SCJ 2021

During a common issues trial concerning the impact of Bovine Spongiform Encephalopathy (BSE) on Canadian farmers, the plaintiff sought to admit the affidavit and cross-examination transcript of a deceased witness, Mr. Mel McCrea.

The defendant, the Attorney General of Canada, objected on the basis of necessity, arguing that other witnesses could provide similar information.

The court applied the principled exception to the hearsay rule, finding that Mr. McCrea's evidence met both the necessity and reliability thresholds.

The court emphasized the unique nature of Mr. McCrea's first-hand account regarding the first Canadian-born BSE-diagnosed cow and the prior cross-examination, ruling the evidence admissible.

The applicants jointly sought a declaration validating their religious marriage celebrated in India, which they failed to register locally due to returning to their respective home countries at the onset of the COVID-19 pandemic.

The court applied the four-part test under s. 31 of the Marriage Act but found insufficient evidence to grant the relief.

Specifically, there was no evidence explaining why the marriage could not be registered in India, whether it complied with local laws, or that the parties cohabited as a married couple after solemnization.

The application was dismissed with leave to reapply with further evidence.

This decision concerns the award of costs following a successful application for specific performance of a real estate transaction.

The applicant sought substantial indemnity costs, totaling over $108,000.

The respondents argued the costs were excessive and that they lacked the means to pay.

The court awarded substantial indemnity costs, finding the respondents' conduct throughout the litigation warranted such a sanction.

The judge cited the respondents' actions in raising baseless issues, causing delay and friction, the asymmetrical importance of the issues to the parties, and the advancement of unproved allegations of dishonesty as key factors justifying the award.

The respondent brought a motion to terminate her child support obligations for two adult children, arguing they were no longer enrolled in educational programs and thus not "children of the marriage" under the Divorce Act.

The applicant opposed, asserting the children remained dependants and sought to stay the motion due to arrears.

The court denied the stay, finding the respondent's arrears did not warrant it.

The court determined that while a "gap year" is permissible, the children's extended periods out of school, by choice, meant they no longer qualified for support.

Child support for one child was terminated effective December 2019 and for the other effective June 2020, resulting in a significant overpayment to the respondent.

The decision was made without prejudice to future applications if the children re-enroll.

The defendant, Nima Priyeshakbari, brought a motion to strike portions of the plaintiff's claim, which asserted allegations of fraud, conspiracy, fraudulent conveyance, and insufficient particularity regarding an interest in land and documents/conversations.

The plaintiff alleged that the defendants conspired to unlawfully convert a property in which she had invested, selling it below market value to deprive her of her investment.

The court applied the "plain and obvious" test for striking pleadings, accepting the plaintiff's alleged facts as true unless patently ridiculous.

The court found that the plaintiff's claim met the necessary particularity requirements for fraud and conspiracy, noting that knowledge can be alleged as a fact without pleading circumstances.

The court also clarified that the Land Titles Act does not ban trusts but rather defines how third parties deal with registered owners.

The motion to strike was dismissed.

This costs endorsement followed a motion where the Plaintiffs were granted leave to amend their Statement of Claim, a motion unopposed by the Defendants except on the issue of costs.

The Defendants sought costs on a substantial or partial indemnity basis, while the Plaintiffs sought partial indemnity costs.

The court found that the Plaintiffs' conduct, characterized by delay and inadvertence, caused the Defendants to incur unnecessary costs, but did not warrant substantial indemnity.

The Master determined that the Defendants' claimed hours and quantum were disproportionate given the nature of the amendments.

Ultimately, the Plaintiffs were ordered to pay fixed costs of $7,000 to the Defendants.

The plaintiff, an unpaid trade supplier, brought a motion for default judgment against two defendants (ATD Contracting and Justin Rubatscher).

While the amount owed by ATD Contracting was adequately established, the court found insufficient evidence to grant judgment on the guarantee (due to the guarantee's effective date), interest calculations (conflicting rates and start dates), and trust remedies (lack of foundational evidence regarding funds received under the Construction Act).

The court declined to grant partial judgment, citing strong guidance from the Court of Appeal against it, and instead directed the matter to proceed by way of a viva voce hearing to address the evidentiary gaps and allow the case against all defendants, including a third defendant subject to bankruptcy proceedings, to be heard concurrently.

The applicant, a federal inmate, sought habeas corpus with certiorari in aid to challenge his reclassification from medium to maximum security and subsequent involuntary transfer.

The court found the Correctional Service of Canada's decision to be reasonable and procedurally fair, based on a holistic review of the applicant's conduct, including involvement in contraband importation and prior misconducts.

The application was dismissed, and the applicant was ordered to pay costs.

The appellant, Ali Fahad, appealed his conviction for refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code.

The appellant argued that the trial judge erred in finding that the Crown proved a lawful Approved Screening Device (ASD) demand, given the absence of evidence regarding the exact words used by the officer and errors in police notes and advice.

The court found that while exact words are not always necessary, the absence of evidence of the demand's content, coupled with the officer's errors, rendered the conviction unreasonable.

The appeal was allowed, the conviction was set aside, and a new trial was ordered.

The Applicant father brought an urgent motion for a temporary shared parenting schedule for the child, Olive Grace Murray.

The Respondent mother opposed, seeking limited supervised access and communication through an app, and also requested child support (which the court declined to consider).

The court reviewed the parties' history, including a prior shared parenting arrangement that the mother unilaterally stopped, and the mother's concerns about the father's conduct and mental health.

Applying the "best interests of the child" principle and the desirability of maximizing contact, the court found no compelling reasons to alter the status quo of shared parenting.

The motion was granted, restoring the shared parenting schedule with third-party exchanges and communication via a designated app.

The applicant sought a variation of a child support order and rescission of significant arrears under the Interjurisdictional Support Orders Act, 2002.

A UK reciprocating court provisionally reduced the arrears, but the Ontario court found the provisional decision's factual conclusions unsupported by evidence.

The court declined to confirm the provisional order, requiring the applicant to provide further evidence regarding his income, employment history, and reasons for leaving Canada, emphasizing the payor's blameworthy conduct in evading obligations and the best interests of the children.

The matter was adjourned, and all outstanding arrears remained owing.

The plaintiff, Celia Yang, claimed $150 million in damages against her insurer and various service providers, alleging misconduct in the administration of her statutory accident benefits (SABs) claims.

The defendants brought a motion to strike the statement of claim, arguing it contravened pleading rules, the court lacked subject matter jurisdiction (as SABs disputes fall under the exclusive jurisdiction of the Licence Appeal Tribunal), and the claims failed to disclose a reasonable cause of action (including breach of Charter, PIPEDA, tort of bribery, spoliation, breach of contract, inducing breach of contract, fiduciary duty, and conspiracy).

The court dismissed the action, finding the statement of claim scandalous, the court lacked jurisdiction over SABs-related complaints, and the pleaded causes of action were untenable.

The respondent brought a motion to change a child support order, seeking termination of support for two children, Andrea and Alysha, on the basis that they were no longer in full-time post-secondary education.

The court confirmed no further child support obligation for Andrea.

For Alysha, child support was terminated effective September 1, 2020, as she was not enrolled in post-secondary education.

The respondent's request for future financial disclosure from the applicant regarding Alysha's potential future enrolment was granted.

The applicant's cross-motion to fix child support arrears was dismissed without prejudice, as it was deemed an issue for final determination, not a temporary motion, and the basis of the calculation was not adequately disclosed to the court or opposing counsel.

This case involved an alleged sexual assault.

The complainant's testimony was found to be highly unreliable due to profound inconsistencies with medical evidence and prior statements, and a lack of corroborative evidence.

The court also found contradictions from another Crown witness whose testimony was deemed credible and exculpatory.

The charge was dismissed due to reasonable doubt.

Following a four-week parenting trial where the applicant father was granted custody, he sought full recovery of his costs.

The court found that the respondent mother had acted in bad faith throughout the proceeding by spoofing emails, falsifying documents, and actively sabotaging the father's parenting time.

Applying Rule 24(8) of the Family Law Rules, the court awarded the father full recovery of his costs in the amount of $438,188.77, noting that the mother's conduct was designed to inflict maximum emotional and financial harm.

This decision concerns the sentencing of J.T. for failing to attend court, contrary to section 145(2)(b) of the Criminal Code.

J.T. was convicted after absconding during the 13th day of his second trial for sexual abuse and exploitation, fleeing to British Columbia, and assuming a new identity.

The Crown sought an 18-month sentence, while the defence proposed 3-6 months.

The court considered aggravating factors, including absconding mid-trial and assuming a new identity, and mitigating factors such as the offender's age, permanent residence in Canada, and impending deportation.

The judge imposed a 12-month sentence, less pre-sentence custody, emphasizing deterrence, denunciation, and respect for the law, and a 3-year probation order.

This is a costs endorsement following a ten-day family law trial.

The trial addressed decision-making responsibility and parenting schedules for two children, and the winding up of a family trust.

The respondent achieved substantial success on the primary issues of decision-making and residency for one child, and a shared parenting schedule for the other.

The applicant's conduct was deemed unreasonable, particularly her refusal to communicate and make settlement offers.

The court awarded the respondent 75% of his actual costs, totaling $78,768.00, finding the amount reasonable and proportionate given the respondent's success and the applicant's unreasonable behaviour.

This endorsement addresses procedural issues arising from a prior order in a family law matter concerning child support.

The court clarifies the scope of motions, enforces strict filing limits, and dismisses numerous requests for disclosure and questioning as premature or outside the established timetable.

The judge emphasizes adherence to previous directions and the Notice to the Profession, aiming to streamline the proceedings for the temporary child support motion.

The defendant, Visiting Angels Inc., moved for summary judgment to dismiss the plaintiff's claim alleging conversion, negligence, vicarious liability, and intentional infliction of emotional distress.

The claims arose from alleged theft and damage of items during a home cleaning service.

The plaintiff opposed the motion and sought to transfer the matter to Small Claims Court.

The court granted the defendant's motion for summary judgment, finding no genuine issue for trial as the plaintiff failed to provide reliable evidence to substantiate her claims of ownership, loss, or damage, or to link the alleged torts to the defendant.

This endorsement arises from a pre-trial conference where the defendants, Perrera and Yu, sought to bring a motion for disclosure of a settlement between the plaintiffs and co-defendants, arguing its relevance to the action against them.

The plaintiffs maintained the settlement was privileged.

The court scheduled the defendants' disclosure motion and addressed the possibility of a trial adjournment, stating the trial should proceed as scheduled but allowing for a renewed adjournment request if new information arises from the disclosure motion.

The issue of costs for the pre-trial conference was reserved to the trial judge.