SCJ 2021

The self-represented accused, who is on the autism spectrum, sought to challenge prospective jurors for cause based on potential prejudice against persons on the autism spectrum.

Applying the Supreme Court's decision in Chouhan, the trial judge permitted the challenge, finding a reasonable possibility that bias or prejudicial attitudes exist in the community.

The judge also exercised her discretion to allow the accused and the Crown to alternate posing the challenge for cause questions to the jurors, departing from the general rule that the trial judge should pose the questions, in order to maintain the appearance of objective neutrality and accommodate the accused's strong preference.

The plaintiff appealed an order of an Associate Judge requiring her to attend in-person defence medical examinations with a physiatrist and a neuropsychologist.

The plaintiff had refused to attend due to fears of contracting COVID-19.

The Superior Court of Justice dismissed the appeal, finding that the Associate Judge made no palpable and overriding error in concluding that the in-person examinations were necessary and that the assessment facility's COVID-19 safety protocols were adequate.

The plaintiff corporation brought an action for damages against the defendants.

The sole director of the plaintiff corporation brought a motion for leave to represent the corporation pursuant to Rule 15.01(2) of the Rules of Civil Procedure.

The court reviewed the factors for granting leave, noting the applicant's shortcomings as a litigant and the lack of documentary evidence regarding the corporation's internal structure and financial situation.

The motion was dismissed, but the applicant was granted leave to bring the motion again on a further and better record.

The applicant developer sought declarations that its insurers, Aviva and Northbridge, owed a duty to defend and indemnify it in a class action.

The class action alleged the developer negligently misrepresented that condominium units would include a heating system and storage locker, which were not provided.

The insurers denied coverage on the basis that the developer's failure to provide the items was an intentional business decision, not an 'occurrence' or accident.

The court agreed with the insurers, finding that the negligent misrepresentation claims were entirely derivative of the intentional breach of contract.

The applications for coverage were dismissed.

The applicant father and respondent mother both brought motions regarding parenting time for their two-year-old child.

The father sought unsupervised parenting time, while the mother sought professionally supervised contact due to the father's absence and alleged substance abuse.

The court ordered temporary supervised parenting time, finding that the father and child were essentially strangers.

However, the court rejected the need for a professional centre, allowing the paternal grandparents and aunt to supervise the visits at the paternal home, subject to conditions including abstinence from drugs and alcohol.

During a murder trial, the defence sought to call a forensic psychiatrist to testify that the accused may have been in a cocaine-induced psychosis at the time of the offence, and that the alleged conduct was out of character.

The court ruled that the expert could testify about the potential impact of cocaine consumption and the possibility of psychosis, as this was relevant to the defence of intoxication and the ability to form specific intent.

However, the court excluded the expert's opinion that the offence was out of character for the accused, finding it to be impermissible character evidence and oath-helping.

The applicant unions sought interim injunctions to restrain the respondent employers from enforcing mandatory COVID-19 vaccination policies pending the outcome of labour arbitrations.

The court dismissed the Sinai application on the basis that the labour arbitration process provided an adequate alternative remedy, precluding the exercise of the court's residual jurisdiction.

The court dismissed the TTC application on the merits of the injunction test, finding that the loss of employment or income did not constitute irreparable harm and that the balance of convenience strongly favoured the employer's obligation to protect public health and workplace safety.

Amicus curiae brought a pre-trial motion to determine whether the respondent mother was a 'special party' under the Family Law Rules, which would require the appointment of the Public Guardian and Trustee.

The mother also brought a motion to adjourn the proceedings on health grounds and alleged unavailability of counsel.

The court applied the functional test for capacity and concluded that while the mother was an ungovernable litigant who frequently failed to comply with court orders and procedures, there was insufficient medical evidence to rebut the presumption of capacity.

The court dismissed the motion to find the mother a special party and denied her request for an adjournment, ordering the trial to proceed.

The defendants, an athlete and a national sports organization, brought a motion to dismiss the plaintiff's action for damages arising from alleged harassment and assault.

The defendants argued the court lacked jurisdiction because the plaintiff had already pursued a complaint under the organization's internal disciplinary code, making the civil action an abuse of process or collateral attack.

The court dismissed the motion, finding that the internal disciplinary process did not have the authority to award compensatory damages for tortious conduct, and therefore did not oust the jurisdiction of the civil courts.

The plaintiff's motion for the case management judge's recusal was previously dismissed.

The parties could not agree on costs and provided written submissions.

The defendants sought $4,000 on a partial indemnity basis.

The self-represented plaintiff argued he should not pay costs, claiming he did not formally bring a motion and was impecunious.

The court found the plaintiff was responsible for the motion due to his persistent allegations of bias.

The court rejected the impecuniosity argument, noting a lack of evidence and that the plaintiff's conduct caused delay and wasted judicial resources.

The plaintiff was ordered to pay $4,000 in costs to the defendants.

In a class action concerning defective airbag inflators, the plaintiff brought an unopposed motion to lift a stay against Takata Corporation, dismiss the action with prejudice and without costs against Takata Corporation and TK Holdings Inc., and amend the title of proceedings to leave Nissan Canada Inc. as the sole defendant.

The motion followed bankruptcy and civil rehabilitation proceedings in the US and Japan, which were recognized in Canada under the CCAA and released the Takata entities from liability.

The court granted the order as requested.

In an uncontested divorce trial, the applicant sought sole decision-making authority, primary residence, child support, and international travel rights regarding the parties' three-year-old child.

The court granted the applicant sole decision-making and primary residence, ordering that the respondent's parenting time be at the applicant's discretion due to his mental health issues.

The court imputed income to the respondent for periods of unemployment, fixing child support arrears at $29,099.00 and ongoing support at $745.00 per month.

The applicant was also granted the right to travel internationally with the child without the respondent's consent, and awarded $4,000 in costs.

The plaintiff sought damages for injuries sustained in a rear-end motor vehicle accident.

The court found the defendant entirely at fault.

The court concluded the plaintiff's injuries, which included chronic pain and post-concussion syndrome, met the statutory threshold as a permanent serious impairment of an important physical function.

The plaintiff was awarded $100,000 in general damages, $1,993.10 in special damages, and $143,560.78 for future care costs.

Claims for past and future income loss were dismissed as the plaintiff failed to establish she would have worked as a dental assistant but for the accident.

The trustee applied for an order approving the debtor's Division 1 proposal.

The debtor sought an adjournment to object to the trustee's remuneration and to expunge a creditor's proof of claim.

The court denied the adjournment, finding that the debtor had ample opportunity to challenge the claim earlier and that the bankruptcy proceedings had already been excessively delayed.

The court approved the proposal, finding its terms reasonable and calculated to benefit the general body of creditors.

Following a nine-day family trial, the court resolved equalization, post-separation accounting, child support, section 7 expenses, spousal support, a restraining order request, and a tort claim for malicious prosecution.

The court held that an Iranian Mahr was an enforceable domestic contract and had to be included as an account receivable for the wife and a debt for the husband in the net family property calculation, while declining to include alleged Iranian land as the husband's asset.

The court applied a shared-parenting set-off analysis under the Federal Child Support Guidelines, adjusted both parties' incomes including unreported rental income, awarded the husband lump sum spousal support, and denied occupation rent and the wife's restraining order request.

The court further found that the wife had maliciously initiated criminal proceedings without reasonable and probable cause and awarded the husband general and punitive damages.

The applicants entered into an Agreement of Purchase and Sale to buy the respondents' home.

The agreement included an escape clause allowing the respondents to accept a better offer if the applicants did not waive their conditions within 24 hours of notice.

The respondents received a higher offer and notified the applicants, who promptly waived their financing and inspection conditions.

The respondents claimed the applicants also needed to explicitly waive the escape clause itself, and sold the property to the second buyer.

The court found the respondents breached the contract, as the escape clause was merely a mechanism that was fulfilled when the applicants waived their conditions.

The court directed a reference to determine the quantum of damages, noting the applicants' duty to mitigate.

The Integrity Commissioner applied for a determination that a municipal councillor contravened the Municipal Conflict of Interest Act.

The councillor had declared a conflict of interest regarding a fire department service charge levied against her son, but remained in the council meeting and actively questioned the fire department representative about practices and procedures.

The court found the councillor intentionally used her position to attempt to obtain a financial advantage for her son, contravening the Act.

The court declared the councillor's seat vacant but declined to disqualify her from seeking re-election in the future.

The applicant second mortgagee sought assignment of a first ranked mortgage and challenged the priority effect of undisclosed and unregistered mortgage amending agreements entered into after the first mortgage was assigned to the respondent.

The court held that the mortgagor was in default when the applicant demanded an assignment under s. 2 of the Mortgages Act, and that the respondent was obliged to assign the first ranked mortgage upon payment of $788,152.20.

Following prior authority on notice and subsequent encumbrancers, the court held that the undisclosed amending agreements did not obtain priority over the second mortgage.

The court also applied equitable estoppel because the respondent repeatedly represented that the first mortgage was in good standing while capitalizing unpaid interest and increasing the secured amount.

Distribution of proceeds and payment of costs were held in abeyance pending a related trial involving the intervenor.

The applicant sought an adjournment of a combined Settlement Conference/Trial Management Conference because a business valuation was not completed.

The court noted that the applicant had ample time to retain a valuator but failed to do so until shortly before the conference.

The adjournment was granted, but the court awarded costs of $470 to the respondent due to the applicant's failure to be ready to proceed.

In the context of a complex CCAA restructuring, the applicants sought approval for several motions, including a second Key Employee Retention Plan (KERP), an extension of the stay of proceedings, an extension of the DIP financing facility, and two corporate transactions involving the wind-up of subsidiaries.

US class action plaintiffs opposed the KERP and DIP extension, arguing they would deplete the estate.

The court approved all requests, finding the KERP and DIP extension necessary to maximize creditor recovery and advance a restructuring plan.

The court also used its broad jurisdiction under s. 11 of the CCAA to approve a corporate dissolution that technically violated the solvency requirements of the CBCA, as the transaction benefited the estate and did not prejudice stakeholders.