SCJ 2021

Following the dismissal of the applicant's family law application via a summary judgment motion, the respondent sought partial indemnity costs of $7,500.

The applicant, who had repeatedly delayed proceedings, failed to file responding materials, and ignored previous costs orders, argued she should pay no costs due to financial hardship and health issues.

The court rejected the applicant's arguments, finding her litigation conduct unacceptable and her claims of ignorance of the process not credible.

The court ordered the applicant to pay $6,500 in costs to the respondent, emphasizing the need to sanction inappropriate litigation behavior and achieve proportionality.

The applicant father brought a motion to temporarily vary a final parenting order, seeking immediate residential time with his 12-year-old daughter who had refused contact with him for eight months and was suffering from severe OCD.

He also sought to restrict the respondent mother's new partner from attending his parenting time and the children's appointments.

The court declined to force a change in the parenting schedule pending the completion of agreed-upon family reconciliation therapy, finding insufficient evidence to justify a sudden change.

However, the court ordered that the mother's partner not attend events where the father is present to reduce the children's exposure to loyalty conflicts and anxiety.

The plaintiff, a volunteer fire captain and administrative assistant, was terminated without cause by the municipality's CAO based on unfounded, sexist rumours and gossip.

The court found the termination was conducted in bad faith and was tainted by patent gender-based discrimination.

The CAO also made defamatory statements about the plaintiff to the municipal council, which lost the protection of qualified privilege due to malice.

The court awarded the plaintiff six months' reasonable notice, $75,000 in moral damages, $35,000 for Human Rights Code violations, $20,000 for defamation, and $60,000 in punitive damages.

The defendants brought a motion to examine the plaintiff's former solicitor for discovery and for production of documents from her former law firm to support a Limitations Act defence.

The defendants sought to prove the plaintiff knew of his entitlement under his grandfather's will before February 28, 2016.

The court dismissed the motion as premature, finding that the defendants had not first made a diligent effort to obtain the targeted information from TD Canada Trust, the entity that administered the trust funds, as required by Rule 31.10(2) of the Rules of Civil Procedure.

The Crown applied under s. 486.2(2) of the Criminal Code for an order permitting the adult complainant in a sexual assault trial to testify via closed-circuit television (CCTV).

The court reviewed a videotaped statement of the complainant and considered the factors under s. 486.2(3).

The court found that while the complainant could likely testify in the courtroom, permitting her to testify via CCTV would facilitate the giving of a full and candid account.

The application was granted.

The applicant brought an urgent motion for exclusive possession of a jointly owned home and primary parenting of two children.

The parties were unmarried spouses.

The respondent brought a cross-motion for the immediate sale of the home and shared parenting.

The court dismissed the claim for exclusive possession, finding no statutory or inherent jurisdiction to oust an unmarried joint owner.

The court also dismissed the cross-motion for sale, finding that a forced sale would cause hardship to the children amounting to oppression.

The court granted primary residential care to the applicant with specified parenting time for the respondent.

The appellant appealed a sexual assault conviction on the basis of ineffective assistance of trial counsel.

The court applied the governing framework requiring proof of the material facts, incompetence, and a resulting miscarriage of justice, and found that although the appellant did not prove counsel failed to advise him of immigration consequences, counsel's lack of preparation and failure to put the defence theory and key allegations to Crown witnesses amounted to incompetence.

The court held that these omissions materially affected credibility findings and undermined both the reliability and apparent fairness of the trial.

The conviction was quashed.

The plaintiff brought a motion for summary judgment seeking to evict the defendant from her condominium unit and for damages for unpaid condominium fees and loss of opportunity.

The defendant, who had occupied the unit since 2011 under an oral agreement to pay condominium fees, refused to vacate and counterclaimed for reimbursement of fees paid.

The court granted summary judgment, finding the defendant was a trespasser and ordering his eviction.

The court awarded $38,765 in damages for unpaid condominium fees but declined to award damages for loss of opportunity.

The defendant's counterclaim was dismissed as lacking merit and being barred by issue estoppel from prior Landlord and Tenant Board proceedings.

In a family law trial following a 37-year marriage, the court addressed spousal support, the sale of the matrimonial home, and the equalization of net family property.

The applicant wife, who was self-represented, sought spousal support and an equalization payment.

The respondent husband sought an unequal division of net family property under s. 5(6) of the Family Law Act, arguing the applicant had recklessly depleted family assets through a severe gambling addiction.

The court ordered spousal support at 50% of the respondent's pension income.

However, finding that the applicant had lost hundreds of thousands of dollars gambling, the court held that an equal division of net family property would shock the conscience of the court.

The court reduced the equalization payment to zero, ordered the sale of the jointly owned home, and directed a 60/40 split of the sale proceeds in favour of the respondent.

The appellant was convicted of refusing to comply with an approved screening device demand at a RIDE check.

On appeal, he argued that the trial judge provided insufficient reasons by failing to address the investigating officer's failure to record the interaction, and that the trial judge misapplied the W.(D.) framework when assessing credibility.

The Superior Court of Justice dismissed the appeal, finding that the trial judge's reasons were sufficient when read in the context of the trial record, and that there was no error in the application of the burden of proof or the assessment of the evidence.

Following a judge-alone criminal trial arising from an encounter at a wedding reception, the court applied the W.(D.) framework to conflicting evidence about consensual sexual activity, alleged slapping, alleged choking, and alleged sexual assault causing bodily harm.

The court rejected the accused's evidence but found it did not raise the matter because the Crown still failed to prove the charges beyond a reasonable doubt on the evidence accepted.

The complainant was found generally credible, but the court identified significant frailties and inconsistencies in her recall, particularly concerning chronology, consent to oral sex, and the alleged injuries.

The court also found the corroborative medical and lay evidence insufficiently reliable to establish the alleged injuries or the alleged choking and sexual assault beyond a reasonable doubt.

All counts were dismissed and an acquittal entered.

The accused, charged with sexual assault, brought an application for a stay of proceedings under s. 11(b) of the Charter, arguing his right to be tried within a reasonable time was violated.

He contended that following the enactment of Bill C-75, which eliminated preliminary hearings for his charge, the presumptive ceiling for his Superior Court trial should be 18 months rather than 30 months.

The court rejected this argument, holding that the 30-month ceiling applies to all cases in the Superior Court regardless of whether a preliminary hearing is held.

The court also found that the anticipated net delay of 22 months, after deducting Covid-19 related exceptional circumstances, was not markedly longer than reasonably required.

The application for a stay was dismissed.

The plaintiff bank brought a motion for summary judgment against the self-represented defendant for amounts owing on a personal line of credit and two credit cards, totaling $172,716.58.

The defendant did not dispute the existence of the credit facilities or the calculation of the amount owing, but argued the bank should have extinguished these debts when it enforced a security interest on his recreational property.

The court found no genuine issue for trial, noting the bank had no obligation to extinguish the unsecured debts when enforcing its secured mortgage.

Summary judgment was granted in favour of the plaintiff, with costs fixed at $6,500.

The plaintiff lender brought a motion for summary judgment against a lawyer who failed to honour an irrevocable direction to pay settlement funds to repay a litigation loan.

The lawyer had acknowledged the direction but mistakenly paid the settlement funds directly to his client.

The court found the lawyer personally liable for breaching his covenant, treating it akin to a solicitor's undertaking.

The plaintiff was awarded the principal amount plus contractual interest up to the date of the breach, and statutory prejudgment interest thereafter.

The claim against the lawyer's LLP was dismissed, and no costs were awarded.

The accused was charged with multiple offences, including assault, pointing a firearm, and mischief, arising from a seventeen-year relationship with the complainant.

The court found the complainant's evidence regarding the major incidents, including two instances of pointing a handgun and an assault with rocks, to be credible and reliable, supported by corroborating evidence.

However, the court had a reasonable doubt regarding the reliability of her testimony on lesser charges due to conflation of events over the lengthy period of abuse.

The accused was found guilty of assault, pointing a firearm, assault with a weapon, and mischief, but acquitted of the remaining charges.

The accused was charged with arson and manslaughter following a fatal fire at a rooming house.

The Crown's case relied heavily on two alleged confessions by the accused and his history of making threats to burn down the building.

The court found significant credibility and reliability issues with the Crown witnesses, many of whom suffered from mental health issues or had extensive criminal records.

Furthermore, the presence of a plausible alternate suspect with a motive raised a reasonable doubt.

The accused was found not guilty on both charges.

The plaintiffs brought a motion to amend their statement of claim to add a claim for punitive damages and allegations of spoliation of evidence following a pedestrian motor vehicle accident allegedly involving street racing.

The court granted leave to add the punitive damages claim and spoliation allegations concerning the sale of a vehicle and replacement of an engine, finding them to be issues worthy of trial.

However, the court denied leave to add spoliation allegations regarding electronic communications and a failure to remain at the scene, citing a lack of factual foundation.

Following the dismissal of a proposed $240 billion class action regarding a data breach, the successful defendants sought costs.

The plaintiffs argued costs should be limited to a partial indemnity scale for a pleadings motion.

The court found that the plaintiffs' unsubstantiated allegations of professional misconduct against defence counsel, combined with their egregious violations of pleading rules and massive expansion of the claim, justified costs on a substantial indemnity basis.

The court awarded $725,000 to Capital One and $500,000 to Amazon Web.

On a Crown application in a judge-alone criminal proceeding, the court admitted each complainant's evidence as similar fact evidence on the other counts arising from allegations of sexual abuse within a household involving three sisters.

Applying the governing similar fact framework, the court found an air of reality to innocent collusion because of family discussions, but concluded on a balance of probabilities that the evidence was not tainted by collusion.

The court held that the circumstances of the allegations disclosed a persuasive degree of connection across counts, particularly the shared family setting, opportunity, relationship of trust, and broadly similar pattern of sexualized conduct.

The probative value of the evidence on actus reus, credibility, and reliability significantly outweighed the low risk of moral or reasoning prejudice in a judge-alone trial.

The offender was convicted of two counts of fraud over $5000 and one count of knowingly using a forged document involving significant loans from private lenders.

The Crown sought a three-year sentence, while the offender sought a conditional sentence.

The court found the offences constituted a large-scale fraud, attracting a three-to-five-year range.

However, considering the offender's lack of a prior record and the severe collateral immigration consequences (deportation without appeal), the court imposed a sentence of 30 months imprisonment.