SCJ 2021

In a proposed class action against a firearm manufacturer for design negligence following a mass shooting, the defendant moved to strike portions of the plaintiffs' layperson affidavit evidence filed for the certification motion.

The impugned evidence included foreign patents for 'smart gun' technology and firearm-related crime statistics.

The court granted the motion to strike, finding that expert evidence in handgun design was required to establish some basis in fact for the design negligence claim, and a layperson could not provide the necessary factual logic or theory.

The court granted the plaintiffs leave to file additional expert evidence and rescheduled the certification motion.

The plaintiff obtained a default judgment against the defendants following a default on a car loan agreement.

The plaintiff sought an order directing a reference to determine issues relating to the judicial sale of the defendants' property, rather than proceeding with a sheriff's sale.

The defendants opposed the motion, seeking an adjournment and a stay of the judgment, but had not moved to set aside the default judgment.

The court granted the plaintiff's motion for a reference, finding a judicial sale advantageous, but stayed enforcement for 60 days to allow the defendants a final opportunity to move to set aside the default judgment.

The plaintiff in a medical malpractice action moved to consolidate his action with two other related actions: a motor vehicle accident (MVA) action in which he was the defendant, and a long-term disability (LTD) action brought by the MVA plaintiff.

The court applied the test for consolidation under Rule 6.01 of the Rules of Civil Procedure.

Finding significant overlap between the MVA and LTD actions, the court ordered them to be tried together.

However, due to the early procedural stage of the malpractice action and the prejudice delay would cause to the MVA plaintiff's income loss claim under the Insurance Act, the court declined to strictly consolidate the malpractice action, ordering it to be tried with the others only if it is ready in time.

At a settlement conference, the court addressed the Applicant's repeated failure to comply with disclosure orders.

Earlier that day, another judge had struck the Applicant's pleadings due to his non-attendance at a motion.

The court set aside the order striking the pleadings under Rule 25(19)(e), noting the Applicant's attempt to attend virtually and the Respondent's need for his financial disclosure to proceed.

The court made temporary consent orders regarding parenting time and ordered the Applicant to provide specific financial disclosure and pay costs.

The representative plaintiff brought a motion to approve a class action settlement regarding unpaid overtime and holiday pay for television production workers misclassified as independent contractors.

The settlement provided for a $1 million payment if a proposed collective agreement was ratified, or $2.5 million if it was not.

The court approved the settlement as fair and reasonable, noting it avoided significant litigation risks regarding certification and individual damages proof.

The court also approved a 30% contingency fee for class counsel and a $7,500 honorarium for the representative plaintiff due to her exceptional involvement in collective bargaining.

The respondent Toronto Transit Commission requested the dismissal of an application commenced by the applicant, who had previously been declared a vexatious litigant.

The applicant commenced the proceeding without obtaining the required leave of the court.

Applying Rule 2.1.03 of the Rules of Civil Procedure, the court found no basis to stay the litigation and dismissed the application in its entirety, awarding costs to the respondents on a substantial indemnity basis.

The applicant, currently on trial for sexual assault in the Ontario Court of Justice, sought an order of certiorari to quash the trial judge's dismissal of his mistrial application and an order of mandamus to permit him to re-elect a jury trial.

The mistrial application was based on the late disclosure of a police occurrence report.

The Crown moved to summarily dismiss the application, arguing it constituted an impermissible interlocutory appeal.

The Superior Court agreed with the Crown, finding that the trial judge's decision regarding the disclosure regime and the mistrial was within her jurisdiction, and therefore certiorari was unavailable.

The application was summarily dismissed.

The applicant appealed an arbitration award that granted summary judgment to the respondent, dismissing her claims to set aside two domestic contracts.

The applicant argued the contracts should be set aside due to financial non-disclosure, lack of understanding, and duress.

The Superior Court of Justice allowed the appeal, finding that the arbitrator made palpable and overriding errors of mixed fact and law by conflating the steps of the summary judgment test, assessing credibility on a conflicting written record without oral evidence, and failing to properly weigh the respondent's non-disclosure of a significant family trust.

The summary judgment was set aside and the matter was remitted to a new arbitrator for a full hearing.

The applicant, Alberta Cricket Association, applied to set aside an arbitration award that granted provincial sport organization status to the respondent, Alberta Cricket Council.

The arbitrator had concluded that the respondent demonstrated effective control of organized competitive cricket in Alberta, replacing the applicant as the member of Cricket Canada.

The Superior Court of Justice granted the application and set aside the award, finding that the arbitrator failed to provide adequate reasons for her decision as required by section 38(1) of the Arbitration Act, 1991.

A new arbitration was ordered.

The defendant brought a motion under section 105 of the Courts of Justice Act and Rule 33.02 of the Rules of Civil Procedure to compel the plaintiff to attend a fourth defence medical examination, this time with a physiatrist.

The plaintiff had already attended examinations with an orthopaedic surgeon, a psychiatrist, and a neurologist.

The court dismissed the motion, finding that the defendant's orthopaedic surgeon had already provided extensive commentary and rebuttal to the plaintiff's physiatrist's report, and the defendant failed to provide sufficient evidence explaining why a further examination by a physiatrist was necessary to ensure trial fairness.

The defendant David Smith was successful on a motion for a permanent stay of the action against him due to the plaintiffs' failure to disclose settlement agreements.

The parties could not agree on costs.

The defendant sought full indemnity costs, arguing the plaintiffs' conduct was an abuse of process.

The court found the plaintiffs' conduct was misguided but not in bad faith, and awarded partial indemnity costs of $27,000 for the motion and $5,238.20 for the action.

The accused, a young person, was tried for second-degree murder following a drug rip-off where he shot the victim twice, including once in the head.

The sole issue at trial was whether the accused had the requisite specific intent for murder under s. 229(a) of the Criminal Code, or whether he should be convicted of manslaughter.

The court applied the W.(D.) framework to the accused's out-of-court exculpatory statements and found them implausible.

Applying the common sense inference that a sane and sober person intends the natural and probable consequences of their actions, the court concluded the accused intended to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued.

The accused was found guilty of second-degree murder.

The appellant appealed an order striking its Notice of Objection under the Repair and Storage Liens Act and directing the release of a customized transport truck to the respondent.

The appellant argued that the work performed was 'manufacturing' rather than 'repair' and that federal regulations prohibited the vehicle's release.

The Divisional Court dismissed the appeal, upholding the finding that the work constituted 'repair' under the Act and rejecting the argument that federal regulations superseded the provincial statutory remedy.

In a proposed class action regarding the rates charged for collect calls made by prisoners in Ontario correctional facilities, the plaintiffs brought a motion to strike portions of an affidavit sworn by an employee of the defendant telecommunications company.

The plaintiffs argued the affiant was improperly giving expert opinion evidence.

The court dismissed the motion, finding that the affiant was providing factual evidence regarding the regulatory framework and the operation of the telephone system, not expert opinion.

The applicant sought child and spousal support following a 22-month cohabitation and marriage.

The central issue was whether the respondent stood in the place of a parent to the applicant's two children from a previous relationship, one of whom has severe autism.

Applying the Chartier factors, the court found the respondent demonstrated a settled intention to treat the children as his own.

The court ordered the respondent to pay child and spousal support for a fixed three-year term, reflecting the short duration of the relationship and the parties' reasonable expectations.

The applicant father brought a motion for temporary child support from the respondent step-mother.

The parties had signed a separation agreement two years post-separation wherein the applicant acknowledged the respondent had no obligation to support his children.

Given the conflicting affidavit evidence regarding whether the respondent demonstrated a settled intention to treat the children as her own, and the clear terms of the separation agreement, the court found no prima facie case for temporary relief.

The motion was dismissed, with the issue left for the imminent trial.

The moving party, a minor who was injured in a collision between his bicycle and the responding party's motor vehicle, sought court approval of a $195,000 tort settlement under Rule 7.08.

The court previously rejected the motion due to inadequate materials and directed the Office of the Children's Lawyer to review the proposed settlement.

After receiving the OCL's report, which highlighted ongoing evidentiary deficiencies and issues with the contingency fee agreement, the court again declined to approve the settlement.

The court ordered the moving party's counsel to provide further detailed evidence addressing twelve specific concerns before the settlement could be reconsidered.

The applicant sought to set aside transactions that made the respondents joint tenants of her deceased father's home, and to declare his 1995 will invalid, alleging he lacked English comprehension and was subject to undue influence.

The court found the deceased had testamentary capacity, understood English sufficiently to make his will and execute the transfers, and acted free from coercion.

The application was dismissed with costs, and the Certificate of Pending Litigation was dissolved.

The plaintiffs in a motor vehicle accident action sought an order that their upcoming trial proceed virtually due to the COVID-19 pandemic and a lack of available courtrooms for in-person civil trials.

The defendant opposed, arguing that credibility and demeanor required an in-person hearing.

The court ordered the trial to proceed virtually, finding that a further two-year delay to accommodate an in-person trial was not in the interests of justice and that credibility could be adequately assessed virtually.

The accused was charged with drug and firearm offences following a traffic stop where police found cocaine and fentanyl in his fanny pack, and later found a loaded firearm in the police cruiser where he had been seated.

The accused brought a Charter application alleging unlawful detention, unreasonable search, and a breach of his right to make full answer and defence due to lost sally port video evidence.

The court dismissed the Charter application, finding the investigative detention and subsequent search were lawful based on officer safety concerns, and the lost video did not cause actual prejudice.

The accused was found guilty of the drug offences but acquitted of the firearm offences, as the court found the police evidence regarding the search of the cruiser unreliable.