SCJ 2021

The defendant estate moved for summary judgment in a motor vehicle accident claim, arguing that the deceased owner could not have been driving the offending vehicle and had not consented to anyone else possessing it.

The plaintiff's insurer opposed the motion, presenting hearsay evidence that the owner's son had previously driven the car and may have had implied consent.

The court dismissed the motion, finding that a trial was necessary to assess the credibility of witnesses and determine whether the driver had possession of the vehicle with the owner's consent.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination with a neurologist in Toronto.

The plaintiff opposed the location, providing uncontroverted medical evidence from her treating physician and psychologist that she could not tolerate car travel longer than 30 minutes due to her injuries from a skid steer accident.

The court dismissed the motion, finding that while defendants have a prima facie right to choose their medical expert, this right is not unfettered when it compromises the plaintiff's well-being.

The defendants were granted leave to arrange an examination within a 30-minute drive of the plaintiff's residence.

The children's aid society brought a motion for summary judgment in a status review application, seeking to place the child in the permanent care and custody of his great aunt and uncle.

The maternal grandmother, who previously had custody, opposed the motion and sought the child's return to her care.

The court found no genuine issue requiring a trial, concluding that the child continued to need protection due to the grandmother's unaddressed mental health challenges and delusional beliefs.

The court granted the society's motion, placing the child with the kin caregivers and ordering limited access for the grandmother via text communication.

The plaintiff brought a motion for summary judgment on two defaulted loans totaling $1,000,000 made to the corporate defendant and guaranteed by the individual defendant.

The defendants argued that a $300,000 payment made to the plaintiff's sole director was a partial repayment of the loans, while the plaintiff claimed it was a separate personal loan.

The court granted summary judgment but found that the $300,000 payment constituted a pre-payment on the principal of the loans, reducing the judgment amount accordingly.

The defendants' counterclaim was dismissed.

Following a lengthy high-conflict family trial, the court resolved property, support, and post-separation adjustment claims arising from the breakdown of a long marriage involving a failed family business and an adult dependent child with disabilities.

The court found both parties jointly responsible for the destruction of the business and much of the financial ruin, but held that the respondent had a 50% trust interest in the second matrimonial home because the parties operated as a joint family venture and the delayed sale produced a substantial post-separation increase in value.

The court rejected an unequal division of net family property, imputed annual incomes of $15,000 and $65,000, ordered retroactive and ongoing table child support but no section 7 contribution, and awarded transitional lump sum spousal support.

The respondent was also made solely liable for the costs of the consumer proposal and related bankruptcy steps caused by his breach of prior settlement terms.

The plaintiff brought a motion for summary judgment for possession of lands and payment on a defaulted vendor take-back mortgage.

The defendant opposed the motion, claiming equitable set-off based on alleged fraudulent misrepresentations regarding the property's condition.

The court found that the defendant was estopped from raising this defence because the plaintiff had previously obtained an unchallenged default judgment in Small Claims Court regarding a deposit for the same property.

Summary judgment was granted in favour of the plaintiff.

The offender was convicted of the first-degree murder of one young woman and the manslaughter of another.

Both victims were vulnerable and their bodies were dismembered and disposed of in a callous manner.

The court imposed the mandatory sentence of life imprisonment with no parole eligibility for 25 years for the murder.

For the manslaughter, the court found extreme aggravating factors, including the complete desecration of the victim's body, and imposed a sentence of 18 years imprisonment to be served concurrently.

The Crown applied for a ruling on a voir dire that the accused's formal statement to the police was voluntary and admissible at trial.

The defence argued that the Crown failed to meet its burden because it did not call every police officer who had contact with the accused at the police station.

The court found that there is no rule requiring the Crown to call every officer, and based on the evidence presented, the statement was given freely and voluntarily.

The statement was ruled admissible.

During a trial regarding allegedly false warranty claims, the court made two evidentiary rulings.

First, the court found the plaintiffs breached the rule in Browne v. Dunn by failing to cross-examine a defence witness on evidence later adduced from customer witnesses to impeach him.

The court admitted the evidence but reserved the right to draw an adverse inference or adjust its weight.

Second, the court granted the defendants leave under Rule 53.08 to use an undisclosed document to cross-examine a plaintiff's witness, on the condition that the defendants recall their own witness to be cross-examined on the document.

The accused applied to sever counts on an indictment charging him and a co-accused with a home invasion and firearms offences.

The accused sought separate trials so he could testify regarding the firearms charges without implicating himself in the home invasion.

The court dismissed the application, finding that the counts were closely connected factually and legally, and that the desire to testify on some counts but not others did not outweigh the policy against a multiplicity of proceedings.

The plaintiffs brought a motion for default judgment against the defendants for unpaid commissions and wrongful dismissal.

The individual plaintiff initially provided services through his corporation as a dependent contractor before becoming a full-time employee.

The court granted default judgment, awarding the corporate plaintiff unpaid commissions and bonuses in USD.

The court also found the individual plaintiff was a dependent contractor whose prior service counted towards his length of employment, awarding him 6 months' pay in lieu of notice, less mitigation.

A claim for bad faith damages was dismissed.

The appellant Fund appealed an Arbitrator's decision finding that a taxi company's SPF 6 insurance policy was not a 'motor vehicle liability policy' under the Insurance Act, and therefore did not include Statutory Accident Benefits (SABs).

The court found that while the Arbitrator erred in law by concluding that a corporation is not a 'person' under the Act, the Arbitrator made no palpable and overriding error in determining that the taxis were not driven by employees, agents, or on behalf of the taxi company.

The court upheld the finding that an SPF 6 commercial general liability endorsement is not a motor vehicle liability policy intended to carry SABs.

The appeal was dismissed.

The defendant 2613497 Ontario Inc. moved under Rule 37.14 to set aside a Mareva injunction and discharge Certificates of Pending Litigation, arguing the original order was obtained without notice and without full and fair disclosure.

The court found that the defendant's lawyers of record had participated in case conferences and filed responding materials for the original motion, establishing that the defendant had notice.

As the motion was not made without notice, Rule 37.14 did not apply, and the court dismissed the motion, awarding costs to the plaintiffs.

The parties separated after a high-conflict breakdown of their marriage and could not agree on decision-making responsibility or a parenting time schedule for their two young children.

The applicant father sought joint decision-making and equal parenting time structured around his firefighter shift schedule.

The respondent mother sought sole decision-making and a continuation of the interim parenting schedule, which included daycare.

The court awarded sole decision-making responsibility to the mother, finding the parties could not communicate effectively enough for joint decision-making, but required her to consult the father on major decisions.

The court also ordered a parenting schedule similar to the interim order, providing the father with significant but not equal parenting time, finding that the consistency of the schedule and daycare was in the children's best interests.

The plaintiffs brought a motion under Rule 7.08 for court approval of a proposed settlement for a minor plaintiff who sustained a crush injury to her hand in an elevator.

The parties agreed to a settlement of $150,000, inclusive of damages, costs, and disbursements.

The court reviewed the medical evidence, finding the minor had reached maximal medical recovery with minor permanent sensory deficits.

The court also approved the plaintiffs' solicitor's contingency fee of $40,000, finding it fair and reasonable given the time expended, the complexity of the damages issues, and the excellent result achieved.

The applicants brought a motion for leave to amend their Amended Notice of Application to add Sentry Insurance Company, Teva Canada Limited, and National Union Fire Insurance Company of Pittsburgh, PA as respondents.

The proposed respondents consented to the relief sought.

The court granted the motion on consent, with the application against the newly added parties to be adjourned to a later date.

The plaintiff brought a motion to strike the defendants' jury notice in a trip and fall action due to ongoing delays caused by the COVID-19 pandemic.

The court granted leave to bring the motion after the action was set down for trial, finding the pandemic constituted a substantial and unexpected change in circumstances.

Applying a five-factor analysis, the court concluded that the plaintiff would suffer prejudice from further delay and that justice was better served by discharging the jury.

The motion was granted, with leave for the defendants to seek reinstatement if jury trials are permitted when the matter is called.

The plaintiff brought a motion to amend the Statement of Claim to increase damages to $2,000,000 and to strike the jury notice due to trial delays caused by the COVID-19 pandemic.

The defendants brought a cross-motion for further medical examinations.

The court granted leave to both parties to bring their motions after the action was set down for trial.

The court allowed the amendment to the Statement of Claim and ordered the plaintiff to attend further medical examinations.

However, the court dismissed the motion to strike the jury, finding that the defendants would be prejudiced by the loss of their litigation strategy to have the plaintiff's credibility assessed by a jury.

The applicants sought a declaration that an Agreement of Purchase and Sale (APS) for a property was null and void after the respondent purchasers failed to waive inspection and financing conditions by the deadline.

The respondents had proposed an amendment to the APS instead of waiving the conditions, which the applicants did not accept.

The respondents subsequently registered a Purchaser's Lien on the property.

The court held that the APS was null and void because the conditions were not explicitly waived or fulfilled in writing as required.

The court ordered the Purchaser's Lien discharged and the deposit returned to the respondents, finding no breach of the duty of good faith by the applicants.

The applicant tenant sought a declaration that it validly renewed its commercial lease for a five-year term.

The respondent landlord argued the renewal was invalid because the tenant was in default of its obligations to pay common area maintenance and realty taxes when it gave notice.

The court found that the parties had deviated from the strict payment terms of the lease for years, and the landlord could not retroactively assert a default without providing notice.

Furthermore, the lease contained a tenant-friendly renewal clause that allowed the tenant to cure any default and renew even after the initial deadline had passed.

The court granted the declaration that the lease was validly renewed.