SCJ 2021

The plaintiff was previously successful on a motion to amend her statement of claim on the basis of misnomer.

The parties could not agree on costs.

The plaintiff sought partial indemnity costs of $6,069.30, while the respondents argued there should be no costs because the amendment was an indulgence.

The court agreed with the respondents, finding that the relief granted was discretionary and constituted an indulgence.

Given the plaintiff's delay and the respondents' reasonable opposition, the court ordered no costs for the motion.

The plaintiff contractor sued the defendant homeowners for unpaid amounts and extras on a home renovation project.

The defendants counterclaimed for overpayment and deficiencies, arguing the contract was for a lower 'turn-key' price.

The court found the contract price was $183,500 plus HST, and the defendants breached the contract by unreasonably terminating it.

The plaintiff was awarded the balance owing plus proven extras on a quantum meruit basis, less credits for incomplete and deficient work, resulting in a net judgment of $61,940.73 for the plaintiff.

The plaintiff brought a motion to compel answers to refusals arising from cross-examinations on affidavits filed by the defendant in support of her pending anti-SLAPP motion.

The underlying action involves claims of defamation and misfeasance in public office against a municipal councillor.

The court applied the test for relevance on a motion, balancing the scope of the anti-SLAPP motion with the principle of proportionality.

The court ordered the defendant to answer certain narrowed questions regarding her communications with third parties and the police, but dismissed overbroad requests and upheld solicitor-client privilege regarding a non-party lawyer's communications.

The defendant was previously found in civil contempt for dishonesty, concealing assets, and breaching a Mareva injunction.

Having already served a 90-day sentence for a prior contempt finding, the court considered the appropriate sanction for this subsequent contempt.

Emphasizing that civil contempt aims at coercion rather than punishment, and noting the defendant's expressed remorse and ongoing counselling, the court declined to impose further immediate incarceration.

Instead, the court ordered the defendant to continue weekly counselling for two months and pay a $10,000 fine within 60 days, failing which a 90-day term of imprisonment would be imposed.

The plaintiff lawyer brought an action for unpaid legal fees totaling $68,893.92 against his former client.

The parties had an oral retainer agreement for mortgage enforcement work.

The defendant disputed the terms of the retainer and the reasonableness of the fees.

The court found that the parties agreed to an hourly rate of $575.

After assessing the accounts and reducing some charges for unreasonableness, the court ordered the defendant to pay $38,342.42 in outstanding fees, plus prejudgment and post-judgment interest.

In advance of a jury trial on attempted arson and mischief charges, the self-represented accused brought numerous omnibus pretrial motions seeking a wide range of procedural, evidentiary, Charter, disclosure, and institutional remedies.

The court dismissed the majority summarily as irrelevant to the issues for trial, including motions concerning judicial notice of geopolitical matters, disclosure requests untethered to material issues, adjournment, phone-access relief, police record correction requests, and proposed evidence concerning a prior arson conviction.

The court deferred the air of reality assessment on the proposed self defence theory under s. 34 of the Criminal Code until the close of the evidence, while expressing doubt that the alleged conduct could be found objectively reasonable.

The accused's motion to discharge amicus curiae had already been denied in separate reasons, and his application to ask a challenge for cause question based on autism spectrum status was granted in separate reasons.

The plaintiff, a judgment creditor of the defendant Francesco Fiore, brought an action to unwind the transfers of a residential property from Francesco to his son, and subsequently to his daughter.

The plaintiff alleged the transfers were fraudulent conveyances or created a resulting or express trust to shield the property from creditors.

The court found the action was not statute-barred as the 10-year limitation period under the Real Property Limitations Act applied.

While the court did not find sufficient evidence of fraudulent intent or an express trust, it concluded that the transfers lacked consideration and that Francesco retained control and beneficial ownership of the property.

The court declared a resulting trust and ordered the reappointment of a bankruptcy trustee to sell the property and pay creditors.

Following a Reference regarding the partition and sale of a jointly owned property, the court determined the costs payable by the parties.

The respondent Banifatemi, who was completely successful on the Reference, was awarded partial indemnity costs of $8,238.40 payable by the applicant.

The applicant and the respondent Abdollahpour had divided success; the court ordered the respondent Abdollahpour to pay the applicant reduced costs of $2,000.00.

During a criminal trial involving multiple accused, the Crown brought a Khelawon application to admit the out-of-court statements of two deceased witnesses for the truth of their contents under the principled exception to the hearsay rule.

The court found that the unsworn, audio-recorded telephone statement of a former neighbour lacked both procedural and substantive reliability and was inadmissible.

However, the court admitted the video-recorded statement of a deceased complainant, finding sufficient procedural safeguards and substantive reliability corroborated by other witnesses to overcome hearsay dangers.

The applicant brought a motion to compel the respondent to answer undertakings and refusals from oral questioning in a family law proceeding.

The requested disclosure primarily related to the respondent's severance package from a former employer, significant loans received from a friend, consulting invoices, bank and credit card statements, and documents regarding the purchase of a farm property.

The court granted almost all of the applicant's requests, finding the financial information relevant to the applicant's claims for spousal support and potential imputation of income.

The applicant father and respondent mother engaged in a high-conflict parenting dispute over their 9-year-old child.

The court found that the respondent mother had engaged in severe parental alienation, resulting in the child having no contact with the applicant for over two years and exhibiting a resist-refuse dynamic.

Finding that the mother lacked insight and had sabotaged reunification efforts, the court determined it was in the child's best interests to reverse primary residence and award sole decision-making authority to the applicant father.

The respondent was ordered to pay child support based on an imputed income.

The parties brought urgent cross-motions prior to a case conference regarding parenting time and exclusive possession of the matrimonial home.

The father sought primary residence and supervised parenting time for the mother, alleging she engaged in irrational conduct including having him involuntarily admitted for psychiatric observation.

The mother sought primary residence and exclusive possession of the home.

The court dismissed the father's request for supervised parenting time, finding no risk of harm, and ordered a 2-2-3 equal parenting schedule on an interim interim basis.

The court granted the mother exclusive possession of the matrimonial home, noting the father's significantly higher income allowed him to secure alternate accommodation.

At the outset of a personal injury trial arising from a motor vehicle accident, the defendant moved to exclude expert evidence based on a brain SPECT scan used to diagnose a traumatic brain injury (TBI).

The court held that using a SPECT scan to diagnose TBI and distinguish it from anxiety or depression constitutes novel science.

Applying the reliable foundation test from R. v. J.-L.J., the court found the methodology had not been tested, lacked peer review, had no known error rate, and was not generally accepted by the relevant scientific community.

The evidence was ruled inadmissible.

The defendants brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation claim arising from negative online reviews they posted about the plaintiffs' construction businesses.

The court found that while the reviews related to a matter of public interest, there were grounds to believe the defamation claim had substantial merit and the defences of justification and fair comment would fail, partly due to evidence of malice.

The court concluded the harm suffered by the plaintiffs outweighed the public interest in protecting the defendants' expression, which appeared motivated by an attempt to force a deposit refund.

The motion was dismissed.

Following the dismissal of the applicant's motion for an interim injunction, the respondent sought substantial indemnity costs.

The court found that the applicant had filed inaccurate and misleading evidence regarding its history of chargeable conciliations, which justified an enhanced costs award.

However, the court found the respondent's claimed amount of $86,845.95 to be disproportionate to the complexity of the matter.

The court awarded the respondent $45,000 in costs inclusive of disbursements and HST.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action.

The plaintiff claimed entitlement to the proceeds of her deceased husband's investment accounts, alleging an oral agreement that they would remain beneficiaries on each other's accounts, and asserting a constructive trust.

She also sued the investment firm for failing to notify her when the deceased changed his beneficiaries to his children.

The court granted summary judgment, finding the investment firm had no duty to disclose the deceased's personal financial decisions, and the plaintiff failed to establish a constructive trust or agreement, noting she had already received a substantial portion of the estate.

The respondent brought a motion to remove the court-appointed liquidator of a real estate company, alleging a conflict of interest and collaboration with the applicant Estate.

The liquidator sought approval of its activities, fees, and an extension of a listing agreement for the sale of properties.

The court dismissed the motion to remove the liquidator, finding no evidence of bad faith or blatant intentional action contrary to the interests of the parties.

The court approved the liquidator's fees and the extension of the listing agreement, noting the fees were fair and reasonable.

During an ongoing civil trial, the court held a voir dire to determine the admissibility of an affidavit sworn by a non-party in a separate, sealed family proceeding.

The affidavit had come into the possession of one of the defendants.

The objecting parties argued the affidavit was protected by solicitor-client privilege and was obtained unlawfully.

The court held that the sworn affidavit filed in court was not a privileged communication and that the sealing order did not reinstate privilege.

The court ruled the affidavit admissible for impeachment purposes as a prior inconsistent statement.

The appellant appealed a decision of the Consent and Capacity Board upholding her treating physician's finding that she was incapable of consenting to treatment with antipsychotic medication and benzodiazepines.

The appellant argued the Board made palpable and overriding errors in its assessment of her capacity and the causes of her symptoms.

The Superior Court of Justice dismissed the appeal, finding that the Board's conclusions were firmly anchored in the evidentiary record and that the appellant failed to demonstrate any palpable and overriding error.

The applicant father brought an urgent motion to prohibit the respondent mother from relocating the child's residence from Ottawa to Arnprior, or alternatively for primary residence.

The mother brought a cross-motion to prohibit the father from bringing further urgent motions.

The court applied the Gordon v. Goertz and Plumley v. Plumley factors for interim mobility.

The court found the mother was the primary caregiver, the move was for affordable housing, and the father's parenting time would continue uninterrupted.

The court permitted the move on an interim basis and dismissed both the father's and mother's motions.