SCJ 2021

In a supplemental endorsement following a successful derivative action, the court clarified the award of prejudgment interest and costs.

The court awarded prejudgment interest at the prescribed rate from the date the action was regularized.

The court rejected the third parties' request for full indemnity costs under the Business Corporations Act, confirming the previous partial indemnity award of $125,000, but clarified that the costs are payable solely to the third parties who funded the litigation, rather than jointly with the plaintiff company.

The accused was tried on one count of sexual assault arising from an allegation that, while the complainant slept on a sofa after a social gathering, he manipulated her hand onto his penis.

The court ruled on pre-trial evidentiary issues, admitting certain prior consistent statements only for narrative, state of mind, or spontaneous reaction purposes, and refusing to admit alleged prior conduct as discreditable conduct beyond narrative.

Applying the W.(D.) framework, the court found the accused's evidence strong and materially consistent with other witnesses, while identifying numerous credibility concerns in the complainant's evidence, including inconsistencies relating to post-incident conduct, social media searches, police communications, finances, and an extortion letter.

The Crown failed to prove the charge beyond a reasonable doubt, and an acquittal was entered.

The applicant homebuilder abandoned its application against the respondent warranty corporation shortly before the scheduled hearing, after the respondent had incurred significant costs preparing its defence.

The respondent sought costs on a substantial indemnity scale, arguing the applicant unreasonably delayed abandoning the flawed application after an earlier injunction was dismissed.

The court agreed, finding the applicant's conduct in forcing the respondent to actively defend a doomed application warranted sanction.

Costs were fixed at $72,500 on a substantial indemnity scale.

The appellant appealed his summary convictions for breach of recognizance and resisting a peace officer, arguing the trial judge erred in dismissing his Charter applications.

The appeal judge found that the trial judge erred in law by placing the onus on the defence to establish a section 8 Charter breach for a warrantless search.

The appeal judge concluded that the police violated the appellant's section 8 rights by seizing his wallet to obtain identification for a CPIC check during an investigative detention.

Applying section 24(2) of the Charter, the court excluded the identity evidence, allowed the appeal, set aside the convictions, and entered acquittals.

The accused was charged with multiple firearm offences after a prohibited handgun was found under the front passenger seat of a vehicle he was driving.

The case turned on circumstantial proof of knowledge and control, including proximity to the firearm, the degree of its visibility, the presence of alleged firearm-related items in the centre console, and the accused’s departure and flight when tactical officers approached.

Applying the circumstantial evidence framework from Villaroman and the principles governing after-the-fact conduct, the court held that guilt was not the only reasonable inference available.

The court further held that a reasonable alternative explanation for the accused’s flight, including fear arising from the reality of anti-Black racism and police interaction, had to be considered.

The Crown failed to prove knowledge beyond a reasonable doubt, and the accused was acquitted on all counts.

The defendants brought a motion to have a 2015 action tried together with two earlier actions (the Loan Actions) which had already been ordered to be tried together.

The court dismissed the motion, finding that the 2015 action did not arise out of the same transaction or occurrence as the Loan Actions, and there were no common questions of fact or law.

Furthermore, the court noted the defendants' unexplained delay in bringing the motion, which would have unnecessarily delayed the trial of the 2015 action currently scheduled to proceed.

The plaintiffs brought a motion for contempt after the defendants failed to attend examinations in aid of execution and multiple subsequent court appearances.

One defendant appeared at the motion and was ordered to attend a rescheduled examination.

The other defendant failed to appear again, and the court issued a bench warrant for his arrest, with his next appearance to consider an order of contempt.

The Law Foundation of Ontario brought a motion for directions regarding its statutory authority to administer the Class Proceedings Fund during the individual issues stage of a class action.

The court held that the Law Foundation has the statutory authority to provide litigation support and adverse costs protection for individual issues trials, but is not obliged to do so even if it funded the common issues stage.

Furthermore, the court determined that the Law Foundation's statutory levy applies to all recoveries, including individual issues judgments, regardless of whether it provides funding for that specific stage.

The offender was convicted of two counts of assault and multiple firearm offences, including possession of a loaded prohibited firearm while subject to three prohibition orders.

The court considered the offender's background as a Black Canadian refugee, an eight-year gap in his criminal record, and the harsh conditions of his presentence custody involving 290 days of lockdowns.

The court imposed a total sentence of 40 months, reduced by 28 months of presentence custody credit, leaving 12 months to serve, followed by 12 months of probation.

The applicant commercial tenant brought an urgent application to recover possession of leased premises after being locked out by the respondent landlord for non-payment of a security deposit.

The parties had orally agreed to an installment plan for the deposit, but the tenant missed the first payment.

The landlord issued a notice of default and terminated the lease shortly after.

The court found that while there was an oral agreement for installments, there was no agreement to waive the five-business-day notice period required by the lease for default of Additional Rent.

Therefore, the termination was premature and unlawful.

The court ordered the landlord to restore possession to the tenant, conditional on payment of the deposit and rent.

The accused was stopped for a traffic violation.

The police officer smelled freshly burnt marijuana and the accused admitted to smoking earlier.

The officer searched the vehicle under the Cannabis Control Act and found drugs.

The accused brought an application to exclude the evidence, arguing breaches of his s. 8 and s. 10(b) Charter rights.

The court found the officer lacked reasonable grounds to search the vehicle, violating s. 8, and that an unexplained 17-minute delay in providing rights to counsel violated s. 10(b).

Applying the Grant framework, the court excluded the evidence under s. 24(2), finding the Charter-infringing conduct serious and the impact on the accused's rights significant.

The plaintiff sued his former lawyer for negligence, alleging that a 1999 settlement of his accident benefits and tort claims was improvident.

The defendant lawyer brought a motion for summary judgment, arguing the claim was statute-barred.

The court granted the motion, finding that the plaintiff knew or ought to have known within five years of the settlement that his income was inadequate to meet his needs, which would give rise to a plausible inference of liability.

The action was dismissed.

Following a family trial and subsequent reopened evidentiary process, the court determined the remaining issues of spousal support quantum, form of payment, and post-separation reimbursements between former spouses after a long-term marriage.

Applying the Divorce Act and the appellate framework governing lump sum support, the court held that support should be fixed near the mid-range of the SSAG and paid as a lump sum to achieve a clean break, avoid ongoing litigation, and reflect the parties' retired circumstances.

The court ordered lump sum spousal support of $175,000.

The court also accepted uncontradicted affidavit evidence and ordered reimbursement of $34,762.64 for utilities, HELOC carrying costs, and one-half of matrimonial home carrying costs paid post-separation.

The accused was charged with aggravated assault, uttering death threats, mischief under $5,000, and breach of recognizance following an altercation with his girlfriend at a family gathering.

The complainant suffered a broken jaw after the accused punched her once in the face.

The accused raised self-defence, testifying that the heavily intoxicated complainant lunged at him with a large pair of scissors.

The court found the accused's and his witnesses' evidence more reliable than the complainant's.

The court held that the Crown failed to disprove self-defence beyond a reasonable doubt, as the accused reasonably believed he was in imminent danger and his response was reasonable in the circumstances.

The accused was acquitted of all charges.

The offender was convicted of assault, sexual assault, uttering threats, and mischief against his former domestic partner.

The sexual assaults involved non-consensual anal intercourse and intercourse while the victim was tied up.

The court weighed the serious aggravating factors of domestic violence and the profound impact on the victim against mitigating factors, including the offender's lack of a prior criminal record, compliance with bail, and Indigenous heritage.

Emphasizing denunciation and deterrence, the court sentenced the offender to a total of 3.5 years in custody, along with a DNA order, weapons prohibition, and a non-communication order.

The plaintiff brought a motion to conditionally strike the defendant's jury notice in a personal injury action arising from a 2008 motor vehicle accident.

The trial had previously resulted in a mistrial in January 2020 due to the plaintiff's health crisis.

Citing the ongoing COVID-19 pandemic and the resulting backlog of civil jury trials in Brampton, the plaintiff argued that further delay would cause prejudice, particularly regarding income loss limits and increasing statutory deductibles under the Insurance Act.

The court granted the motion, conditionally striking the jury notice to allow the trial to proceed before a judge alone if a jury trial could not be accommodated during the January 2022 sittings.

The defendants brought a motion to amend their statement of defence in an action concerning the removal of a boundary tree during construction.

The self-represented plaintiff opposed the amendments, arguing they constituted a withdrawal of admissions regarding the tree's location, would cause non-compensable prejudice due to an expired limitation period, and included untenable defences.

The court allowed most of the amendments, finding the original statements about the tree's location were mis-pleadings rather than intentional admissions, and that the plaintiff would not suffer non-compensable prejudice.

However, the court refused leave to add paragraphs alleging defamation and bad faith, finding them vexatious and lacking sufficient particulars.

In a judge-alone criminal trial involving multiple intrafamilial sexual offence allegations, the court assessed the evidence of child complainants and an adult complainant describing abuse said to have occurred during childhood.

Applying the principles governing assessment of children's evidence, the court accepted the evidence of two complainants on the core acts of sexual touching, despite inconsistencies on peripheral details and timing.

The court rejected another complainant's allegation because stark differences between two statements and the possibility of inadvertent tainting after family discussions created a reasonable doubt.

Findings of guilt were entered for sexual interference and sexual exploitation relating to one complainant, and for one count of sexual interference relating to another; the accused was acquitted on the remaining counts.

The plaintiff developer brought a motion for summary judgment against the defendant purchasers for breach of an agreement of purchase and sale for a residential property.

The defendants failed to close the transaction after requesting multiple extensions and failing to secure financing.

The court found no genuine issue requiring a trial, rejecting the defendants' arguments regarding alleged misrepresentations and property valuation.

The plaintiff was awarded $381,971.72 in damages, representing the difference in resale price and carrying costs, plus $22,000 in costs.

At a case conference for a certified class action claiming $1.5 billion for understated fuel consumption, both parties had brought summary judgment motions.

Given the complexity of the case, which involves nearly two dozen expert witnesses and significant technical data, the court endorsed the parties' proposal to proceed with a 4-week hybrid trial rather than a 'trial in a box' summary judgment motion.