SCJ 2021

The plaintiffs brought a motion for leave to discontinue a proposed securities class action against the defendant.

Due to increased litigation risks and the lack of an engaged representative plaintiff or class counsel willing to proceed, the plaintiffs sought to abandon the class proceeding.

The court granted the discontinuance under s. 29 of the Class Proceedings Act, 1992, finding no improper purpose and no prejudice to the defendant, who consented and received $130,000 in wasted costs.

The court also approved the form and manner of notice to putative class members.

Following the granting of interlocutory injunctions against the respondents, the applicant sought costs on a substantial indemnity basis.

The court found that the respondents engaged in deliberate and high-handed conduct by attempting to unilaterally terminate commercial leases and evict the applicant without legal basis, aiming to frustrate the court proceedings.

The court exercised its discretion to award costs immediately rather than reserving them to the trial judge, fixing costs at $58,000 and $45,000 payable forthwith on a substantial indemnity scale.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff contractor's action for unpaid 'extras' on a construction project.

The court found that the plaintiff's claims were statute-barred under the Limitations Act, 2002, as the limitation period for unpaid construction invoices begins to run after a reasonable time for delivery and payment has passed, which in this case was more than two years before the action was commenced.

Furthermore, the court held that the plaintiff had no contractual right to demand final payment because it failed to provide a required statutory declaration confirming that all sub-trades had been paid.

The motion for summary judgment was granted and the action was dismissed.

The plaintiff, a creditor of a bankrupt lawyer, sought to proceed with an action to collect a debt allegedly owed by the defendant, a former client of the lawyer.

The defendant moved to dismiss the action for delay, citing the 11.5 years since the action commenced.

The court found that while the delay was inordinate, it was excusable due to the lawyer's bankruptcy and the time required for the plaintiff to obtain a section 38 order under the Bankruptcy and Insolvency Act.

The court also found no substantial risk to a fair trial, as relevant documents and witnesses were available.

The defendant's motion to dismiss was denied, and the action was allowed to proceed.

The plaintiff brought a motion to strike the defendant's jury notice in a motor vehicle accident action due to the suspension of civil jury trials during the COVID-19 pandemic.

The court found that the anticipated lengthy delay in scheduling a jury trial would cause significant prejudice to the plaintiff, including financial hardship and the cost of updating expert reports.

The court provisionally struck the jury notice, ordering that it be automatically reinstated if juries are being empanelled when the matter is called to trial.

The accused, charged with sexual assault, brought a motion seeking disclosure of police occurrence reports and investigative notes relating to interactions between the complainant, the accused, and the police shortly after the alleged offence.

The Crown argued the materials were third-party records subject to the regime under section 278.1 of the Criminal Code.

The court held that the records were intertwined with the allegations, constituted the fruits of the investigation, and did not carry a reasonable expectation of privacy.

Consequently, the court ruled the materials were first-party disclosure governed by Stinchcombe and ordered their production.

The applicant, a young person charged with second-degree murder and firearms offences, brought a Charter application alleging violations of his rights under sections 10(a) and 12 during his arrest.

The police executed a search warrant using a dynamic entry and a violent struggle ensued when the applicant resisted arrest, resulting in officers punching him multiple times to gain control and seize a loaded firearm.

The court dismissed the application, finding that the section 10(a) right to be informed of the reasons for arrest did not accrue until the applicant was safely detained, which was delayed by his own actions.

Furthermore, the court held that the force used by the police was reasonable and justified under the circumstances, resulting in no section 12 violation.

The applicant condominium corporation sought an urgent order requiring the respondent unit owners to cease and desist from conduct contravening the Condominium Act, the corporation's rules, and a municipal mask by-law.

The respondents were found to have created excessive noise, engaged in aggressive and harassing behaviour towards residents and staff, failed to wear masks on common elements, and improperly parked vehicles.

The court granted a compliance order and declared the respondents in breach of sections 117 and 119 of the Condominium Act, with leave for the corporation to seek a forced sale of the units if future breaches occur.

The applicant, charged with sexual interference and sexual assault, brought an application for a stay of proceedings alleging a violation of his right to a trial within a reasonable time under s. 11(b) of the Charter.

The total delay was calculated at 48 months.

The court deducted 19 months and 21 days of defence delay, primarily attributed to a late adjournment caused by defence counsel's failure to notice a potential s. 276 issue in the disclosure.

The resulting net delay of 28 months and 9 days fell below the 30-month presumptive ceiling.

Furthermore, the court found that the COVID-19 pandemic constituted a discrete exceptional event that justified the remaining delay.

The application was dismissed.

The respondent mother, residing in China with the parties' younger child, sought leave to bring an urgent motion to renew the child's passport without the applicant father's consent to enroll the child in school.

The applicant father did not respond to the motion but had previously indicated a desire to finalize a comprehensive parenting plan.

The court dismissed the motion, finding it was not urgent as contemplated by the Family Law Rules, noting the respondent had been outside Canada since 2017 and had ample time to pursue a resolution of outstanding issues.

The applicant beneficiary brought an application under Rule 74.15 seeking extensive disclosure of the deceased's bank and medical records, and an examination under oath of the respondent executor.

The respondent, acting as executor de son tort, had provided informal accountings but resisted the broad demands, noting that the disputed assets (a cottage and TFSA) passed outside the estate prior to death.

The court dismissed the application, finding the demands excessive and unsupported by evidence of incapacity or undue influence.

The court permitted the respondent to proceed to a formal Passing of Accounts without requiring a Certificate of Appointment.

The defendant Atrium brought a motion to amend its Statement of Defence and Crossclaim and to withdraw admissions made during pre-trial conferences regarding causation and the condition of the stairs where the plaintiff slipped and fell.

The plaintiff brought a cross-motion for judgment based on those admissions.

The court found that Atrium had made clear, binding admissions that the condition of the stairs caused the fall and that there was a breach of the standard of care.

Applying the three-part test for withdrawing admissions under Rule 51.05, the court denied Atrium's request because it failed to provide a reasonable explanation for the withdrawal.

The plaintiff's cross-motion for judgment under Rule 51.06(2) was also dismissed because the core issue of which defendant was the 'occupier' remained undetermined.

The applicant sought bail pending his appeal of a sexual assault conviction and a 15-month sentence.

While the applicant met the criteria for showing the appeal was not frivolous and that he would surrender into custody, the court found his detention was necessary in the public interest.

The court noted the applicant's recent diagnoses of severe mental health issues and subsequent charges for attempted murder and assault while on bail.

The application for bail pending appeal was dismissed, but the court ordered the appeal hearing to be expedited.

The respondent wife brought a motion for temporary spousal support.

The parties were married in India and the applicant husband sponsored the wife to come to Canada, signing a three-year Sponsorship Agreement.

They separated after 14 months of marriage.

The wife was receiving social assistance and retraining as a pharmacy technician.

The court departed from the Spousal Support Advisory Guidelines due to the short marriage and the Sponsorship Agreement, conducting a means and needs analysis.

The husband was ordered to pay $1,000 per month in temporary spousal support until June 2022, and $2,500 in costs.

The representative plaintiff brought a motion for approval of a $5,000,000 settlement in a class proceeding against a Children's Aid Society regarding a privacy breach where confidential client information was leaked online.

The court found the settlement fair, reasonable, and in the best interests of the class.

The court also approved class counsel's contingency fee of approximately $1.6 million plus disbursements, applying the Smith Estate factors, and approved a $5,000 honorarium for the representative plaintiff to be paid from counsel's fees.

The applicant brought a motion for substituted service on the respondent, who resides in the United States and was evading service.

The applicant proposed service by email and Facebook messenger.

The court noted that under the Hague Service Convention, service by email or social media is not authorized, but service by postal channels is permitted.

The court granted substituted service by regular first class and registered mail to the respondent's address in Texas.

The applicant, charged with firearms and drug offences, brought an application for a stay of proceedings under s. 11(b) of the Charter, arguing unreasonable delay.

The total delay from the date of the charges to the anticipated end of the trial was 39.25 months.

After deducting 4.5 months of defence delay, the net delay was 34.75 months, exceeding the 30-month presumptive ceiling set in Jordan.

However, the court found that the COVID-19 pandemic constituted a discrete exceptional event.

The court deducted 14.25 months of delay caused by the pandemic, bringing the remaining delay to 20.5 months, well below the presumptive ceiling.

The application for a stay of proceedings was dismissed.

The plaintiff sought costs after successfully resisting the defendants' motions to strike and for summary judgment.

The court awarded the plaintiff $7,500 in costs for the motion to strike.

However, the court denied the plaintiff costs for the summary judgment motion because the plaintiff's principal sent an improper email threatening the defendants with criminal charges to extort a settlement.

A non-party in an estate litigation matter brought a motion seeking the recusal of the presiding judge, alleging a reasonable apprehension of bias.

The non-party argued that the judge breached natural justice by disclosing an ex parte Mareva injunction motion to opposing counsel and dismissing it without reading the materials.

The court dismissed the recusal motion, finding no cogent evidence to overcome the strong presumption of judicial impartiality, noting that the materials were reviewed, written reasons were provided, and the existence of the motion was public information.

On an interim family motion, the applicant sought retroactive and increased ongoing spousal support, and a determination of whether child support for an adult child had ended.

The court held that conflicting affidavit evidence and unresolved income issues made retroactive relief inappropriate on an interim record, particularly where the applicant was effectively seeking final relief before trial.

The court found prima facie entitlement to spousal support, but maintained the status quo at the amount fixed in the parties' addendum because there was no demonstrated financial hardship or urgency.

Child support was terminated as of December 31, 2020 based on the respondent's admission, with any earlier termination date left for trial.