-sentence custody.