SCJ 2021

The plaintiff brought a motion to certify a class action against her investment advisors and related corporations, alleging breach of fiduciary duty, knowing assistance, knowing receipt, breach of contract, and oppression in relation to the sale of promissory notes.

The court dismissed the certification motion, finding that the claims did not satisfy the cause of action, common issues, and preferable procedure criteria under the Class Proceedings Act, 1992.

The court held that the existence of a fiduciary duty and any breach thereof would require individualized assessments, and that the secondary claims for knowing assistance and knowing receipt were similarly flawed and lacked a basis in fact.

The applicant, charged with first-degree murder alongside a co-accused, applied for severance under s. 591(3)(b) of the Criminal Code.

He argued that a joint trial would violate his s. 11(b) Charter right to a trial within a reasonable time, as the co-accused's counsel was unavailable until six months past the Jordan ceiling.

The court dismissed the application, finding that the strong public interest in joint trials for co-accused alleged to have acted in concert outweighed the anticipated delay, which was partially justified by the complexity of a multi-accused trial and the impact of the COVID-19 pandemic.

The litigation guardian for the plaintiff, who sustained catastrophic injuries in a motor vehicle accident and lacked capacity, sought court approval for the settlement of his tort and accident benefits claims.

The court found the settlement amounts of $300,000 for the tort claim and $400,000 for the accident benefits claim to be fair and reasonable.

However, the court found the contingency fee agreement with the plaintiff's lawyers to be neither fair nor reasonable, as it was signed when the lawyers doubted the plaintiff's capacity.

The court reduced the legal fees to 17% for the accident benefits claim and 25% for the tort claim.

The court considered whether to make temporary orders based on recommendations from a section 30 assessment in a family law dispute.

The court ordered the father to complete collaborative problem-solving training, limited telephone communication between the child and the non-residential parent, and established a right of first refusal for overnight care.

The court also placed conditions on the presence of the father's partner in his home, directed the parents to seek a psychoeducational assessment and counselling for the child, and requested the Office of the Children's Lawyer to consider appointing counsel for the child.

Following a trial where the defendants successfully defended against the plaintiff's claim regarding a restrictive covenant, the defendants sought costs of $163,328.87.

The plaintiff argued for a reduced partial indemnity award of $53,191.82, citing an unproven fraud allegation by the defendants.

The court declined to award substantial indemnity costs but noted the importance of the indemnity principle given the employment-like relationship.

Costs were fixed at $110,000 inclusive of fees, disbursements, and HST.

The tenant and landlord brought cross-applications regarding a commercial lease dispute arising during the COVID-19 pandemic.

The parties had agreed to a temporary rent reduction during the lockdown, but disputed its duration and whether the landlord was obligated to apply for the Canada Emergency Commercial Rent Assistance (CECRA) program.

The court found the rent relief agreement validly terminated in August 2020 and that the landlord made no binding promise to apply for CECRA.

However, applying the doctrine of spent breach, the court held the tenant could still exercise its lease renewal option provided arrears were paid.

Claims regarding maintenance breaches were directed to trial.

The parties separated after a 30-year relationship.

The applicant brought a claim for equalization of net family property, post-separation adjustments, and other financial issues.

The court determined the equalization payment and post-separation adjustments, ordering the applicant to pay the respondent $450,549.69 via a pension transfer.

The court also ordered the applicant to pay $6,300 in spousal support arrears and a $500 lump sum for retroactive spousal support, while dismissing the claim to apportion their adult son's student debt.

The parties were scheduled to proceed with motions, but both filed affidavits and exhibits that grossly exceeded the page limitations set out in a prior Case Conference Order and the court's Notices to the Profession.

Neither party sought leave for the voluminous filings.

The court vacated the motions, holding counsel responsible for the non-compliance, and required the parties to seek leave via a Form 14B motion before the motions could be rescheduled.

The court also directed counsel to provide a copy of the endorsement to their clients and noted the court's ability to order lawyers not to charge fees for such work.

Following the vacating of the parties' motions for violating page limitations, the applicant requested an urgent teleconference regarding his spousal support motion.

The court expressed frustration with the parties' litigious conduct and the broader culture of unreasonableness and incivility in family court.

The court scheduled the applicant's spousal support motion and directed the respondent to file a 14B motion for leave to proceed with her motion.

The defendant moved to strike the plaintiff's claim for damages for wrongful distraint under Rule 21.01(1)(b).

The plaintiff sought damages for relational economic loss, arguing it had a possessory or proprietary interest in restaurant equipment distrained by the defendant landlord from a previous tenant.

The court found that because the defendant had withheld consent to assign the lease to the plaintiff, the plaintiff could not establish a possessory or proprietary interest in the chattels.

The motion was allowed and the claim was dismissed without leave to amend.

The plaintiff brought a motion to find the defendant in civil contempt for violating a non-dissipation and disclosure order.

The court found beyond a reasonable doubt that the defendant intentionally breached the clear and unequivocal order by failing to disclose his ownership of certain life insurance policies, dissipating the proceeds of those policies by directing a third party to disburse funds, and failing to disclose the whereabouts of a Ferrari.

The court dismissed the defendant's evidentiary objections, admitting a third-party bank statement and an affidavit the defendant had sworn in a foreign proceeding.

The defendant was found in contempt.

The plaintiff employer sought an interlocutory injunction to restrain a former employee from competing, soliciting customers, or using confidential information.

The court applied the strong prima facie case standard because the injunction would restrict the employee's livelihood.

The court found the restrictive covenant had expired years prior, the employee was not a fiduciary, and the customer list was not proprietary confidential information.

The motion for an injunction was dismissed, but a sealing and protective order was granted on consent.

The applicant subcontractor sought an order that the respondent law firm pay $39,812.68, which the firm had received from its client (the general contractor) for legal fees.

The funds originated from a settlement in a construction lien action.

The court found that the funds were impressed with a statutory trust under section 8 of the Construction Lien Act.

The court held that the law firm was in 'knowing receipt' of trust funds when it transferred the money from its trust account to its general account to pay its legal fees, as it had knowledge of the applicant's outstanding trust claim against the contractor.

The law firm was ordered to pay the funds to the applicant as a constructive trustee.

The applicant landlord sought an urgent hearing prior to the expiry of a conditional period in a new lease to determine if the respondent tenant had a consent right over the proposed change of use to a call centre.

The respondent sought an adjournment because its lead counsel was unavailable on the scheduled date and opposed a weekend hearing due to the impact on junior staff and preparation time.

The court granted the adjournment, noting the lack of objective urgency, the landlord's voluntary assumption of the deadline, and the importance of health and wellness for legal practitioners during the pandemic.

The plaintiff alleged injuries from a slip and fall on a sidewalk and commenced an action against the City of Toronto and the registered owner of the adjacent property, Maria Naccarato.

After the limitation period expired, the plaintiff learned Maria Naccarato had died years prior and her son, Joe Naccarato, was the executor and occupier of the property.

The plaintiff brought a motion to amend the statement of claim to substitute Joe Naccarato as a defendant.

The court granted the motion, finding the pleading constituted a misnomer, the intended defendant had timely notice, and there was no non-compensable prejudice.

The applicant mother brought a motion for temporary sole custody of the parties' child.

The respondent father had unilaterally relocated with the child and repeatedly denied the mother access, failing to comply with a previous court order for access.

The father raised uncorroborated allegations of substance abuse and physical abuse against the mother.

The court found the father was actively attempting to sever the child's relationship with the mother.

To preserve the relationship and in the child's best interests, the court granted temporary sole custody to the mother, with scheduled access for the father.

The plaintiff, an unsophisticated lender, brought a motion for summary judgment to recover unpaid loans made to the defendants.

The defendants argued the acknowledgment of debt was unconscionable due to a 60 percent interest rate and lack of legal representation, and denied fraudulent misrepresentation.

The court granted summary judgment, finding no unconscionability as the defendant had proposed high interest rates initially and refused legal counsel.

The court also found the defendant engaged in fraudulent misrepresentation regarding the company's finances to induce the initial loans, awarding the plaintiff the principal amounts plus 60 percent interest.

The plaintiff sued for damages, claiming an equitable life estate or option to purchase a residential property based on an unwritten agreement.

The plaintiff had originally owned the property but lost it to foreclosure, after which he remained as a tenant under successive owners.

The court found the plaintiff's claims to be entirely fabricated and contradicted by documentary evidence, including a lease in which he explicitly released all claims to the property.

The action was dismissed.

The applicant brought a motion to transfer the respondent's motion to change spousal support from Hamilton to Milton, where a related proceeding between the parties was already ongoing.

The respondent had previously commenced and withdrawn a similar motion in Milton, incurring significant unpaid costs, before starting fresh in Hamilton.

The court granted the transfer, finding it substantially more convenient and necessary to avoid a multiplicity of proceedings, inconsistent findings, and the waste of judicial resources, particularly given the respondent's history of litigation misconduct.

The applicant sought interim child support for her son from a previous relationship, interim spousal support, and orders regarding access exchanges.

The court found a prima facie case that the respondent stood in the place of a parent to the stepson and ordered him to pay full Guidelines child support for all three children.

The court also found the applicant entitled to interim spousal support based on need and compensatory grounds.

Due to conflict involving the respondent's mother, access exchanges were ordered to occur at a neutral location, with adjusted times for winter driving conditions.