SCJ 2021

The appellant appealed his summary conviction for operating a motor vehicle with a blood alcohol concentration over 80mg.

He argued the arresting officer lacked reasonable and probable grounds for a breath demand because she mistakenly arrested him for 'over 80' instead of 'impaired driving', and that the trial judge erred in admitting the breath samples under s. 24(2) of the Charter.

The Summary Conviction Appeal Court dismissed the appeal, finding the officer had both subjective and objective grounds to make the breath demand based on the totality of the circumstances, and that the trial judge correctly admitted the evidence despite the minor s. 9 Charter breach.

The plaintiff brought a motion to certify a national class action against a telecommunications provider for failing to provide pro-rated refunds to customers who cancelled their wireless service agreements.

The court denied certification for the national class claim under the Telecommunications Act, finding no viable cause of action.

However, the court granted certification for an Ontario subclass advancing claims under the Wireless Services Agreement Act, 2013, finding that the pleadings disclosed a valid cause of action, there was an identifiable class, and the common issues, including aggregate and punitive damages, were suitable for a class proceeding.

The plaintiff brought a proposed class action against a telecommunications provider seeking pro-rated refunds for prepaid wireless services after cancelling her contract.

The plaintiff relied on a statutory cause of action under the Telecommunications Act, alleging the provider breached the CRTC's Wireless Code.

The provider brought a cross-motion to strike the claim.

The Superior Court granted the cross-motion, finding that the plaintiff's claim was essentially for breach of contract, which is expressly excluded from the statutory cause of action by s. 72(3) of the Act.

Alternatively, the court held it would decline to exercise jurisdiction and defer to the CRTC, which has exclusive regulatory authority over the Wireless Code.

The plaintiff brought a proposed class action against a wireless service provider for failing to provide pro-rated refunds upon cancellation of services, relying on the provincial Wireless Services Agreement Act, 2013.

The defendant brought a cross-motion arguing the provincial Act was ultra vires or inoperative due to federal jurisdiction over telecommunications.

The court held that the provincial Act was valid consumer protection legislation, and was not rendered inoperative by the doctrines of federal paramountcy or interjurisdictional immunity.

The appellants sought leave to appeal an arbitration award that upheld a condominium rule prohibiting the retail sale of cannabis from their commercial units.

The appellants argued the arbitrator erred in law by finding the rule consistent with the condominium declaration and by validating certain proxies used to pass the rule.

The Superior Court of Justice dismissed the motion for leave, concluding the alleged errors were questions of mixed fact and law, not extricable questions of law as required under section 45 of the Arbitration Act.

However, the court exercised its equitable jurisdiction to grant a temporary extension for the appellants to wind down their business and dispose of perishable inventory.

The plaintiff was injured by falling ice from a grocery store canopy.

The property owner, Riocan, and its winter maintenance contractor, Clintar, brought cross-motions for summary judgment to determine liability and indemnification.

Clintar argued it was not responsible for clearing canopies and relied on Riocan's past conduct of clearing the canopy.

The court found the contract unambiguously required Clintar to clear snow from canopies and that the entire agreement clause precluded unwritten amendments.

The court rejected Clintar's promissory estoppel argument and held that Clintar breached the contract, triggering the hold harmless clause.

Clintar was ordered to indemnify Riocan.

The defendants brought a motion to determine whether the plaintiff's disability pension benefits ("Union benefits") were deductible from his income loss claim under s. 267.8(1) of the Insurance Act, following a motor vehicle accident.

The court analyzed the nature of these benefits, comparing them to HOOP disability benefits, and concluded they were non-indemnity payments not expressly made deductible by the Act.

The motion was dismissed, ruling that the Union benefits were not deductible.

The plaintiffs brought a motion for leave to issue a Certificate of Pending Litigation (CPL) concerning an agreement to purchase over 800 acres of land from the defendant.

The dispute arose from an alleged misrepresentation regarding the exact acreage of the land and issues related to a historic ship located on the property.

The court found that there was a triable issue regarding the plaintiffs' claim to an interest in the land, which is the first threshold for granting a CPL.

However, after balancing the equities, the court exercised its discretion to deny the CPL.

The denial was primarily based on the plaintiffs' significant delay in bringing the motion (almost three months after the scheduled closing date and awareness of a third-party purchaser), the existence of a third-party agreement for the sale of the land, and the greater harm and inconvenience that granting the CPL would cause to the defendant, effectively acting as an injunction and impeding the sale of a distressed asset.

This is a costs endorsement following a successful motion by the applicant for the return of the parties' children to Nigeria.

The court found the respondent's conduct in unilaterally removing the children from Nigeria was unreasonable.

Crucially, the court found the respondent acted in bad faith by presenting a purported travel consent document that was not authentic and by intentionally deceiving the court regarding the father's consent.

Despite this finding of bad faith on a specific issue, and the applicant seeking full recovery costs of $79,900, the court applied principles of reasonableness and proportionality, considering the overall nature of the proceeding (a motion, not a trial) and the respondent's ability to pay.

The court awarded the applicant $25,000 in costs, payable in monthly installments.

The applicant sought judicial interim release pending an extradition hearing to the Czech Republic for in-absentia convictions of break and enter and theft.

The Attorney General opposed release on primary, secondary, and tertiary grounds.

The court found the applicant to be ordinarily resident in Canada, placing the onus on the Attorney General.

The court determined that the proposed release plan, including 24/7 surety supervision and house arrest, adequately mitigated flight risk and public safety concerns, and maintained confidence in the administration of justice, despite the seriousness of the underlying offences and the strong case for committal.

The application for judicial interim release was granted.

The Applicant brought a motion for disclosure of the Respondent's solicitor's file and for responses to questions refused during questioning.

The Respondent brought a cross-motion for disclosure of the Applicant's solicitor's file.

The Applicant sought to set aside a separation agreement, alleging the Respondent materially misrepresented his financial circumstances by failing to disclose a significant business sale.

The court found that the Respondent had waived solicitor-client privilege by putting his state of mind at issue in his defence against allegations of intentional torts.

The court also determined that settlement privilege did not apply to the Respondent's settlement discussions due to the public interest in ensuring full and frank disclosure in cases of alleged misrepresentation.

The Applicant's motion was granted, and the Respondent's cross-motion was dismissed.

The applicants sought ownership by adverse possession of a triangular parcel of land ("Disputed Lands") on their property's eastern border.

The respondent, the registered owner of the adjoining property, conceded a portion of these lands ("Common Grounds") but disputed the remainder.

The court found that the applicants established adverse possession of the "Common Grounds" due to their continuous, open, and exclusive use, and the mutual mistake regarding ownership.

However, the court found insufficient evidence to establish adverse possession of the balance of the "Disputed Lands." The judgment declared the applicants as lawful owners of the "Common Grounds" and ordered the necessary land registry amendments.

The plaintiff brought a motion to compel the production of data, correspondence, and reports from two environmental consulting firms retained by the defendants.

The defendants claimed litigation privilege over the documents.

The court found that litigation was not the dominant purpose for the creation of the documents, as the parties were still working cooperatively to solve an environmental remediation issue at the time.

Furthermore, the court held that even if privilege existed, the defendants implicitly waived it by directing the plaintiff to share information directly with the consultants without advising that the process was privileged, and by claiming the consultants' costs in their counterclaim.

The motion for production was granted.

This motion concerned a solicitor's negligence claim where the defendants sought further and better production of documents from the plaintiff, including a particularized Schedule 'B' for privileged documents.

The plaintiff brought a cross-motion to amend the statement of claim, notably to include a Charter-based claim against the defendants.

The court granted the defendants' motion for further production, emphasizing the plaintiff's obligation for fulsome disclosure in a solicitor's negligence claim, and ruled that solicitor-client privilege was impliedly waived regarding the legal advice and litigation strategy in the underlying criminal matter.

The court denied the plaintiff's proposed Charter amendment, finding no legal basis for such a claim against a private actor.

The moving defendants sought to set aside a default judgment granted against them in January 2019 for failing to file a defence to the plaintiffs' action regarding unpaid real estate loans.

The court applied the three-part test from Hanratty v. Woods and found that the motion was not launched forthwith, the default was intentional, and the defendants failed to present a triable defence.

Relying heavily on text messages where the individual defendant personally guaranteed repayment, the court dismissed the motion to set aside the default judgment.

The parties separated after a 21-year marriage.

The primary issue was the equalization of the matrimonial home, which the respondent had inherited from her grandparents.

The applicant claimed a 50% ownership interest based on an alleged agreement and unjust enrichment, and sought an unequal division of net family property under s. 5(6) of the Family Law Act due to significant post-separation increases in the property's value.

The court found the respondent was the sole owner but the applicant was entitled to an equalization payment based on the valuation date value.

The court declined to apply s. 5(6), finding the threshold of unconscionability was not met.

The court also awarded the applicant occupation rent for a mobile home on the property, retroactive spousal support, and ordered him to pay child support for one child.