SCJ 2021

At a case conference in a commercial lease dispute, the court established a timetable for steps leading up to the plaintiff's summary judgment motion and the defendants' Rule 21 motion.

The court declined to rule on other substantive issues, such as demands for particulars and further affidavits of documents, noting they required a proper evidentiary record and formal motions.

The ordered timetable incorporated a two-week extension to the plaintiff's proposal to accommodate defense counsel's schedule.

The Public Guardian and Trustee (PGT) brought an application concerning the property of a woman with developmental delays, initially seeking to terminate her friend's power of attorney and be appointed guardian of property.

The PGT later sought court approval of a Trust Agreement to manage her settlement funds.

The court refused to approve the Trust Agreement, finding that the woman had the requisite capacity to grant the power of attorney to her friend.

The court emphasized the low threshold for capacity to grant a power of attorney and the importance of autonomy, and accepted the friend's informal passing of accounts.

In a child protection proceeding, the father brought a motion to vary a temporary care and custody order to have the children placed in his care.

The children had previously been placed in the interim care of the Society after being removed from the mother's care.

The court applied the test for varying a temporary placement order, finding that the father's consistent and positive access, along with his viable plan for the children's care, constituted a material change in circumstances.

The court determined it was in the children's best interests to be placed in the temporary care and custody of the father, subject to Society supervision and a gradual integration plan, while maintaining the mother's access.

In a pre-trial motion, the Crown sought to admit the accused's police statement as voluntary, while the accused sought its exclusion under s. 24(2) of the Charter, alleging breaches of his s. 10(a) and 10(b) rights.

The accused was arrested for uttering threats in front of his family but was not advised of his right to counsel or the additional procuring charges until 11 minutes later in a separate room.

The court found the statement was voluntary and that the accused had an operating mind.

Although the court found breaches of s. 10(a) and 10(b) due to the 11-minute delay, it declined to exclude the statement under s. 24(2), concluding the breach was minor and society's interest in adjudicating the serious charges on their merits outweighed the impact of the breach.

Following the settlement of their family law proceeding, the applicant sought $340,000 in costs, arguing substantial success and unreasonable behaviour by the respondent regarding disclosure.

The respondent argued that no costs should be awarded given the compromises involved in the settlement.

The court reviewed the applicable legal principles for awarding costs after a settlement, noting that courts should be slow to award costs in such circumstances.

Finding that success was divided, neither party beat their offers to settle, and there was no bad faith, the court ordered that each party bear their own costs.

The plaintiff brought a motion for leave to issue a certificate of pending litigation (CPL) over a Toronto condominium legally owned by his ex-fiancée, the defendant.

The plaintiff claimed beneficial ownership based on an oral agreement and wire transfers he alleged were for the property's purchase.

The court found the plaintiff established a triable issue for a constructive trust.

However, the court dismissed the motion, concluding that the equities favoured the defendant because the property was an investment, not unique to the plaintiff, and damages would be an adequate remedy.

Costs were awarded to the defendant.

The defendant dentists and physicians brought a motion for summary judgment to dismiss the plaintiff's dental and medical malpractice action.

The plaintiff alleged that he suffered a mandibular fracture following a wisdom tooth extraction and that the defendants failed to properly diagnose the injury.

The plaintiff's lawyer was previously removed from the record, and the plaintiff failed to appoint a new lawyer or serve notice of self-representation.

The defendants filed expert reports opining that they met the standard of care.

The plaintiff failed to respond with any expert evidence.

The court granted the motion and dismissed the action, finding no genuine issue requiring a trial without expert evidence from the plaintiff.

The parties, who share joint decision-making responsibility, disagreed on where their two children should attend school after the respondent moved to a new municipality.

The applicant brought a motion to have the children enrolled in a school within his catchment area, supported by the recommendation of an Office of the Children's Lawyer clinician.

The court applied the principles for choice of school disputes and found that enrolling the children in the applicant's catchment area was in their best interests, as it would minimize disruption to their existing community supports and better accommodate their special needs.

The plaintiff bank brought a motion for summary judgment against the defendant for the deficiency owing on an investment loan after the defendant defaulted.

The defendant alleged fraud by his investment advisor, claimed the advisor was an agent of the plaintiff, and raised the defence of non est factum, arguing he did not receive proper independent legal advice.

The court found no evidence of an agency relationship between the plaintiff and the advisor, noted the defendant signed an independent legal advice certificate, and rejected the non est factum defence.

Finding no genuine issue requiring a trial, the court granted summary judgment to the plaintiff for the deficiency and dismissed the defendant's counterclaim.

The applicant mother and respondent father brought competing motions regarding interim exclusive possession of the matrimonial home, parenting, and support.

The parties had a high-conflict separation resulting in the applicant being charged with assault and removed from the home.

The court granted the applicant interim exclusive possession of the home, finding it was in the children's best interests to return to their home and daycare routine.

The court imputed the respondent's income at $266,952 based on prior earnings and non-taxable benefits, ordering interim child and spousal support.

The applicant was granted sole decision-making responsibility, and the respondent's parenting time was ordered to be supervised for three months due to concerns about his alcohol consumption.

The plaintiffs brought a motion for a mandatory interlocutory injunction to compel their neighbours to relocate a heat pump, alleging the noise and vibration constituted a nuisance and caused health issues.

The court applied the modified RJR-MacDonald test for mandatory injunctions.

The motion was dismissed because the plaintiffs failed to demonstrate a strong prima facie case, largely due to insufficient medical and expert evidence linking the heat pump to their complaints, and failed to establish irreparable harm or that the balance of convenience favoured granting the injunction.

Following a successful application for a compliance order against the respondent unit owners for noise, harassment, and by-law breaches, the applicant condominium corporation sought full indemnity costs.

The court awarded the applicant its full costs of $17,645.67 pursuant to section 134(5) of the Condominium Act and the corporation's declaration, finding that innocent unit owners should not bear the expense of enforcing compliance.

The appellant appealed sentence following conviction for sexual assault arising from unwanted touching and explicit sexual comments made to a bank employee during a client meeting.

He argued the sentencing judge mischaracterized the assault, improperly discounted remorse because it was expressed only at sentencing, and failed to give sufficient weight to personal mitigating factors in refusing a conditional discharge.

The appeal court held that the sentencing judge accurately described the evidence, was entitled to treat late remorse as carrying less mitigating weight, and adequately considered the appellant's health, family support, employment history, lack of record, and collateral consequences.

The suspended sentence with 12 months' probation was within the acceptable range and was not demonstrably unfit.

The moving defendants sought a temporary stay of the plaintiff's certification motion pending the determination of a certification motion in a related price-fixing class action involving different electronic components.

The defendants argued that a stay would promote efficiency as the expert evidence and methodology were substantially similar in both actions.

The court dismissed the motion, finding that the actions involved different products, time periods, and parties, and that an indefinite delay would be unfair to the plaintiff class and contrary to the goals of judicial economy and access to justice.

At a case conference, the applicant father sought a substantive order for extended overnight summer parenting time with his two daughters at a resort.

The respondent mother opposed the request, proposing a more limited schedule.

The court found that limited and exceptional circumstances existed to make a substantive order at a case conference.

Considering the strained relationship between the father and the children, and the recommendations of the experts, the court ordered daily parenting time from 12:00 noon to 8:00 p.m. between August 13 and August 27, without overnights.

The court also ordered the parties to proceed with family counselling.

Following the approval of an amended restructuring proposal under the Bankruptcy and Insolvency Act, two limited partner applicant groups sought costs for their participation in the proceedings.

The court declined to award costs, noting the Commercial List practice of generally not awarding costs in restructuring matters.

The court emphasized that restructuring is not a classic adversarial proceeding and that stakeholders should not be discouraged from participating by the threat of costs.

No order as to costs was made for the bankruptcy proceeding, though the court left open the possibility of addressing costs in the related civil proceedings if funds flow back to the partnership.

During a trial for sexual assault and sexual interference, the accused brought a Corbett application to exclude his prior criminal record if he chose to testify.

The accused's record consisted of eight convictions between 1992 and 2011, including assault and drug possession.

The court applied the Corbett factors and found that the defence had attacked the character and credibility of the Crown witnesses, making the accused's record relevant to provide a balanced picture to the jury.

The application was dismissed, allowing the Crown to cross-examine the accused on his record if he testifies.

The plaintiff sought default judgment against nine persons in an action for constructive dismissal.

However, only the Crown was named in the title of proceeding, and the plaintiff had not complied with the notice requirements under the Crown Liability and Proceedings Act, 2019.

The court adjourned the motion, directing the plaintiff to consider whether the parties were properly named and requiring her to serve any future default judgment motion materials on the defendants.

The applicant father brought a motion for equal shared parenting or expanded unsupervised parenting time.

The respondent mother had unilaterally restricted his parenting time following incidents involving the father's intoxication, excessive noise, and police involvement.

The court found that while the father's substance use was a concern, the mother's unilateral self-help remedies were also inappropriate.

The court ordered an expanded parenting schedule for the father, denied the mother's request for a breathalyzer requirement, but imposed strict conditions prohibiting the father from consuming alcohol or drugs before or during his parenting time, subject to a review in six months.

The mother brought a motion for a stay of a term of an interim parenting arbitration award that eliminated the requirement for the father to undergo portable breathalyzer testing four times per day during his parenting time.

The mother sought the stay pending her motion for leave to appeal the award.

The court applied the RJR MacDonald test, emphasizing that in parenting cases, the best interests of the children are paramount.

The court found no serious issue of law, no irreparable harm, and that the balance of convenience did not favour a stay, as the arbitrator had found no evidence of alcohol abuse during the father's parenting time.

The motion for a stay was dismissed.