SCJ 2021

The respondent, having successfully defended an appeal of a Master's order compelling production of documents, sought costs of the appeal.

The respondent claimed up to $36,957.78 on a full indemnity basis, citing the appellants' delay tactics and a last-minute abandoned motion to adduce fresh evidence.

The appellants argued the claimed amounts were disproportionate.

The court agreed the appellants' conduct was problematic but elected to award costs on a partial indemnity scale, fixing the amount at $25,000.

This decision addresses procedural issues in a complex civil action involving claims for delayed delivery of residential lots and a right of first refusal.

The court considered whether a previously agreed-upon bifurcated trial could proceed given new limitations defences proposed by the defendant, and whether the action should remain under a "One Judge Model" case management pilot program.

The court ruled that a single trial was necessary to avoid the risk of inconsistent judgments due to overlapping evidence and credibility issues related to the limitations defences.

Furthermore, the action was removed from the pilot program because the parties consistently engaged in formal, contested interlocutory proceedings, contrary to the program's emphasis on informal dispute resolution.

The respondent initially brought a motion to change a Paternity Agreement to terminate or reduce child support for the parties' adult child.

The applicant responded, seeking retroactive child support adjustments and contributions to section 7 expenses for post-secondary education.

The court applied the D.B.S. and Michel v. Graydon framework for retroactive support, finding the applicant's delay in seeking increased support understandable due to language barriers and the payor's blameworthy conduct in failing to disclose income changes.

Retroactive child support of $10,182.50 (less a $1,100 credit) was ordered from July 1, 2011, to December 31, 2017.

However, the applicant's claim for section 7 expenses for the 2019-2020 academic year was dismissed, as the child's OSAP loan portion and summer earnings were deemed sufficient to cover expenses.

A formula for future section 7 contributions was established, requiring the child to contribute $1,500 from summer income and 75% of the OSAP loan portion before parental contributions.

The applicant brought a motion for financial disclosure, temporary spousal support, and costs in a family law proceeding.

The court dismissed the applicant's requests for formal pension and asset valuations, finding the respondent's existing disclosure sufficient, but ordered the respondent to provide an Equifax report.

The court awarded temporary spousal support of $387 per month, adopting the mid-range amount based on the parties' 2019 incomes.

No costs were awarded due to divided success and the respondent's unreasonable conduct regarding disclosure.

The plaintiffs brought a motion to settle the Notices of Certification and the Litigation Plan in a class action concerning universal life insurance policies.

The court excluded certain sentences from the Notices of Certification, finding them unnecessary and potentially confusing for class members deciding whether to opt out.

The court also heavily edited the plaintiffs' proposed Litigation Plan, removing extraneous, premature, and confrontational information, noting that a post-certification litigation plan should focus on implementation rather than litigation strategy.

The applicant brought a motion for additional financial disclosure from the respondent in a family law proceeding.

The applicant alleged the respondent was underemployed or hiding income and sought 19 outstanding disclosure items, including unredacted account statements and tax documents.

The court ordered the respondent to provide complete, unredacted copies for 16 of the 19 items, finding that the respondent's privacy rights did not justify redacting relevant financial information.

The request for the remaining three items was dismissed without prejudice to the applicant renewing the request with additional evidence.

The plaintiff, who was rendered paraplegic following spinal surgery, brought a motion to amend his statement of claim to add his former family doctor and chiropractor as defendants, and to add new allegations against the defendant surgeon.

The surgeon brought a cross-motion to dismiss the action for delay.

The court dismissed the cross-motion, finding the delay was not contumelious and caused no actual prejudice.

The court denied the plaintiff's request to add new allegations against the surgeon, ruling they were statute-barred new causes of action.

However, the court allowed the addition of the family doctor and chiropractor, finding the claims against them were not reasonably discoverable until the plaintiff's counsel obtained and reviewed the family doctor's medical chart.

The accused, charged with attempted murder and firearms offences, applied for a bail review following a detention order.

He argued a material change in circumstances due to a COVID-19 outbreak at the Toronto South Detention Centre.

The court found the outbreak constituted a material change, warranting a hearing de novo.

Although the Crown's case was strong and the offences serious, the court concluded the accused met his onus on the secondary and tertiary grounds.

The accused was released on strict house arrest with GPS monitoring and three sureties.

The applicant, facing extradition to the United States on charges of money laundering, sought a review of a decision denying him judicial interim release.

He proposed a new release plan involving house arrest, GPS monitoring, and his brother and sister-in-law as sureties.

The court dismissed the application, finding the applicant failed to meet his onus on both the primary and secondary grounds.

The court concluded he posed a significant flight risk given his lack of ties to Canada, history of using false documents, and the potential lengthy sentence in the US.

The court also found detention necessary on the secondary ground due to the risk of him continuing to operate a money laundering business while on bail.

Following a successful summary judgment motion against the corporate defendant for breach of contract under the simplified procedure, the plaintiff sought costs.

The corporate defendant did not file responding cost submissions.

The court awarded the plaintiff its requested costs of $7,800 on a partial indemnity basis, finding the amount reasonable and proportionate given the maximum simplified procedure damages recovered and the corporate defendant's failure to actively defend the claim.

The defendants brought a motion for an interlocutory injunction and declaratory relief to prevent the plaintiff from interfering with land development projects governed by Joint Venture Agreements.

The plaintiff, whose principal had been terminated as project manager, had been contacting third parties and refusing to execute necessary documents, jeopardizing the final plan approval of the Johnson Point project.

The court found that the defendants had final decision-making authority under the agreements and met the test for a prohibitory interlocutory injunction.

The court granted the requested relief, limiting it to the Johnson Point project, and ordered the plaintiff not to cancel a related environmental permit.

The moving defendant sought to set aside four default judgments obtained against him in 2011.

He argued that he was unaware of the defaults because his former lawyer failed to defend him or notify him of the proceedings, and improperly withdrew from the record.

The court applied the Mountain View factors and found that the defendant moved promptly upon discovering the judgments, had a plausible explanation for the default due to his counsel's inadvertence, and presented an arguable defence on the merits.

The court concluded that the interests of justice favoured setting aside the default judgments and notings of default.

The accused, charged with sexual and simple assault against his ex-wife, brought a Stage 1 application under s. 278.93(4) of the Criminal Code to admit the complainant's medical records and evidence of prior consensual sexual activity.

The court found that the complainant's signed police release form did not constitute a valid waiver of her reasonable expectation of privacy, meaning the medical records remained subject to the s. 278 regime.

The court also held that evidence of post-separation consensual sexual activity was capable of being admissible to show ongoing association, rather than relying on twin-myth reasoning.

Both the medical records and sexual activity evidence were permitted to proceed to a Stage 2 hearing.

The applicant father sought orders requiring the children to attend counselling, restricting travel discussions, and varying child support in a shared parenting arrangement.

The mother opposed the counselling and travel orders, and disputed the father's request to impute her income at $67,000 following a period of disability.

The court dismissed the father's requests for counselling and travel restrictions, finding the children were well-adjusted and the primary issue was high parental conflict.

The court imputed part-time and full-time minimum wage income to the mother for the periods she was not receiving disability benefits, and ordered child support to be calculated using the set-off approach under section 9 of the Child Support Guidelines.

The plaintiffs, a mother and son, commenced an action seeking $20,000,000 in damages against the defendant, the son's former romantic partner.

The plaintiffs alleged the defendant negligently scheduled family law motions on the same day as the mother's breast cancer surgery, preventing the son from attending the hospital to support her, which caused her to abandon the surgery.

The defendant moved to dismiss the action as frivolous and vexatious under Rule 2.1.01(1).

The court applied the Anns test and concluded that the defendant owed no duty of care to the plaintiffs in these circumstances.

The action was dismissed for failing to disclose a reasonable cause of action.

The Attorney General of Canada, on behalf of the United States, applied for the committal of the respondent for extradition to face charges of making child pornography.

The charges were based on photographs discovered on the respondent's electronic devices, which were seized without a warrant by Canadian police while the respondent was staying as a guest in a friend's home.

The court found that the warrantless seizure of the devices violated the respondent's section 8 Charter rights, as he maintained a reasonable expectation of privacy in his personal electronic devices despite being a temporary guest.

Applying the Grant framework, the court excluded the evidence under section 24(2) of the Charter due to the seriousness of the breach and the failure of police to file a Report to a Justice as soon as practicable.

Without the excluded photographs, there was insufficient evidence to justify committal, and the respondent was discharged.

The defendants brought a motion to remove the plaintiffs' counsel of record, arguing he would likely be called as a witness at trial regarding his role in assisting a former franchisee to provide documents to the plaintiffs' previous counsel.

The defendants also sought a further and better affidavit of documents regarding these communications.

The court granted the request for a further affidavit of documents, finding the communications and attachments relevant to the issues at trial.

However, the court dismissed the motion to remove counsel as premature, concluding it was unlikely counsel would be called to testify and his evidence would have tenuous relevance.

The respondents in a condominium application brought three preliminary motions: to remove one respondent as a party, to adjourn the application indefinitely for medical reasons and to retain counsel, and to strike cross-examination transcripts.

The court dismissed all three motions, finding that the applicant properly named the joint owner as a respondent, there was no medical evidence or justification for an adjournment, and the rules of civil procedure did not support striking the cross-examinations.

The main application and a motion to convert it to an action were scheduled for a later date.

The plaintiff contractor brought a construction lien action against the defendant owner for unpaid renovation work on a commercial condominium unit.

The parties disputed seven claims for extra work and a 10% discount clause for delay inserted by the owner.

The court found that the extra work was outside the scope of the contract and implicitly authorized, awarding the plaintiff $5,755.09 for the extras.

The court also held that the 10% discount clause was an unenforceable penalty, as it was not a genuine pre-estimate of damages, and dismissed the owner's claim for delay damages.

Judgment was granted in favour of the plaintiff for $12,535.09.

The plaintiff brought a motion seeking an order to transfer ownership of an Endangered Species Act benefit permit to the defendants.

The defendants opposed the motion, arguing the plaintiff failed to comply with a prior security for costs order and failed to serve the Ministry of Environment, Conservation and Parks.

The court granted the plaintiff leave to bring the motion despite a minor delay in paying costs, but dismissed the motion on the basis that the court lacked jurisdiction to transfer the permit without notice to the Ministry.