SCJ 2021

A paralegal who represented individual consumers in Small Claims Court actions against the defendants brought a motion seeking compensation from class counsel's fees following the settlement of a related class proceeding.

The paralegal argued that his independent efforts, including media interviews, pressured the defendants to settle and benefited the class, justifying payment on the basis of quantum meruit or unjust enrichment.

The court dismissed the motion, finding no contractual agreement between the paralegal and class counsel.

Furthermore, there was no evidence that class counsel requested, encouraged, or acquiesced to his efforts, nor any proof that his actions influenced the settlement.

The applicant, Ontario, sought a declaration that its insurer, St. Paul, owed a duty to defend it in an underlying class action regarding bail system delays.

Ontario argued St. Paul was estopped from denying coverage due to its delay in communicating its position.

The court found no estoppel, as Ontario controlled its own defence and suffered no prejudice.

On the coverage issue, the court held the true nature of the underlying claims involved harms that were expected from Ontario's policy choices, which fell outside the policy's definition of an 'occurrence' or 'accident'.

The application was dismissed.

The payor brought a motion to change to review spousal support after the expiration of a five-year period set in a previous consent order.

The court determined the review was a de novo hearing requiring no material change in circumstances.

Finding the recipient had a strong compensatory and non-compensatory claim arising from a traditional marriage, the court utilized the payor's post-separation income increases, setting his income at $724,797.

Spousal support was ordered for a total duration of 17 years with a step-down period, terminating in 2030.

The defendants brought a motion to transfer a related action from Toronto to Newmarket and to consolidate four separate actions commenced by the self-represented plaintiff.

The actions all arose from the plaintiff's termination from his employment and involved claims of wrongful dismissal, conspiracy, and defamation.

The plaintiff consented to the transfer and partial consolidation but opposed consolidating two of the actions because one defendant had been noted in default.

The court granted the motion in its entirety, finding that the actions shared common questions of law and fact, and that consolidation would be the most cost-effective and efficient way to proceed while avoiding conflicting findings of fact.

The plaintiff commenced an action against his former landlord and others to contest an eviction order, relying on Organized Pseudolegal Commercial Arguments (OPCA) and claiming Indigenous rights despite having no such heritage.

The court reviewed the statement of claim under Rule 2.1.01 of the Rules of Civil Procedure and dismissed the action as frivolous, vexatious, and an abuse of process without requiring notice to the plaintiff, noting the claims were legally baseless and designed to frustrate the justice system.

The applicant father brought a motion to restore equal shared parenting time, while the respondent mother sought primary residence and sole decision-making authority following unverified allegations of inappropriate touching by the father's older son.

The court found discrepancies in the mother's evidence regarding the separation date and the allegations.

Given the children's school registration and the distance between the parents' residences, the court ordered that the children reside primarily with the mother during the week and with the father on weekends, pending an investigation by the Office of the Children's Lawyer.

Following a successful motion for summary judgment, the moving parties sought costs on a full indemnity basis.

The court found that the responding parties engaged in egregious litigation conduct, including providing false evidence, hiding evidence, and commencing a spurious counterclaim that amounted to an abuse of process.

The court held that an award of punitive damages does not preclude an award of full indemnity costs where the conduct warrants it.

Costs were fixed at $230,000 on a full indemnity scale.

The plaintiff brought a medical malpractice action against her rheumatologist, alleging he breached the standard of care by misdiagnosing her with gout, failing to perform a joint aspiration, and prescribing Allopurinol without informed consent, which led to her developing Stevens-Johnson Syndrome.

The court dismissed the action, finding that the defendant met the standard of care of a reasonable community rheumatologist in diagnosing gout clinically and prescribing Allopurinol.

The court also found that informed consent was obtained and that the plaintiff failed to prove causation, as expert evidence established she had a genetic predisposition making the adverse reaction inevitable regardless of the starting dose.

In a family trial concerning a young child, the court determined decision-making authority, school-year parenting time, child support, and related financial issues.

The court found the parents lacked the practical ability to exercise joint decision-making without ongoing conflict and granted the mother final decision-making authority, subject to prior consultation with the father.

The court replaced an equal 2-2-3 parenting schedule during the academic term with a schedule reducing transitions and maximizing the child's stability, while preserving substantial parenting time and shared summer care.

Applying s. 9 of the Child Support Guidelines and the framework in Contino, the court rejected the father's request for a downward adjustment from table support despite anticipated shared care, ordered monthly child support and s. 7 contribution, fixed arrears at $11,000, and dismissed the mother's claims for spousal support and contribution regarding Canada Child Benefit overpayment.

Following two family law motions where the respondent father was largely successful, the court determined the issue of costs.

The father sought costs of $7,984.58 on a full indemnity basis or $5,269.82 on a partial indemnity basis.

The applicant mother, who became self-represented, argued against the quantum, citing her own legal costs and an inability to pay.

The court found no justification for full indemnity costs, noting the mother's lack of bad conduct and that the father's offer to settle was not beaten.

Rejecting the mother's claim of inability to pay, the court ordered her to pay partial indemnity costs of $5,269.82 within 60 days.

The appellant appealed his conviction and sentence for assault causing bodily harm following an incident where he was shot at, chased his attackers in a vehicle, and engaged in a physical altercation with one of them.

The trial judge found the appellant acted in self-defence initially but used excessive force once the attacker was subdued, and concluded the bodily harm occurred during this latter phase.

On appeal, the court found the trial judge's conclusion regarding when the bodily harm occurred was unreasonable, as it could have happened during the car crash or the initial lawful struggle.

The court set aside the conviction for assault causing bodily harm, substituted a finding of guilt for common assault, and imposed an absolute discharge.

The applicant sought costs following a successful motion to compel the respondent to cooperate in filing corporate tax returns pursuant to a 2019 order, and the dismissal of the respondent's cross-motions.

The court found the applicant's motion was necessary due to the respondent's delays and failure to clarify her position.

Costs were awarded to the applicant on a partial indemnity basis, fixed at $8,475 inclusive of HST.

The appellant was convicted of three driving offences after fleeing from police.

The sole issue at trial was identity, which relied heavily on the recognition evidence of a police officer who had prior interactions with the appellant.

On appeal, the appellant argued the trial judge misapprehended evidence regarding the extent of the officer's familiarity with the appellant's deceased brother.

The Superior Court dismissed the appeal, finding that while a misapprehension occurred, it was not material and did not play an essential part in the trial judge's reasoning process, as the officer's familiarity was well-established through other significant interactions.

The defendant applied under s. 24(2) of the Charter to exclude evidence seized from his car and home pursuant to search warrants.

The defendant argued the Information to Obtain (ITO) contained misrepresentations and omitted material facts, specifically a failed undercover drug buy.

The court found the affiant's misrepresentation of surveillance events was egregious and not in good faith.

After excising the inaccurate information and amplifying the ITO with the omitted facts, the court concluded there were insufficient grounds to issue the warrants, resulting in a s. 8 Charter breach.

Applying the Grant framework, the court excluded the evidence due to the seriousness of the police conduct and the significant impact on the defendant's privacy interests.

The applicant brought an application for a stay of proceedings, arguing his s. 11(b) Charter right to be tried within a reasonable time was infringed.

The total delay from charge to the anticipated end of trial was 47 months.

After deducting defence-caused delay and delay attributable to the COVID-19 pandemic, which the court recognized as a discrete exceptional circumstance, the net delay was calculated at 26 months.

As this fell below the 30-month presumptive ceiling for superior court cases, and the defence failed to show a sustained effort to expedite the proceedings, the application was dismissed.

The plaintiffs brought a motion to compel the defendant Township of Oro-Medonte to answer questions refused at an examination for discovery, produce Standard Operating Procedures, and re-attend discovery.

The defendant argued leave was required because the matter had been set down for trial.

The court found leave was not required as the motion record was served before the trial record, but would have granted leave regardless.

The court ordered the defendant to answer the refused questions, produce the requested documents, and have its representative re-attend discovery at its own expense, finding the requested information relevant to whether the defendant acted reasonably in its response to the downed hydro wires.

The applicant mother brought a motion to change a 2012 deemed custody order, seeking primary residence of her two adolescent children and child support.

The respondent father opposed the motion, seeking to retain custody, reduce the mother's parenting time, and obtain child support.

The court found a material change in circumstances but dismissed the mother's request for primary residence, citing the children's strong views and preferences to remain with their father and the mother's inability to manage the son's behavioural issues.

The court reduced the mother's parenting time in accordance with the children's wishes and ordered her to pay $280 per month in child support based on an income of $18,500.

The applicant insurer appealed an arbitrator's decision in a loss transfer dispute regarding priority for statutory accident benefits.

The claimant was injured while driving a rental vehicle provided by the respondent insurer as a temporary substitute vehicle for more than 30 days.

The court held that the 30-day limit for rental vehicles under section 2.2.4 of the Ontario Automobile Policy (O.A.P.1) does not apply to temporary substitute vehicles under section 2.2.2.

The court also upheld the arbitrator's finding that the claimant's submission of an OCF-1 form to the respondent constituted a valid choice of insurer under section 268(4) of the Insurance Act.

The appeal was dismissed.

During a jury trial for aggravated assault and discharging a firearm, the defence applied for a mistrial after the Crown disclosed two screenshots mid-trial.

The defence had already aggressively cross-examined key Crown witnesses, suggesting they were lying about the existence of these screenshots because they had not been disclosed.

The court found that the late disclosure significantly prejudiced the accused's right to make full answer and defence, as the defence's tactical approach was based on the non-disclosure.

Concluding that no lesser remedy such as an adjournment or jury instruction would suffice, the court granted the mistrial.

The Children's Aid Society brought a child protection application regarding two Indigenous children with severe asthma, whose health was compromised by the mother's substance abuse and exposure to cigarette smoke.

The Society initially sought a supervision order but later requested to withdraw the application in favour of a customary care agreement placing the children with the maternal grandfather.

The court found the agreement's provision for unsupervised access by the mother did not meet the children's best interests.

The court ordered the children placed with the customary care providers under an interim supervision order, with supervised access for the mother subject to conditions regarding substance use and smoke exposure.