SCJ 2021

Following a conviction for mischief, the Crown applied for a psychiatric assessment under s. 672.11(b) of the Criminal Code to determine if the accused was not criminally responsible (NCR) due to a mental disorder.

The self-represented accused opposed the application.

The court reviewed a previous psychiatric report and the accused's trial testimony, which demonstrated persistent persecutory delusions.

The court found reasonable grounds to doubt the accused's criminal responsibility and ordered the assessment.

The applicant, a representative plaintiff in a U.S. class action regarding unsolicited telemarketing voicemails, sought to enforce Letters of Request to compel the respondent Ontario corporation to attend a deposition.

Following delays in obtaining a protective order in the U.S. action, the applicant moved to add a U.S. defendant as a party to the application and to impose an outside date for the deposition.

The court granted the order, adding the U.S. defendant as a necessary party and setting an outside date of February 4, 2022, for the completion of the deposition.

The plaintiffs brought a motion for default judgment regarding a dispute over a boat allegedly included in a real estate purchase.

The court previously ordered the plaintiffs to serve the motion record on the defendants.

The plaintiffs served the materials on lawyers who had not formally gone on the record for the defendants.

The court held that delivery to lawyers who are not counsel of record is not proper service under Rule 16.01(4)(b) and ordered the plaintiffs to serve the defendants personally or by an alternative to personal service.

The plaintiff in a wrongful dismissal action requested a case conference to schedule dates for discovery and mediation after the defendant delayed proceedings due to internal HR turnover.

The court established a litigation timetable, ordering examinations for discovery to be completed by January 14, 2022, and mediation by February 4, 2022.

The defendant, Great Lakes Nickel Limited (GLN), brought a motion to vary three previous orders and release $900,000 paid into court back to GLN.

GLN argued that following a partial summary judgment decision, it could no longer be found liable for damages.

The plaintiffs opposed, arguing the fraudulent conveyance action against GLN was still active and the funds were necessary to satisfy a potential judgment.

The court dismissed the motion, finding that the foundation for the orders remained because the fraudulent conveyance claim was ongoing and the funds were GLN's only asset.

In a wrongful dismissal action, the plaintiff amended their statement of claim against individual directors under s. 248 of the OBCA following a Court of Appeal decision.

The defendants brought a second motion to strike the amended claim, arguing it remained deficient.

At a case conference, the court determined it could not resolve the issue on a limited record and scheduled the defendants' motion to strike for a later date, while encouraging the parties to proceed with discovery and mediation.

The plaintiff in a wrongful dismissal action requested a case conference to schedule examinations for discovery and mediation, citing unresponsiveness from the defendant's counsel.

The court found the request premature and inappropriate, as the plaintiff had not yet delivered a sworn Affidavit of Documents or a Notice of Examination for Discovery.

The court declined to schedule the discoveries, directed the parties to utilize the Rules of Civil Procedure, and awarded $250 in costs to the defendant for the unnecessary case conference.

The plaintiffs and certain defendants consented to vary a previously granted Mareva injunction.

The consent order unfreezes three bank accounts belonging to the consenting defendants and directs the transfer of funds from one account to the plaintiffs' solicitor's trust account, to be held pending further order or written consent.

The court granted the order as requested.

A case conference was held to schedule the defendants' motion for summary judgment.

The self-represented plaintiff failed to attend the case conference and had blocked emails from the court.

The case management judge established a timetable for the summary judgment motion and ordered that the defendants serve their materials on the plaintiff by personal service.

The plaintiff was rendered a quadriplegic after diving into a shallow above-ground pool at his aunt's farm.

He brought an action against the defendant, a friend of his cousin, who had assisted in moving a wooden platform next to the pool a few weeks prior to the accident.

The court found that the defendant was not involved in the design or construction of the platform, and merely helped move it.

The court held that the plaintiff's injury was not a reasonably foreseeable consequence of the defendant's actions, and there was insufficient proximity to establish a duty of care.

The action was dismissed.

The plaintiff brought a motion for summary judgment.

The defendant argued the matter was not ready to proceed due to outstanding undertakings and refusals from cross-examination.

The plaintiff agreed to answer all undertakings and refusals within 24 hours and admitted negligence for the purpose of the motion.

The court ordered the summary judgment motion to proceed as scheduled and modified the timetable for the delivery of factums.

The defendants brought a motion to set aside a noting in default.

The plaintiffs had commenced an action for breach of trust and unjust enrichment, and noted the defendants in default after they failed to deliver a Statement of Defence.

The defendants' daughter, acting as attorney for property for her father who suffered from vascular dementia, explained the delay was due to inadvertence and difficulty locating documents.

The court found the defendants demonstrated an intent to defend, the delay was not significant, and there was no prejudice to the plaintiffs.

The motion was granted, the noting in default was set aside, and the daughter was appointed litigation guardian for her father.

The defendants brought a motion to dismiss the plaintiffs' action for delay under Rules 48.14 and 24.01 of the Rules of Civil Procedure.

The plaintiffs brought a cross-motion to extend the deadline to set the action down for trial.

The court found that the plaintiffs had an acceptable explanation for the delay, which included the time required to comply with undertakings, retain experts, and the impact of the COVID-19 pandemic.

The court also found that the defendants failed to establish non-compensable prejudice.

The defendants' motion was dismissed, and the plaintiffs' cross-motion was granted, establishing a timetable for mandatory mediation and setting the action down for trial.

The applicants sought an order declaring that the respondent insurer had a duty to defend and indemnify them in an underlying trip and fall action.

The incident occurred during a gap period between written service contracts with a landscaping contractor insured by the respondent.

The applicants argued an implied contract existed during the gap period.

The court dismissed the application, finding it fatally flawed because the landscaping contractor was not named as a respondent and could not have a ruling made against its interests without an opportunity to be heard.

The applicant father brought an urgent motion to reinstate his parenting time after the respondent mother withheld the children based on allegations of physical abuse and excessive drinking.

The mother had reported the allegations to police and child protective services, but no restrictions had been placed on the father's parenting time by the agency.

The court ordered a temporary 5-day alternating parenting schedule pending an early case conference and the completion of the agency's investigation.

The plaintiff sought to continue an ex parte Mareva injunction and certificates of pending litigation (CPLs) against the defendant, Mornan, in relation to an $8 million cellphone robbery.

Mornan brought a cross-motion to set aside the orders.

The court found the plaintiff failed to make full and frank disclosure on the original ex parte motion, misstating the defendant's criminal charges and involvement.

The court also found the plaintiff failed to establish a strong prima facie case or a real risk of dissipation.

The Mareva injunction and CPLs were set aside, and the defendant was awarded full indemnity costs.

Following a five-week common issues trial in a medical malpractice class action, the plaintiff was entirely successful against the main defendant doctor.

The doctor had crossclaimed against several nurse defendants, but those claims were entirely unsuccessful.

The court ordered the doctor to pay the plaintiff's agreed-upon costs within 30 days, rejecting his argument to defer payment until individual trials were completed.

The court also made a Sanderson/Bullock order, requiring the doctor to pay the costs of the successful nurse defendants on a partial indemnity scale up to the date of their offers to settle, and on a substantial indemnity scale thereafter.

During a trial for sexual assault and sexual interference, the defence sought to introduce expert opinion evidence regarding the accused's cognitive and intellectual functioning.

The Crown opposed the admission, arguing the proposed expert lacked independence and relied on hearsay.

The court found that while the expert was adequately qualified, he acted as an advocate for the accused rather than an independent witness for the court.

Furthermore, the expert's opinions were based almost entirely on inadmissible hearsay from the accused and his mother.

Consequently, the application was dismissed and the expert evidence was ruled inadmissible.

In this costs endorsement following success in a wrongful dismissal action, the plaintiff sought substantial indemnity costs of the action after obtaining summary judgment on liability, succeeding on appeal, and later receiving damages.

The court reviewed the governing principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing reasonableness, proportionality, and settlement conduct.

Although the defendant had taken a hard line in settlement and prolonged the litigation, the court held that substantial indemnity was not warranted.

Costs were fixed on a partial indemnity basis in an amount the court found fair and reasonable in light of the complexity, duration, importance of the issues, and the plaintiff's success.

The respondent in an application to set aside an international arbitral award brought a motion to strike three affidavits filed by the applicant.

The court determined that the test for admitting fresh evidence on an application to set aside an international arbitral award on procedural fairness grounds is akin to the test applied on judicial review, which requires reasonable diligence, rather than the Palmer test for appeals.

Applying this test, the court struck two affidavits in their entirety because the evidence could have been raised before the arbitral tribunal.

The court also struck portions of a third affidavit that contained improper opinion evidence and speculation.