SCJ 2021

The defendants' counsel brought a motion to be removed from the record shortly before a scheduled wrongful dismissal trial.

The plaintiff opposed any adjournment of the trial date but did not oppose the removal of counsel.

The court granted the motion to remove counsel due to a breakdown in the relationship and lack of instructions following a corporate acquisition.

However, the court refused to adjourn the trial date, finding that the corporate defendant had ignored the approaching trial and that an adjournment would unfairly prejudice the plaintiff.

The applicant sought an Amended and Restated Initial Order, approval for a sale and investment solicitation process, and an increase in DIP financing in its CCAA proceedings.

Due to the chronic problem of late filings on the Commercial List, the court adjourned the motion because the materials were filed late the evening before the hearing.

The court extended the stay and authorized a small increase in DIP borrowing to maintain the business until the adjourned date, warning counsel that late filings for scheduled matters will result in adjournments.

The defendant in a defamation action brought under the Simplified Procedure delivered a notice of motion to dismiss the claim as a SLAPP under s. 137.1 of the Courts of Justice Act.

The court addressed the scheduling of the motion, noting the routine disregard for the mandatory 60-day time limit under s. 137.2(2).

The court enforced the 60-day limit, scheduling the motion accordingly despite court backlogs, and ruled that the statutory allowance for cross-examination on anti-SLAPP motions overrides the general prohibition against cross-examination in Simplified Procedure actions.

The Attorney General of Ontario brought an application under the Civil Remedies Act, 2001 for the civil forfeiture of approximately $3.7 million held in the respondents' bank accounts, alleging the funds were the proceeds or instruments of illegal online cannabis sales and money laundering.

The respondents had used a Hawala informal currency exchange to transfer legitimately earned Chinese currency into Canadian funds.

The court found that while a small portion of the funds could be traced to unlawful activity, the respondents were 'uninvolved interest holders' and 'responsible owners' who acquired the funds for fair value without knowledge of the illegal source.

The application for forfeiture was dismissed.

The plaintiff sued the defendants for breach of contract, claiming a management fee for supervising a construction project at the defendants' home.

The defendants moved for an order requiring the plaintiff to serve a further and better affidavit of documents, seeking timesheets, invoices, and communications related to the project and other properties.

The court granted the motion, finding the requested documents relevant to determining the actual project cost, the adequacy of the plaintiff's management, and the quantum meruit claim.

The court also held that ordering disclosure was proportionate to the issues and amount involved.

The remaining defendants brought a motion to dismiss the plaintiffs' action for abuse of process, arguing that the plaintiffs failed to immediately disclose a settlement agreement with a co-defendant.

The court dismissed the motion, finding that the settling defendant did not switch sides or alter the adversarial orientation of the parties.

The settlement merely let a minor player out of the lawsuit in exchange for further documentary disclosure, which did not change the litigation landscape entirely.

The plaintiff set the action down for trial and counsel attended trial scheduling court to fix a date.

The judge convened a case conference and determined that the action, commenced in 2014 regarding a construction dispute, was not ready for trial.

Interlocutory steps including undertakings, potential refusal motions, and expert reports were incomplete, and a companion action had sat dormant.

The judge struck the action from the trial list, directing counsel to return only when the matter is truly ready for trial.

The accused, charged with assault and robbery, brought an application for the production of third-party records held by the Victim/Witness Assistance Program.

The application was based on an email from the complainant indicating a desire to withdraw the criminal complaint due to a cultural and community agreement.

The court found that the accused established the likely relevance of the records, as the agreement raised questions about the complainant's motives and credibility.

The court ordered the records produced to the court for review at the second stage of the application.

The offender was convicted of armed robbery of a pharmacy while masked, and several firearms offences relating to a loaded, sawed-off SKS rifle.

The offender had a lengthy criminal record including prior armed robberies.

The Crown sought a 16-year global sentence, while the defence sought 9-10 years with significant credit for harsh pre-trial custody conditions during the COVID-19 pandemic.

The court applied the totality principle and considered the offender's rehabilitative prospects, imposing a global sentence of 10 years imprisonment, less credit for pre-sentence custody.

The applicant scheduled a motion as a 59-minute short motion, despite filing voluminous materials that clearly indicated it was a long motion.

The parties settled the motion before it was heard.

The court issued an endorsement reprimanding the practice of 'jumping the queue' by improperly scheduling long motions as short ones, noting it wastes scarce judicial resources and harms other litigants.

The court warned that future instances of this practice may result in costs consequences under the Family Law Rules.

The respondent father brought a motion for contempt against the applicant mother, alleging she breached two final orders regarding joint decision-making and alternating weekly parenting time.

The court dismissed the motion regarding the decision-making order, finding it was not clear and unequivocal.

Regarding the parenting time order, the court found the mother deliberately and wilfully breached the order by failing to take concrete steps to require the 14-year-old child to visit his father.

However, the court declined to exercise its discretion to find her in contempt, noting the father had alternate adequate remedies available and a contempt finding would not advance the child's best interests.

The respondent mother sought sole decision-making responsibility, sole parenting time, a no-contact order against the respondent father, and permission to obtain a passport and travel internationally with their child without the father's consent.

The father did not respond to the claims and did not participate in the uncontested trial.

The court found that the father had a history of criminal behaviour, physical violence, and verbal abuse, and had been largely absent from the child's life.

The court granted the mother's requests, including a no-contact order, finding it in the child's best interests.

The applicant mother and respondent father separated after a five-year relationship.

The mother sought sole decision-making responsibility, a change to the children's surnames, child support, and spousal support.

The court granted the mother final decision-making responsibility after a required consultation process, citing the parties' inability to communicate effectively.

The request to change the children's surnames was dismissed as not being in their best interests.

The father was ordered to pay ongoing child support, child support arrears, and non-compensatory spousal support for a fixed duration.

The applicant, a community development corporation, brought an application for a declaration that it is a 'local board' under the Municipal Affairs Act and therefore exempt from municipal property taxation under s. 3(1)(9) of the Assessment Act.

The court applied principles of statutory interpretation, including ejusdem generis, and found that the applicant did not meet the definition of a local board.

The application was dismissed.

The appellant, a registered massage therapist, appealed his conviction for sexual assault against a client.

He argued the trial judge provided insufficient reasons, misapprehended evidence, and erred in assessing credibility and the defence of mistaken belief in communicated consent.

The Superior Court of Justice allowed the appeal, finding the trial judge improperly used the complainant's prior police statement and absence of embellishment to bolster her credibility, and failed to make necessary factual findings regarding the appellant's evidence and whether he took reasonable steps to ascertain consent.

A new trial was ordered.

The plaintiff brought a motion to strike the defendants' jury notice in a motor vehicle collision action scheduled for trial in February 2022.

Due to the ongoing COVID-19 pandemic, the Omicron variant, and the suspension of civil jury trials in London, the court found that waiting for a jury trial would cause unacceptable delay and prejudice.

Applying the principles from Louis v. Poitras, the court provisionally struck the jury notice and ordered the matter to proceed as a judge-alone trial.

Sentencing for historic sexual offences against children involving multiple victims, including sexual touching committed in positions of familial and trusted adult authority.

The court emphasized the gravity, inherent wrongfulness, and lasting harm of child sexual abuse, relying on recent Supreme Court guidance stressing denunciation, deterrence, and proportionality.

Although the judge expressed serious reservations about the leniency of a community-based sentence for offences of this nature, the court applied the public interest test governing joint submissions and accepted a joint proposal for a conditional sentence because rejection would not bring the administration of justice into disrepute.

A concurrent conditional sentence of two years less one day was imposed, followed by three years' probation, together with DNA, lifetime SOIRA, and weapons prohibition orders.

The applicants sought broad disclosure and privileged prosecutorial communications to support an abuse of process claim after new charges were laid following a prior stay of related charges arising from the same investigation.

The court held that the tax evasion allegations were demonstrably independent of the prior stay because the investigation had been ongoing well before the original takedown and continued throughout.

However, the timing and surrounding circumstances of the later money laundering and possession of property obtained by crime charges created a sufficient threshold basis to review prosecutorial discretion and order targeted disclosure.

Applying the prosecutorial-discretion abuse standard and the innocence-at-stake framework, the court concluded solicitor-client privilege could be pierced as a last resort to test whether those charges were laid to circumvent the earlier stay.

Michael Simonelli’s application was dismissed, while Raffaele Simonelli’s application was allowed in part.

The plaintiff, an independent financial advisor, brought an action against the defendant lender to enforce an Irrevocable Direction for the payment of consulting fees.

The plaintiff had facilitated a loan agreement between a borrower and the defendant.

The Irrevocable Direction, signed by the borrower and acknowledged by the defendant, directed the defendant to pay the plaintiff 2% of the authorized loan facility from the first drawdown.

The defendant refused to pay, arguing lack of authority and insufficient availability of funds.

The court found the Irrevocable Direction binding, rejected the availability argument as commercially absurd, and held that the defendant breached its contractual and trust obligations.

Judgment was granted in favour of the plaintiff for US$679,800.

The applicant father brought an urgent motion seeking an order to travel with the parties' 10-year-old child to Greece for the Christmas School Break.

The respondent mother opposed the travel due to the Covid-19 pandemic, the Omicron variant, and the child only having one dose of the vaccine.

The court dismissed the motion, finding that the international trip posed a higher risk and was not in the child's best interests, particularly noting the father's prior breaches of court orders and public health rules.