SCJ 2021

Following a successful motion for summary judgment in a mortgage enforcement action, the plaintiff sought partial indemnity costs of $22,126.11.

The defendants sought substantial indemnity costs of $101,830.30, arguing the plaintiff prolonged the action by taking an incorrect legal position on the applicable interest rate.

The court found the plaintiff was prima facie entitled to costs but reduced the award to $13,060 because the plaintiff's insistence on an unsustainable interest rate prolonged the proceedings and hindered settlement.

On the eve of trial, the plaintiffs brought a motion for further documentary production and discovery after the defendants provided late answers to questions previously refused during examinations for discovery.

The defendants argued that issue estoppel applied due to previous unsuccessful refusals motions.

The court rejected the issue estoppel argument, finding that the defendants altered the litigation landscape by voluntarily providing the late answers.

The court ordered limited, file-specific documentary production relevant to the new answers, but denied broader discovery requests to avoid delaying the trial.

The father brought a motion to retroactively vary child support, release trust funds, and order the partition and sale of the matrimonial home.

The mother brought a cross-motion to compel the father to retain an independent financial professional to determine his true income, citing unexplained bank deposits and his history of earning a high income despite alcoholism.

The court dismissed the father's motion for partition and sale, finding the mother established a competing right under the Family Law Act to preserve the home for herself and the child.

The court granted the mother's motion to appoint a financial expert under Rule 20.1 of the Family Law Rules and adjourned the father's motion to vary support pending the expert's report.

The applicant father and respondent mother separated in 2016 and have two children.

The father sought joint decision-making responsibility, equal parenting time, and the termination of spousal support.

The mother sought sole decision-making responsibility, a continuation of the status quo parenting schedule (primary residence with the mother), and ongoing child and spousal support based on imputed income for the father.

The court found that despite some conflict, the parties were capable of communicating adequately and ordered joint decision-making responsibility.

The court also ordered an equal, week-about parenting time schedule, noting the children's expressed preferences for more time with their father.

The court imputed income to both parties due to their self-employment and under-employment, setting the father's income at $75,000 and the mother's at $30,000 for 2022.

Child support was ordered based on a shared parenting arrangement under section 9 of the Child Support Guidelines, and spousal support was reduced to a token amount of $1 per month.

The accused, charged with possession of controlled substances for the purpose of trafficking, brought a Garofoli application to exclude evidence obtained during the execution of a search warrant at her residence.

She argued her s. 8 Charter rights were violated because the Information to Obtain (ITO) relied on confidential informant information that was not credible, compelling, or corroborated.

Applying the Debot factors, the court found that while corroboration was limited, the highly compelling and credible nature of the information from two confidential sources provided sufficient grounds for the authorizing justice to issue the warrant.

The application was dismissed.

The defendants appealed an Associate Judge's order that required the net proceeds from the sale of two properties to be held in trust or paid into court upon the discharge of certificates of pending litigation (CPLs).

The defendants argued the plaintiff failed to make full and fair disclosure on the initial ex parte motion for the CPLs and that the Associate Judge failed to properly apply the test to vacate a CPL.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error or error in law in the Associate Judge's assessment of material disclosure, balancing of equities, or exercise of discretion to require security.

Following a successful summary judgment motion dismissing the plaintiffs' action, the defendant TD sought partial indemnity costs of $231,077.50.

The plaintiffs argued for a reduction based on the principal plaintiff's impecuniosity, the novelty of the case, and excessive time claimed.

The court found that while the plaintiff's financial circumstances warranted some moderation, the novelty of the case did not justify a reduction as basic negligence principles applied.

The court also found some of TD's claimed time excessive, but noted the plaintiffs' conduct caused significant delay.

The court awarded TD costs of $130,000 inclusive of disbursements and HST.

The defendant brought a motion to compel the plaintiff to attend defence medical examinations in Toronto.

The plaintiff, who resides near Thunder Bay, objected on the basis that his injuries from a motor vehicle accident rendered him medically unable to travel.

After reviewing expert evidence, including a jointly retained neurosurgeon's report and evidence of the plaintiff's extensive recent travel, the court found the plaintiff was medically able to travel.

The plaintiff was ordered to attend the examinations in Toronto, without prejudice to his right to bring a subsequent motion regarding COVID-19 concerns.

Costs were awarded to the defendant.

The respondent father brought a motion for a temporary nesting order and a section 30 assessment regarding the parties' 9-year-old child, who has Autism Spectrum Disorder.

The applicant mother opposed the nesting order and sought exclusive possession of the matrimonial home.

The court granted the father's motion, finding that a nesting arrangement would minimize disruption to the child pending a full assessment.

The court also ordered a section 30 assessment and dismissed the father's request for a specific contact order for the paternal grandparents under the new provisions of the Divorce Act.

The applicant brought an application challenging the validity of the 2018 Toronto municipal election.

The respondent municipalities and provincial government brought motions to strike the application.

Over the course of nearly three years, the applicant failed to file any evidence in support of her application and did not appear at the peremptory hearing of the motions.

The court granted the respondents' unopposed motions and dismissed the application for failure to provide proof.

The Proposal Trustee brought a motion under s. 65.13 of the Bankruptcy and Insolvency Act to approve the sale of two licensed retirement homes owned by the insolvent debtors.

The second mortgagee opposed the sale, arguing the sales process was flawed, the price was below market value, and it was denied the opportunity to properly value the properties.

The court found the sales process was reasonable given the debtors' insolvency and the imminent expiration of their operating licenses.

The court also found the sale price was fair based on independent appraisals and granted the motion to approve the sale, along with a sealing order over the appraisal exhibits.

The applicants, a group of real estate development entities facing a liquidity crisis, applied for an initial order under the Companies' Creditors Arrangement Act (CCAA).

The court found the applicants insolvent and granted the initial order, including a stay of proceedings extended to related partnership entities.

The court also approved debtor-in-possession (DIP) financing from Halmont Properties Corporation, authorized payments to critical suppliers, appointed Ernst & Young Inc. as Monitor, and appointed Kesmark as Chief Restructuring Officer to stabilize operations and facilitate restructuring.

The plaintiff sued the defendant foundation after it rescinded a scholarship award following her participation in a national selection event.

The defendant moved for summary judgment, arguing that a liability waiver signed by the plaintiff barred the claim.

The court applied the Tercon test for enforcing exclusion clauses and found that the broadly worded waiver applied to the circumstances, was not unconscionable, and did not violate public policy.

The court granted summary judgment and dismissed the plaintiff's claim.

The plaintiff brought an undefended trial claiming his sister-in-law agreed to transfer life insurance proceeds to him following his wife's death.

The court raised concerns about the lack of consideration for the alleged agreement, as the plaintiff admitted the defendant received nothing in exchange.

The court deferred its decision to allow the plaintiff's counsel to provide written submissions on the issue of consideration.

The plaintiff brought a motion under Rule 49 to enforce a settlement agreement after the defendant failed to make installment payments on time.

The defendant admitted the breach but requested a 30-day extension to raise funds to complete the settlement.

The court declined to delay enforcement, finding no compelling reason to depart from the agreement's terms.

The court granted judgment for the outstanding balance of $400,000, conditional upon the plaintiff transferring its investment units to the defendant upon payment.

The Globe and Mail brought a motion to set aside a sealing order granted by Conway J. that sealed a supplementary affidavit and excerpts of surreptitiously recorded transcripts in a corporate winding-up application.

The responding party opposed the motion, arguing that unsealing the materials would harm his privacy and dignity interests.

Applying the Supreme Court of Canada's decision in Sherman Estate, the court found that the responding party failed to establish that unsealing the court file posed a serious risk to an important public interest that would justify rebutting the strong presumption in favour of open courts.

The motion was granted and the sealing order was set aside.

In an uncontested family property trial, the court considered whether equalization under the Family Law Act should be displaced by an unequal division and whether the applicant was entitled to post-separation adjustments.

The evidence showed that after separation the respondent procured a substantial second mortgage on the matrimonial home, converted the proceeds to personal use, failed to account for the funds, and left the applicant bearing family and household obligations while defending creditor litigation arising from his business affairs.

Applying the high unconscionability threshold under s. 5(6), the court held that requiring the applicant to pay the ordinary equalization amount would shock the conscience of the court.

The court therefore relieved the applicant of the equalization payment and awarded net post-separation adjustments of $285,251.23, with prejudgment interest from the date of the application.

The plaintiff brought a motion for summary judgment against the corporate defendant and its director for repayment of two loans and associated fees.

The court found that the fees charged on the loans amounted to effective interest rates of 150% and 180%, which exceeded the criminal rate of interest under the Criminal Code.

The court set aside the fees under the Unconscionable Transactions Relief Act but granted summary judgment for the principal amount of the loans.

The court also found the director personally liable as a guarantor, as she signed the promissory note without indicating she was signing solely in a corporate capacity.

The plaintiff supplier brought an action against the corporate defendant and its principals for unpaid materials supplied to a construction project.

Following default judgment against the corporation, an uncontested trial was held to determine the personal liability of the individual defendants.

The court found that the corporation received funds for the project but failed to pay the plaintiff, constituting a breach of trust under the Construction Act.

The court held the individual defendants jointly and severally liable for the breach of trust, finding they had effective control of the corporation and acquiesced in the breach.

The plaintiff sought costs following a successful motion regarding 166 undertakings and refusals from the defendants' discoveries.

The plaintiff claimed $228,395.58 on a substantial indemnity basis, citing the defendants' conduct, including delayed disclosure and excessive refusals.

The court declined to award substantial indemnity costs, finding the conduct did not rise to the level of scandalous or reprehensible behavior.

Applying the principle of what is fair and reasonable for the unsuccessful party to pay, the court fixed partial indemnity costs at $100,000, payable jointly by the TTC Defendants.