SCJ 2021

The plaintiff brought a motion for partial summary judgment on the issue of liability after allegedly being injured when she fell while backing away from the defendant's dog.

The court dismissed the motion, finding that there were significant factual disputes regarding whether the dog made contact with the plaintiff, whether the incident constituted an 'attack' under the Dog Owners' Liability Act, and the extent of the plaintiff's contributory negligence.

The court concluded that a trial was necessary to resolve these genuine issues.

The plaintiff brought a summary judgment motion to enforce a second mortgage on a residential property.

The mortgagor was noted in default, and the guarantor, who was self-represented, admitted the amount owing in her statement of defence.

The court found no genuine issue for trial, granted judgment for the outstanding principal, interest, and fees totaling $492,013.20, and ordered the defendants to deliver possession of the property.

The court delayed the issuance of the judgment to allow the guarantor time to arrange mortgage refinancing.

The Attorney General of Ontario requested in writing that the applicants' Charter challenge against various COVID-19 public health measures be dismissed as frivolous and vexatious under Rule 2.1 of the Rules of Civil Procedure.

The court declined to dismiss the application at this stage, noting that Rule 2.1 is a blunt instrument reserved for the clearest of cases.

Without a full record and legal argument, the court could not conclude that the application was plainly frivolous or vexatious on its face, and directed the parties to schedule a case conference.

The accused was charged with attempted murder, aggravated assault, and possession of a loaded firearm following a shooting at a motorcycle club event.

The Crown relied on the hearsay statements of a deceased witness and an absent victim, which the court admitted under the principled exception.

The accused claimed he shot the victim in self-defence and that the bullet hitting the victim was an accident.

The court rejected the accused's evidence, finding the shooting was intentional, disproportionate, and motivated by animus.

The accused was found guilty of attempted murder and the firearm offence, with the aggravated assault charge conditionally stayed.

The accused was charged with multiple counts of possession of controlled substances for the purpose of trafficking, simple possession, and possession of property obtained by crime.

The Crown's case relied entirely on circumstantial evidence, including police surveillance of two residences and the subsequent seizure of large quantities of drugs and cash.

The court found that the Crown failed to prove beyond a reasonable doubt that the accused had knowledge and control of the prohibited substances and property, as other individuals had access to the residences and the items were not in plain view.

The accused was found not guilty on all counts.

The defendants brought a pre-emptive motion to strike paragraphs 5 to 20 of the plaintiff's affidavit filed in response to a motion regarding an alleged breach of the deemed undertaking rule.

The plaintiff consented to striking paragraphs 7 to 11 and part of 19.

The court declined to strike the remaining paragraphs, finding they were not scandalous, vexatious, or an abuse of process, and held that the judge hearing the substantive motion was in a better position to determine their admissibility.

The accused was charged with sexual assault, sexual interference, and invitation to sexual touching involving a complainant who was 13 years old at the time.

The accused, who was 18, argued he had an honest but mistaken belief that the complainant was 16 and that she consented to the sexual activity.

The court found the complainant's evidence to be fraught with inconsistencies and contradicted by an independent witness.

The court held that the Crown failed to prove beyond a reasonable doubt that the accused did not take all reasonable steps to ascertain the complainant's age, and failed to prove that the sexual activity was non-consensual.

All charges were dismissed.

The plaintiff brought a motion for summary judgment regarding a defaulted commercial loan and mortgage.

The defendants failed to appear and relied on Organized Pseudolegal Commercial Arguments (OPCA), claiming indigenous status and that the land was unceded.

The court found these defences to be nonsense, noting the defendants received the funds and defaulted on their obligations.

Summary judgment was granted in favour of the plaintiff for the debt owing, possession of the property, and substantial indemnity costs.

The plaintiff contractor registered a construction lien and claimed breach of contract damages after the defendant owner terminated their residential construction contract.

The owner counterclaimed for damages, alleging the contractor abandoned the project and left numerous deficiencies.

The court found the contract was a fixed-price agreement with cost-plus ongoing compensation and shared supervision.

The court held the owner failed to prove fundamental breach by the contractor, as most alleged deficiencies were either changes necessitated by site conditions (like sandy soil) or unfinished work, and no proper notice to correct was given.

The owner's termination amounted to wrongful repudiation.

The contractor was awarded $74,259.32 for its lien, lost management fees, and lost profit, while the owner's counterclaim was dismissed.

The representative plaintiffs moved for approval of a $10 million settlement in a class proceeding against the Crown regarding its alleged systemic negligence and breach of fiduciary duty toward former Crown wards.

The class alleged the Crown failed to pursue compensation for abuse they suffered.

Sixty former Crown wards objected to the settlement, arguing the compensation was inadequate and failed to address the actual harms suffered.

The court dismissed the motion, finding the settlement was not fair, reasonable, or in the best interests of the class, as it effectively abandoned the major claims for compensation and provided only minimal recovery after legal fees and administration costs.

The applicant mother brought a motion for interim child and spousal support and to determine the parenting schedule.

The parties agreed to a 2-2-3 shared parenting schedule and that the respondent father would employ a live-in nanny during his parenting time.

The court held that the respondent's parenting time would not be suspended if the nanny was occasionally unavailable, and that the nanny's cost was a section 7 expense to be shared proportionately.

For support purposes, the court imputed income to the respondent under section 19(1)(i) of the Child Support Guidelines based on capital distributions he received from a trust, grossing up those tax-free amounts.

The respondent was ordered to pay interim child and spousal support based on an imputed income of $327,000.

The accused was charged with sexual assault after the complainant awoke to him having sexual intercourse with her.

The complainant testified she had no memory of returning to the accused's home due to intoxication and did not consent.

The accused claimed the complainant initiated the sexual activity while they were sleeping on the couch.

The court rejected the accused's evidence, finding the complainant lacked the capacity to consent while asleep and did not consent upon waking.

The court found no air of reality to the defence of honest but mistaken belief in communicated consent and found the accused guilty.

The accused was charged with 15 counts of violent offences, including assault, assault with a weapon, aggravated assault, and uttering threats, against his former intimate partner.

The trial focused on the credibility and reliability of the complainant and the accused, who provided contradictory accounts.

Applying the W.(D.) framework, the court rejected the accused's evidence, finding it inconsistent and contradicted by text messages and photographic evidence.

The court accepted the complainant's evidence, finding that the accused exerted financial control and committed numerous acts of violence, including grinding the complainant's legs into broken glass.

The accused was found guilty on all remaining counts.

The applicants, nieces of the deceased, brought a motion for directions to challenge the validity of the deceased's 2014 Will, alleging lack of testamentary capacity and undue influence by the respondent neighbour.

The court found the applicants met the minimum evidentiary threshold by adducing evidence of the deceased's cognitive decline, delusions, and hospitalizations for confusion.

The court ordered a trial of the issues, production of solicitor and medical records, and a preservation order over the estate assets.

The Children's Aid Society brought a motion for temporary care and custody of two children, aged 7 and 2, following allegations that the mother's former partner sexually abused the 7-year-old.

The mother and paternal grandmother opposed the motion, seeking the children's return to their care.

The court found reasonable grounds to believe the children were at risk of harm if returned to the mother or placed with the paternal grandmother, citing their failure to protect the children and abide by previous supervision conditions.

The court ordered the children to remain in the temporary care of the Society, with access at the Society's discretion.

The plaintiffs, Andrew and Selena Stronach, sought leave to amend their respective statements of claim in two related actions concerning the management of the Stronach family business and trusts.

The defendants, including Belinda Stronach, opposed the amendments on several grounds, primarily arguing that references to a May 2020 Agreement were barred by settlement privilege.

The court found that the defendants failed to prove the May 2020 Agreement was intended to be kept confidential, and alternatively, that any privilege had been waived or an exception applied.

The court also rejected arguments that the amendments improperly withdrew admissions or were scandalous and vexatious.

Leave to amend the pleadings was granted.

The moving party brought a motion for the production of documents and information relating to two of the responding party's accounts: an investment account and a bank account.

The court found that the responding party had sufficiently answered the request regarding the investment account.

Regarding the bank account, the court ordered the responding party to provide an affidavit clarifying whether the account into which deposits were made was closed, or whether the account from which corresponding withdrawals were made was closed.

The motion was largely dismissed, and the responding party was awarded costs of $2,000.

The applicant brought a motion for majority parenting time with a child he alleged was his biological son.

The child had lived with the respondent step-father since birth.

The applicant relied on a privately collected DNA test that was not legally admissible.

The court ordered the respondent to make the child available for a legally admissible paternity test, noting that if paternity is established, the parties should schedule a case conference to determine parenting time based on the best interests of the child.

The applicant mother brought a motion to temporarily suspend a provision of a consent order requiring her to travel to Las Vegas with her three-year-old son for the respondent father's parenting time.

The mother cited health risks and financial burdens associated with COVID-19 travel advisories and quarantine requirements.

The court granted the motion, finding that the pandemic and related travel advisories constituted a material change in circumstances and that non-essential international travel was not in the child's best interests at the time.

The offender, a traditional Chinese medicine practitioner, was found guilty of a historical sexual assault against a patient during an examination in 1992.

The Crown sought 60 days incarceration, while the defence sought an absolute discharge.

The court emphasized the breach of trust and the need for denunciation and general deterrence, rejecting a discharge.

Considering the offender's lack of prior record, positive community contributions, and the impact of the COVID-19 pandemic, the court imposed a 60-day conditional sentence followed by three years' probation, along with mandatory DNA, weapons prohibition, and SOIRA orders.