SCJ 2021

The defendants brought a motion to discharge a claim for lien and vacate a certificate of action, arguing the plaintiff was an owner, not a contractor, under the Construction Act.

The plaintiff claimed he was a contractor who provided labour and materials for a house construction.

The court found that the plaintiff and defendants had a partnership agreement to build and sell the house for profit, making the plaintiff an owner.

As an owner cannot lien their own property, the motion was granted, and the claim for lien was discharged.

The defendants, Eaton and the City of London, moved for summary judgment to dismiss the plaintiff's environmental contamination claims as statute-barred.

The plaintiff alleged that historical manufacturing operations on the defendants' former property caused TCE contamination that migrated to the plaintiff's property.

The court found that the plaintiff had actual or objective knowledge of its potential claims against the defendants more than two years before seeking to add them to the action.

The court also rejected the plaintiff's argument that the ongoing migration of contaminants constituted a continuing tort or a continuing spill under the Environmental Protection Act.

The motions for summary judgment were granted and the claims against Eaton and the City were dismissed.

The applicant brought an application for expanded access to the digital recording of his trial.

The court conducted a scheduling hearing and set the application to be heard on December 21, 2021, along with deadlines for written submissions.

Following an urgent motion where the applicant was granted primary residency of the child, the court determined the issue of costs.

The applicant sought $30,000, while the respondent argued she should recover 50% of her own costs.

The court found the applicant was the successful party, noting the respondent's unreasonable conduct in abruptly enforcing a stale order and making unsupported allegations.

Applying the principles of proportionality and reasonableness, the court ordered the respondent to pay $25,000 in costs to the applicant, deductible from ongoing support payments if unpaid.

The plaintiff brought an urgent motion for a Certificate of Pending Litigation (CPL) against a residential property after the defendant vendor failed to close the transaction due to an inability to discharge two mortgages.

The mortgages were subsequently assigned to a third party who opposed the CPL and sought to sell the property under power of sale.

The court found that while the plaintiff established a triable issue regarding an interest in land, the balance of equities under the Dhunna factors did not favour granting the CPL.

The plaintiff failed to prove the property was unique, damages were an adequate remedy, and the third-party mortgagee would suffer greater prejudice if the CPL were granted.

During a criminal trial for a home invasion and assault, the Crown brought an application on a voir dire to admit the videotaped police statement of an unavailable witness under the principled exception to the hearsay rule.

The witness, who was initially arrested for the offences against his father, could not be located to testify.

The court found the necessity criterion was met but concluded the statement lacked threshold reliability.

Given the witness's animus toward the victim and his motive to fabricate while under arrest, the absence of an oath and contemporaneous cross-examination posed significant limitations on assessing the statement's truthfulness.

The application was dismissed.

The applicant, McEwan Enterprises Inc., sought an Amended and Restated Initial Order at a comeback hearing in its CCAA proceedings to extend the stay period and increase the administration and directors' charges.

A creditor opposed the motion, arguing the applicant should not be allowed to continue without a court-approved marketing and sale process and raising concerns about a proposed transaction.

The court granted the requested relief to allow the applicant to continue operations, finding the creditor's concerns raised arguable issues that were more properly addressed at an upcoming motion to approve the proposed transaction.

The plaintiffs brought a motion for summary judgment in a defamation action against the defendant.

The defendant had shared a screenshot of a video of the plaintiffs play fighting, falsely accusing them of racism and mocking the death of George Floyd.

The viral social media campaign resulted in the plaintiffs losing their jobs and facing severe harassment.

The court granted summary judgment, finding the statements defamatory and rejecting the defences of justification and fair comment.

The court awarded each plaintiff $50,000 in general damages and granted a permanent injunction requiring the removal of the posts.

The accused was tried before a judge alone on charges of invitation to sexual touching, sexual interference, and sexual assault arising from two alleged incidents involving a child complainant related through marriage.

The central issue was whether the Crown had proven that the alleged events actually occurred.

The court reviewed the evidence of the complainant and her brother in detail, applying the governing approach to child witness credibility and the limited use of prior consistent statements.

While recognizing that delayed disclosure and post-incident behaviour could not undermine credibility through stereotype-based reasoning, the court found material inconsistencies within the complainant's evidence and significant conflicts between the siblings' accounts.

The Crown failed to prove the allegations beyond a reasonable doubt, and the accused was acquitted on all counts.

The respondent mother brought a motion at the opening of a family law trial to determine the admissibility of evidence regarding the applicant father's professional misconduct as a police officer.

The father argued that the Police Services Act created an absolute privilege over all information related to his disciplinary proceedings.

The court held that while documents prepared for the disciplinary process and testimony from those involved are inadmissible and non-compellable, the underlying facts of the misconduct, the charges, and the outcome are provable facts at trial.

The court also rejected arguments that the father had waived privilege or that the Divorce Act paramountcy overrode the provincial statute.

The parties brought motions regarding parenting time for their two children.

The applicant father sought equal parenting time, while the respondent mother sought primary residence, alleging a history of emotional and verbal abuse.

A key issue was the admissibility of a surreptitious audio recording of the applicant berating the respondent.

The court admitted the recording, finding its probative value regarding the applicant's conduct and credibility outweighed the policy against secret recordings.

The court ordered that the children reside primarily with the respondent, with specified parenting time for the applicant, finding that equal parenting time was not in the children's best interests due to the applicant's anger and denigration of the respondent's family.

The court issued a costs endorsement following motions regarding supervised parenting time.

The applicants, the mother and maternal grandmothers, were largely successful in their request to have family members supervise contact with the child, rather than a professional service.

The respondent father took an unreasonable position in insisting on professional supervision and arbitrarily cutting off contact with the grandmothers.

The court awarded costs of $8,500 to the mother and $10,000 to the grandmothers, payable by the father.

The applicants were successful on a motion regarding the procedure for DNA testing to determine if the respondent's child was the biological child of the deceased.

The applicants sought costs of $17,485.82 on a partial and substantial indemnity basis.

The court found the applicants were the successful parties and their offer to settle was reasonable, but concluded the costs claimed were excessive given the narrow issue and the modest amount in dispute ($62,841.54).

The court fixed the applicants' costs at $7,213 inclusive of HST and disbursements.

The applicant father brought a motion to enforce a final parenting order after the respondent mother breached it, resulting in the father not seeing the children for several months.

Instead of pursuing a contempt motion, the father sought a Section 30 assessment under Rule 1(8) of the Family Law Rules.

The court held that Rule 1(8) is the preferred, child-focused approach to a breach of a parenting order, avoiding the exacerbation of conflict inherent in contempt proceedings.

The court ordered a Section 30 assessment to determine the children's best interests and how to make the parenting schedule operative.

Sentencing following conviction after trial for historical sexual abuse of two very young child relatives by a trusted caregiver.

Applying the Supreme Court's framework for child sexual abuse sentencing, the court emphasized denunciation, deterrence, profound long-term harm, breach of trust, repetition of abuse, the victims' vulnerability, and the aggravating effect of a family cover-up.

Although the offences were approximately 35 years old, the passage of time did not diminish their seriousness or impact.

The court reduced the otherwise fit 10-year global sentence to 9 years to reflect the offender's poor health, limited English, and the harsher custodial consequences of the COVID-19 pandemic, then credited pre-trial custody for an effective sentence of 8 years and 4 months concurrent.

Ancillary DNA, SOIRA, firearms prohibition, and non-communication orders were also imposed.

The third parties brought a motion to compel the plaintiffs to disclose their real estate lawyer's files relating to the purchase of their property.

The plaintiffs opposed, claiming solicitor-client privilege.

The court found that the plaintiffs' former counsel had previously undertaken to produce the files and had thereby waived any claim to privilege.

The motion was granted and the plaintiffs were ordered to produce the files.

The defendants brought a motion under Rule 25.11 to strike the plaintiff's Fresh as Amended Statement of Claim in its entirety, or alternatively, to strike specific paragraphs.

The plaintiff, a former union president, claimed constructive dismissal, breach of contract, intentional infliction of mental suffering, and defamation following a prolonged conflict with the defendants.

The court declined to strike the claim as a whole, finding it provided a logical presentation of the conflict and could be responded to.

However, the court struck several specific paragraphs that contained evidence, irrelevant historical facts, or immaterial references to non-parties, granting the plaintiff leave to amend.

The accused was convicted in absentia of importing 1.8 kilograms of cocaine after absconding prior to her retrial.

The Crown sought a sentence of six years' imprisonment.

The court considered the gravity of the offence, the significant amount of cocaine, and the accused's personal circumstances as a first-time offender acting as a drug mule.

Finding no exceptional circumstances to justify a downward departure from the established sentencing range, the court sentenced the accused to six years' imprisonment.

The plaintiff brought a cross-motion to declare that a default judgment debt owed by the defendant, a corporate director, survived his bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The defendant had breached the trust provisions of the Construction Lien Act by allowing construction financing funds to be used for non-project purposes.

The court found that the defendant, as a fiduciary, misappropriated trust funds through willful blindness and failure to oversee the corporation's finances.

The court declared that the judgment debt of $181,133.23 plus costs survived the bankruptcy.

The appellant appealed the trial judge's dismissal of his application for a stay of proceedings under s. 11(b) of the Charter.

The appellant argued that a period of delay caused by missing video disclosure should not have been attributed to the defence.

The Superior Court of Justice found no error in the trial judge's conclusion that defence counsel failed to exercise due diligence by not reviewing the disclosure until the eve of trial.

The appeal was dismissed as the net delay fell well within the Jordan ceiling.