SCJ 2021

The defendants successfully moved to set aside a noting in default and default judgment in a construction lien action.

The parties could not agree on costs and filed written submissions.

The court found that the plaintiff ought to have consented to the motion, as its likelihood of success was very high.

Applying a notional set-off approach, the court awarded the defendants partial indemnity costs of $6,924.74, minus $2,000 for the plaintiff's costs thrown away, resulting in a net costs award of $4,900 payable by the plaintiff.

The applicant father brought a motion seeking a shared parenting plan, joint decision-making responsibility, and imputed income for the respondent mother.

The respondent mother opposed and sought imputed income for the father, along with spousal and child support.

The court adjourned the financial issues but determined the parenting issues.

Finding that the mother was the historical primary caregiver and noting communication concerns from the father, the court denied a shared parenting plan.

The father was granted parenting time on alternating weekends plus one overnight per week, and the parties were granted joint decision-making responsibility for major decisions.

The parties brought competing motions in a family law proceeding.

The respondent husband sought summary judgment declaring the valuation date as June 30, 2008, while the applicant wife claimed the date was December 20, 2019.

The court dismissed the husband's motion, finding his evidence disingenuous and setting the valuation date at December 20, 2019.

The court granted the wife's motion for interim spousal support, imputing an income of $838,000 to the husband and ordering him to pay $25,000 per month.

The court also granted the wife leave to question the family's long-time lawyer as a non-party, but dismissed her request for interim disbursements without prejudice.

The plaintiffs and the deceased Madan Sharma were involved in a joint venture to build and sell residential homes.

Following Sharma's death, disputes arose over the winding up of the joint venture, with both sides alleging overpayment of management fees and misappropriation of funds.

The court found that the defendants misappropriated $1,586,584.83 from the sale of a joint venture property by directing the proceeds to a non-joint venture corporation, and pierced the corporate veil to hold the individual defendants personally liable.

The court dismissed the defendants' counterclaim for misappropriation but found that the plaintiff's post-2008 record keeping was sufficiently unreliable to constitute oppression, ordering a formal accounting to determine the final state of accounts.

The applicant father brought a motion for a temporary shared parenting plan on a 2-2-3 schedule for the parties' two young children.

The respondent mother opposed the motion, seeking to maintain a schedule with no overnight parenting time, relying on uncorroborated allegations of family violence.

The court found that the father had historically shared parenting responsibilities and that the mother's unilateral termination of overnight access was not justified by the evidence.

The court granted the motion, ordering a phased-in 2-2-3 shared parenting schedule and shared decision-making.

The applicant brought a motion for summary judgment seeking a finding that the child was in need of protection and an order for extended society care with access.

The respondent parents, despite multiple adjournments and warnings, failed to file responding materials but were permitted to give oral evidence.

The court found the parents' evidence lacked credibility and failed to present a viable plan of care.

Applying the summary judgment framework in the child protection context, the court found no genuine issue requiring a trial.

The child was found in need of protection due to the parents' substance misuse, domestic violence, and mental health issues, and was placed in extended society care with access.

The applicant brought a section 8 Charter application to exclude evidence seized pursuant to a search warrant, arguing the Information to Obtain (ITO) was misleading and failed to disclose reasonable grounds.

The court applied the standard of review for search warrants, finding that despite some minor errors and omissions, the amplified record contained reliable evidence that might reasonably be believed on which the warrant could have issued.

The court found reasonable grounds to believe the applicant was involved in a bank fraud scheme and that evidence would be found in his home and vehicle.

The application was dismissed.

The support payor brought a motion to set aside the registration in Ontario of a 2003 child support order and a 2007 variation order made in the Czech Republic.

The court found that the payor had proper notice and a reasonable opportunity to be heard for the 2003 order, and confirmed its registration.

However, as the payor did not receive notice of the 2007 variation proceedings, the registration of the 2007 variation order was set aside.

In a family law motion arising from divorce, spousal support, and property claims, the court ordered the pre-trial sale of the jointly owned matrimonial home under the Partition Act.

The responding spouse's claims of prejudice, homelessness, and possession-based hardship were rejected, and the request for exclusive possession was dismissed after consideration of s. 24(3) of the Family Law Act.

Temporary without prejudice spousal support was fixed at $1,000 per month, no holdback from sale proceeds was ordered, and reimbursement claims relating to carrying costs of the home were deferred to trial.

The court also declined to require a business valuation but ordered an income report from a qualified accountant for support purposes and granted leave to amend pleadings on consent.

The applicant brought a motion to change a 2007 child support order, seeking retroactive child support and contributions to the child's post-secondary education in a six-year concurrent degree program.

The respondent had paid the court-ordered amount since 2007 but failed to disclose his increasing income.

The court found blameworthy conduct by the respondent for failing to disclose his income and ordered retroactive child support back to 2014, three years prior to the applicant's effective notice.

The court also ordered the respondent to pay his proportionate share of post-secondary expenses for the first four years of the program.

However, the court terminated ongoing child support and further post-secondary contributions effective April 30, 2021, finding the 2007 order contemplated support ending after one degree.

The respondent's undue hardship claim was dismissed due to lack of credibility and failure to disclose assets.

The applicants, charged with human trafficking offences, applied under s. 462.34(1) of the Criminal Code to access approximately $133,000 in restrained funds held in their corporation's bank account to pay for living and legal expenses.

The court found the applicants had an interest in the funds and lacked sufficient other means to pay their legal fees, though they did not need the funds for living expenses.

However, because the corporation owed approximately $67,000 in unremitted HST, which is deemed to be held in trust for the Crown under the Excise Tax Act, the court only released the remaining $66,000 to the applicants' counsel to fund their defence.

Following a summary judgment awarding the plaintiffs $806,380.59 for a failed real estate transaction, the court determined pre-judgment interest and costs.

The plaintiffs were awarded $36,293.33 in pre-judgment interest.

Because the plaintiffs bettered their offer to settle of $490,000, they were presumptively entitled to substantial indemnity costs from the date of the offer under Rule 49.10.

The court found the plaintiffs' claimed costs of $121,861.18 to be proportionate and reasonable, and ordered the defendant to pay that amount.

During a sexual assault trial, the accused brought an application to exclude photographs of an Instagram conversation and testimony regarding a deleted text message.

The accused argued the Instagram photos lacked authentication under the Canada Evidence Act and the text message testimony was hearsay.

The court dismissed the application, admitting the Instagram photos because the Crown met the modest threshold for authentication through the anticipated testimony of the witness.

The court also allowed the testimony regarding the deleted text message, ruling it was not hearsay as it was being led to prove the request was made, not for the truth of its contents.

The defendant estate trustee brought a motion to dismiss the plaintiff's action challenging the deceased's will for delay.

The plaintiff, the deceased's separated spouse, commenced the action in 2013 but took few steps to advance it.

The plaintiff conceded the deceased's capacity but maintained his challenge based on undue influence.

The court declined to dismiss the action, finding the delay was explained by the plaintiff's advanced age and the COVID-19 pandemic, and that a fair trial was still possible.

The court ordered the matter set down for trial.

The plaintiff subcontractor brought a motion for summary judgment against the defendant general contractor for unpaid invoices totaling $103,650.53 and for breach of trust under the Construction Act.

The court granted summary judgment for the outstanding debt, rejecting the defendant's argument that a 'pay when paid' progressive payment model applied, as the contract clearly stated payment was due 30 days after invoicing.

The court adjourned the breach of trust claim to a case conference, noting the plaintiff could not establish the absence of a genuine issue for trial because the defendant had failed to provide a full accounting of trust funds.

The plaintiff sought a case conference after the defendant's counsel delayed scheduling a mediation, proposing a date in February 2022.

The court found this delay unacceptable, citing the Supreme Court's direction in Hryniak v. Mauldin to move cases forward in a timely manner.

The court emphasized the importance of mediation in the civil justice system and ordered the parties to hold a mediation before November 30, 2021, along with setting deadlines for updated medical reports and defence medical examinations.

The accused was charged with second-degree murder and attempted murder following a stabbing incident outside a bar.

The accused raised the defence of not criminally responsible (NCR) due to mental disorder, arguing he experienced a dissociative episode triggered by post-traumatic stress disorder after hearing a threat to shoot.

The court rejected the NCR defence, finding the accused's evidence of dissociation and lack of memory lacked credibility, particularly given his organized post-offence conduct.

However, the court found the Crown failed to prove the specific intent required for murder and attempted murder beyond a reasonable doubt, noting the suddenness of the attack, the single stab wounds, and the accused's intoxication and PTSD.

The accused was found not guilty of the charged offences but guilty of the included offences of manslaughter and aggravated assault.

The accused, a commercial truck driver, was convicted of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm after causing a catastrophic highway collision.

The court found the accused drove on insufficient sleep, falsified log books, and was distracted by his cell phone.

The court weighed the severe aggravating factors, including the extraordinary harm caused, against mitigating factors such as the accused's lack of a prior criminal record and employer pressure.

The accused was sentenced to a total of 8 years imprisonment, a 10-year driving prohibition, and a DNA order.

The mother brought an urgent motion to permit the parties' six-year-old child to attend a specialized speech and language program at a different school for grade one.

The father opposed the motion, arguing the child's primary issue was hearing, not speech, and that changing schools would be disruptive.

The court found the mother's proposal was logical, child-focused, and supported by professional recommendations.

The court granted the motion, noting that the father's opposition reflected an unfortunate competitiveness that undermined the spirit of their shared parenting arrangement.

The plaintiff brought a motion to re-certify a class action and appoint a new representative plaintiff, nearly two years after the court had de-certified the action and given class counsel 60 days to find a suitable replacement.

The court found that the proposed new representative plaintiff lacked an appropriate costs indemnity agreement and was implicated in spreading falsehoods among the class.

The court dismissed the motion, holding that allowing a late change of representative plaintiff under these circumstances would be fundamentally unfair to the defendant and an abuse of process.