SCJ 2022

The plaintiff's lawyer of record passed away, and his firm brought a motion to be removed from the record and for a charging order.

The motion was adjourned because adverse parties raised concerns about the plaintiff's capacity.

The court reviewed the legal framework for appointing a litigation guardian and ordering a capacity assessment under the Rules of Civil Procedure and the Courts of Justice Act.

The court directed the parties to consult and establish a framework to address the plaintiff's capacity before proceeding with the motion.

The applicant, charged with intimate partner violence, sought a bail variation under s. 520(1) of the Criminal Code to permit contact with his wife.

The Crown opposed the variation, arguing there was no material change in circumstances.

The Superior Court of Justice found that the applicant's new surety and voluntary counselling constituted a material change.

Balancing the need to protect the complainant with the secondary theme of family unity, the court allowed the variation, permitting contact with the complainant provided another adult is present, though cohabitation was not yet permitted.

During a personal injury jury trial involving a laceration and subsequent amputation, the court ruled on the permissible ranges of damages counsel could suggest to the jury.

The court also reversed an earlier ruling, deciding to ask the jury to specify the particulars of the defendant's negligence due to scant liability evidence.

Finally, the court granted the defendant's request for an adverse inference instruction regarding the plaintiff's failure to call treating health professionals, noting their evidence was material to causation and damages.

The applicant father brought Motions to Change seeking to terminate spousal support, reduce child support, and expand parenting time.

The respondent mother moved to strike the applicant's motions due to his persistent failure to pay support and comply with multiple financial disclosure orders.

The applicant also brought a cross-motion to find the respondent in contempt for allegedly failing to facilitate parenting time.

The court denied the applicant's request for a further adjournment, finding it would cause undue delay and prejudice.

The court granted the respondent's motion to strike the Motions to Change, finding the applicant's non-compliance with support and disclosure orders to be egregious and willful.

The court dismissed the applicant's contempt motion, relying on Voice of the Child reports indicating the children adamantly refused contact with the applicant due to his past conduct, and finding the respondent had made reasonable efforts to facilitate access.

Following the dismissal of the moving parties' motion for a certificate of pending litigation, both parties sought costs.

The moving parties argued they were substantially successful because the dismissal was conditional on an undertaking offered by the responding parties.

The court rejected this argument, noting the moving parties chose to proceed with the motion after the undertaking was offered.

The court awarded costs to the successful responding parties on a partial indemnity scale in the amount of $86,739.59.

The respondent father brought a motion to vary the interim parenting schedule to a 2-2-3 schedule.

The applicant mother brought a cross-motion to maintain the current schedule and requested an updated voice of the child report or the involvement of the Office of the Children's Lawyer.

The court reviewed a previous voice of the child report which indicated the children struggled with short transitions.

Finding that the status quo was not in the children's best interests, the court granted the father's motion to implement a 2-2-3 schedule to minimize transitions and dismissed the mother's request for further assessments.

The respondent father brought an urgent motion to determine where the parties' four-year-old child should attend Junior Kindergarten, as the parents were deadlocked.

The father sought enrollment at Hopewell Public School, where the older sibling attended, while the applicant mother proposed French language schools.

Noting the lack of adequate evidentiary record to determine the child's best educational interests, the court ordered the child to be enrolled at Hopewell Public School to break the stalemate and maintain the status quo until a final determination could be made.

The applicant sought a declaration of ownership over a narrow laneway behind its property, which remained registered in the name of an individual who purchased it in 1824.

The respondents, descendants of the original owner, opposed the application.

The court found that the applicant's predecessors in title had exercised open, exclusive, continuous, and peaceable possession of the laneway for over 75 years, effectively excluding the original owner and his heirs.

The court granted the declaration of possessory title in favour of the applicant.

The applicant brought a motion under Rule 25(19)(b) of the Family Law Rules to correct alleged mathematical errors in the court's previous decision regarding child and spousal support.

The court found that while it did not intend to gross-up the pre-tax income as the applicant suggested, it did make an inputting error in the DivorceMate software.

The court exercised its discretion to correct the error, resulting in adjusted monthly child support of $1,719 and spousal support of $2,478.

The court determined the payout of funds held in court from the sale of a Ferrari seized by a bailiff pursuant to a preservation order.

The bailiff sought $46,016.30 for storage fees.

The applicant argued the vehicles were improperly stored outdoors, causing damage.

The court found the bailiff was entitled to compensation but applied a 20% deduction for the improper storage of the Ferrari, awarding $36,810.88.

The court also ordered the respondent to pay $11,468.14 in interest on previously unpaid costs awards and $14,175.85 in substantial indemnity costs for a Rule 60 motion due to reprehensible conduct.

The parties entered into Agreements of Purchase and Sale where the applicants sold two apartment buildings to the respondent developer in exchange for cash and 100 rental units in the new condominium development.

The City of Toronto required a Section 111 Agreement imposing additional amenities and a shared entrance not contemplated in the original agreements.

The developer sought to have the applicants pay a proportionate share of the increased maintenance costs, control the leasing of the rental units, and retain interim rents before title transfer.

The court held that the applicants were only required to pay for amenities uniquely dedicated to the rental units or originally contemplated, that the applicants had the right to control leasing, and that the applicants were entitled to interim rents, as this aligned with the reasonable expectations of the parties and the commercial efficacy of the agreements.

Following a judge-alone criminal trial, the court convicted the accused of kidnapping, threatening conduct, sexual assault, breaching a no-contact order, uttering threats, attempting to obstruct justice, and intimidating a justice system participant, arising from intimate-partner violence, forced confinement, coerced drug ingestion, sexual activity obtained through fear, and subsequent jail calls to the complainant.

Applying the W.(D.) framework, the court found the complainant credible and reliable despite memory gaps on peripheral details, and rejected the accused’s denials on the material issues.

On the sexual assault count, the court applied the consent principles in Ewanchuk and held that any ostensible consent was vitiated by choking, threats, fear, and duress.

The accused was acquitted only on the count alleging administration of Ketamine with intent to endanger life or cause bodily harm because the Crown conceded the requisite mens rea was not proven.

The Crown appealed the respondent's acquittal on a charge of failing or refusing to comply with an approved screening device (ASD) demand.

The trial judge had dismissed the charge due to a reasonable doubt about whether the delay between the initial breath demand and the arrival of the ASD was reasonably necessary, rendering the demand unlawful.

On appeal, the Crown argued the trial judge erred by focusing on the initial demand rather than a second demand made when the ASD arrived, and by applying the immediacy requirement too rigidly.

The Superior Court of Justice dismissed the appeal, finding that the initial demand occasioned the detention and was the correct focus of the analysis, and that the trial judge made no error in concluding the Crown failed to prove the delay was reasonably necessary.

The applicant brought a motion for an interim order under section 192(4) of the Canada Business Corporations Act to call a special meeting of shareholders.

The meeting was to consider a plan of arrangement whereby the respondent would acquire all common shares of the applicant.

The court found the applicant was acting in good faith and met the statutory requirements.

The interim order was granted, authorizing the meeting and establishing notice and voting mechanics.

The appellant tenant sought leave to appeal and to set aside an arbitration award that determined the fair market base rent for a commercial lease renewal.

The court dismissed the application, finding no basis to set aside the award under section 46 of the Arbitration Act, as the arbitrator acted within his jurisdiction and the process was fair.

Furthermore, the court denied leave to appeal under section 45(1) because the appellant's grounds raised questions of mixed fact and law, primarily concerning contractual interpretation and factual findings, rather than extricable questions of law.

The defendants brought a motion for security for costs against the corporate plaintiff in an action arising from a commercial lease dispute.

The plaintiff conceded it had insufficient assets to pay a costs award but argued its claims had a good chance of success and its impoverishment was caused by the defendants' conduct.

The court found the merits could not be determined on an interlocutory basis due to disputed facts and credibility issues.

Applying a holistic approach, the court ordered the plaintiff to post security for costs in the amount of $30,000 for the corporate defendants and $15,000 for the real estate agent defendant, up to and including examinations for discovery.

In a pre-trial application in a sexual offence prosecution involving allegations by the accused's biological daughter, the Crown sought leave to adduce similar fact evidence from two other complainants alleging prior intrafamilial sexual abuse.

Applying the similar fact evidence framework, the court held there was no air of reality to alleged collusion or contamination among the witnesses.

The court found the proposed evidence had insufficient probative value on mens rea, context, and rebuttal of fabrication, but was highly probative on actus reus because of the unusual and aberrant nature of the alleged conduct and the significant similarities among the allegations.

The probative value on that issue outweighed the substantial prejudicial effect, and the evidence was admitted.

The accused, charged with second-degree murder, brought an application to exclude DNA and fingerprint evidence, arguing that police violated his s. 8 Charter rights by searching a public genetic genealogy database (GEDmatch) and seizing cast-off DNA without judicial authorization.

The court dismissed the application, finding the accused had no reasonable expectation of privacy in the public database search results.

Furthermore, applying horizontal stare decisis, the court held it was bound by prior decisions establishing that the seizure of discarded items for DNA analysis does not violate s. 8.

Following the dismissal of the plaintiffs' defamation action as a SLAPP suit under section 137.1 of the Courts of Justice Act, the successful defendants sought costs.

The court applied the presumption under section 137.1(7) that the defendants are entitled to full indemnity costs.

Finding the requested amount reasonable for a complex motion, the court awarded the defendants costs of $63,572.84 on a full indemnity basis.

The Children's Aid Society brought a motion for the production of police and medical records regarding the respondent parents in a child protection proceeding.

The parents consented to the release of police records but opposed the release of their medical records, citing significant privacy interests related to their complex medical care as transgender individuals.

The court dismissed the motion for medical records, finding no sufficient nexus between the Society's concerns about emotional health and the predominantly endocrinological treatment the parents received.

The court held that the parents' privacy interests and the need to maintain their therapeutic relationships outweighed the probative value of the records at this stage.