SCJ 2022

A physician sought judicial review of a hospital board's decision not to renew his privileges, while an appeal of the same decision was already underway through the Health Professions Appeal and Review Board (HPARB) and further appealed to the Divisional Court.

The hospitals moved to dismiss the application for judicial review, arguing it was moot, vexatious, an abuse of process, and a collateral attack on the statutory process.

The court granted the motion, quashing the application for judicial review, emphasizing the principle of exhausting administrative remedies and preventing fragmentation of proceedings.

The court also denied the applicant's request to amend his application to include earlier privilege restrictions.

The applicants sought elevated costs as public interest litigants after successfully challenging the constitutional validity of s. 17 of the Crown Liability and Proceedings Act, 2019.

The court applied the two-branch test from Carter v Canada (Attorney General), finding that the issue was not "truly exceptional" with "widespread societal impact" comparable to Carter, nor did the applicants lack a personal pecuniary interest given the link to their underlying damages claim.

The court also noted the applicants had pursued the litigation with private funding.

Consequently, the request for elevated costs was denied, and costs were awarded on a partial indemnity basis as conceded by the respondents.

The defendant, Kyle Hughes, brought a disclosure application in a criminal case involving child pornography charges, seeking technical information about automated law enforcement software (Torrential Downpour and Torrential Downpour Receptor) used to investigate his IP address.

The application sought operational copies, source codes, user manuals, training materials, and changelogs to challenge software functionality, potential Charter breaches (s. 8), and the sufficiency of grounds for a search warrant.

The Crown resisted, arguing irrelevance, lack of possession/control, and privilege.

The court ruled that user manuals and changelogs for the software are "obviously relevant" first-party disclosure, subject to privilege claims.

Operational copies of the software were deemed third-party disclosure, meeting the "likely relevant" threshold for a second-stage privilege assessment.

However, the court dismissed requests for source codes and training materials, finding them not "likely relevant" or "obviously relevant" respectively, and clarified that foreign agencies providing investigative leads are not part of the "investigating police force" for disclosure purposes.

The plaintiff sought to amend her statement of claim to correct a misnomer, substituting 'John Doe' with 'Dr. Hung-Tat Lo' as a defendant in a motor vehicle accident claim.

The court considered whether the proposed defendant would have objectively known the litigation was directed at him, applying the 'litigating finger' test.

Despite discrepancies in the pleaded facts and the proposed defendant's account, the court found that he would have recognized himself as the intended target.

The court also determined that the delay in bringing the motion was not inordinate or unexplained.

The motion to amend the statement of claim was granted.

The accused, J.A. (K.A.), brought two Charter applications under sections 10(b) (right to counsel) and 8 (unreasonable search or seizure) to exclude evidence in a human trafficking case.

The court found multiple violations of the right to counsel by police officers, including failure to facilitate contact with counsel of choice and failure to hold-off questioning.

However, applying the s. 24(2) Grant factors, the court determined that the evidence (false name, cellular telephone content) should not be excluded, as its admission would not bring the administration of justice into disrepute given the seriousness of the charges and the minimal impact on the accused's Charter interests.

The section 8 application regarding "red boots" was dismissed, as the court found no standing for the accused and no reliable evidence of police search or seizure.

Mitchel Yearley brought an application for certiorari to quash his committal to stand trial on one count of aggravated assault, arguing that the preliminary hearing judge exceeded jurisdiction due to insufficient evidence on identity and denied natural justice by not allowing submissions on committal.

The court found that the preliminary hearing judge committed jurisdictional error by failing to provide sufficient reasons for committal and that the in-dock identification alone was insufficient evidence for committal.

The application was granted, and the committal order was quashed.

The accused, Jeremiah Andre Reed, was charged with attempted murder (stabbing Grant Douglas) and breach of a probation order (possessing a weapon).

The Crown's case relied primarily on the complainant's testimony, which the court found credible and reliable despite minor inconsistencies and a criminal record, due to strong corroborating evidence and the complainant's direct involvement in the events.

The court found the identification of the accused to be highly reliable given the complainant's prior acquaintance with him and the circumstances of the attack and subsequent pursuit.

Direct evidence of the accused's intent to kill was found in his own words.

The accused was found guilty on both counts.

The father applied for a protective separation and sole decision-making authority to repair his relationship with his two children, alleging parental alienation by the mother.

The court found that the mother had engaged in alienating behaviours and failed to authentically support the children's relationship with their father.

The court ordered a 90-day protective separation during which the children will reside solely with the father and have no contact with the mother.

The father and children were ordered to participate in the Turning Points for Families intensive reunification program.

The mother's claim for unjust enrichment regarding the jointly owned home was dismissed, and various financial and child support orders were made.

The self-represented plaintiff, a tenant of the defendant, brought a motion for leave to issue a Certificate of Pending Litigation (CPL) against the defendant's property to prevent its impending sale.

The plaintiff claimed an entitlement to a portion of the sale proceeds based on an alleged agreement.

The court dismissed the motion, finding that the plaintiff's claim for monetary damages did not constitute a proprietary interest in the land, which is a prerequisite for a CPL.

Costs were awarded to the defendant on a partial indemnity basis in the amount of $17,606.64 due to the plaintiff's strategic attempt to thwart the sale.

The plaintiff, a 98-year-old woman, sued her daughters and son-in-law for the recovery of money alleged to have been loaned, which the defendants claimed was a gift.

During the trial, the court raised concerns about the plaintiff's capacity to instruct counsel and maintain the action, despite her counsel's assurances.

The court issued an interim order, declining to make a final determination on the merits until the Public Guardian and Trustee (PGT) has an opportunity to investigate the plaintiff's capacity and provide submissions on appropriate next steps.

The applicant brought a consent motion to transfer a commercial lease application from Brampton to Toronto to be heard with a companion application.

The sole reason for the requested transfer was to secure an earlier hearing date, as the parties were dissatisfied with the dates available in Brampton.

The court dismissed the motion, finding that the desire for an earlier hearing date does not justify transferring a proceeding to a jurisdiction with no connection to the matter, as doing so would inappropriately use other regions to arbitrage court schedules.

The applicant sought partition and sale of a property that was the primary residence of her late mother, forming part of the mother's estate.

The respondent, the estate's executrix and trustee, resided in the property rent-free, refusing to sell it despite a will provision requiring sale within two years of death.

The court dismissed the application, finding the applicant lacked standing under the Partition Act as she only had a contingent interest in the estate's residue, not immediate possession of the property.

The court clarified that the Estates Administration Act does not automatically vest property in beneficiaries if the will grants the trustee discretion over sale, and the will's specific direction for sale after two years did not grant immediate possession of the property itself, only the sale proceeds.

The dismissal was without prejudice to the applicant seeking relief under the Trustee Act for removal and replacement of the trustee.

This motion, brought by SPay Inc., sought to stay a claim by Mundo Media Ltd.'s court-appointed Receiver, arguing the dispute should proceed via arbitration in New York as per their contracts.

The Receiver claimed SPay owed Mundo $4.1 million, while SPay intended to assert a set-off.

The court declined to follow the British Columbia Court of Appeal's reasoning in Petrowest Corporation v. Peace River Hydro Partners regarding a receiver's ability to disclaim arbitration clauses.

Instead, the court applied the "single proceeding model" in insolvency, finding that SPay was not a "stranger to the bankruptcy" due to the significant receivable and SPay's intention to assert a set-off.

The court held that justice and practicality demanded the claims be resolved within the Ontario receivership proceedings, rendering the arbitration agreement inoperative under Article 8(1) of the UNCITRAL Model Law.

The motion for a stay was dismissed, and costs were awarded to the Receiver.

This endorsement addresses the sentencing of an offender convicted of 10 counts of first-degree murder and 16 counts of attempted murder.

Due to a pending Supreme Court of Canada decision on the constitutionality of consecutive parole ineligibility periods under s. 745.51 of the Criminal Code, the court, with agreement from all counsel, decided to proceed with the evidentiary portion of the sentencing hearing and impose the mandatory life sentence for one count of first-degree murder.

The sentencing for the remaining counts will be adjourned until the Supreme Court of Canada releases its decision in R. v. Bissonnette.

The court also deemed it appropriate to transfer the offender to a federal penitentiary.

The plaintiff, Deirdre Moore, brought an action in Ontario against Dr. Paule Kemgni (a Quebec-based psychiatrist) and Jonathan Kiska (an Ontario resident).

Dr. Kemgni moved to stay the action against her, arguing that Ontario lacked jurisdiction or was not the proper forum.

The court applied the "real and substantial connection" test from Club Resorts Ltd. v. Van Breda.

It found that none of the presumptive connecting factors applied to Dr. Kemgni, as her professional activities and the alleged tortious conduct occurred entirely in Quebec, and the damages claimed from her were separate from those claimed against the Ontario-resident co-defendant.

The court distinguished Cesario v. Gondek, noting that the plaintiff's pleadings did not allege joint tortfeasors or inseparable damages.

Consequently, Ontario was found to lack jurisdiction over the action against Dr. Kemgni, and the action against her was stayed.

The court also briefly addressed forum non conveniens, concluding that Quebec would be the more appropriate forum due to the location of the defendant, her practice, applicable law, and witnesses.

This endorsement from a trial readiness conference outlines the outstanding issues for the second phase of a bifurcated trial.

The court clarified that a previous 2021 valuation of the home farm was for settlement purposes only and would not govern compensation, and confirmed that the order refusing the sale of the home farm was a final order not to be re-litigated.

The endorsement also set deadlines for disclosure and undertakings motions, identified remaining trial issues including valuation of farm equipment, equalization, support claims, and trust claims, and scheduled further conferences and trial dates.

The applicants sought specific performance of an agreement of purchase and sale for a residential property, punitive damages, or in the alternative, relief from forfeiture and return of their $50,000 deposit.

The respondents terminated the agreement after the applicants' financing fell through and they requested an extension of the closing date.

The court found that the termination was due to the applicants' inability to close, not merely their request for an extension.

The court dismissed the application, finding no improper termination, no bad faith by the respondents, and no unconscionability in the respondents retaining the deposit, despite reselling the property for a higher price.

The plaintiffs, The Calbot Group Ltd. and 2649106 Ontario Inc. cob Synergy Capital, brought two motions: a Preservation Motion seeking to secure $5 million from land sale proceeds and a Jurisdiction Motion against certain foreign defendants.

The court first addressed the Jurisdiction Motion, finding that the plaintiffs failed to establish a real and substantial connection between the foreign defendants (NSR Canada Development Limited, New Silk Road Culturaltainment Ltd., and Sha Huang aka Sam Huang) and Ontario, as the alleged contract (MOU or verbal agreement) was not genuine and the corporate veil could not be pierced.

Consequently, the action against these foreign defendants and Mr. Huang was stayed.

The Preservation Motion, seeking relief under Rule 45.02, a Certificate of Pending Litigation (CPL), or Mareva injunction, was also dismissed.

The court found that the plaintiffs' claim was for damages, not a specific fund, and they failed to demonstrate a serious prospect of success or meet the stringent requirements for such remedies.

Costs were awarded to the successful defendants.

The applicant, A.B., brought a motion seeking orders for substitute service of her application materials on the respondent, C.D., by email, and for the anonymization of the names of the parties and their children in the court file.

A.B. alleged C.D. was involved in a multi-million-dollar fraud, leading to threats against her and the children, and C.D.'s whereabouts were unknown.

The court granted both requests, finding substitute service appropriate given C.D.'s evasion and anonymization necessary to protect the family from physical and psychological harm, balancing it against the open court principle.

Costs were awarded to the applicant for the substitute service portion of the motion.

The parties, married in 2005 and separated in 2018, proceeded to trial to resolve issues of divorce, child support, parenting orders, and equalization of net family property.

The case involved three children, two of whom were teenagers with mental health challenges who expressed preferences for autonomy in parenting time.

The court addressed the applicant father's request for shared decision-making and parenting time for all children, the respondent mother's request for spousal support, and the determination of child support.

The court ordered shared decision-making responsibility for all children, primary residence with the mother, and granted the older children autonomy regarding time with the father.

The youngest child's week-about schedule continued, with a request for an updated Voice of the Child Report.

Child support was maintained at the previously imputed income level, and spousal support was denied due to insufficient evidentiary support.