SCJ 2022

This motion for directions was brought by the Receiver of Unit 417 in a condominium project to determine whether the purchaser, Gerald Rasmussen, was entitled to clear title despite having prepaid the final balance of his purchase price directly to the developer, Brightstar, rather than into a deposit trust account.

The Guarantee Company of North America (GCNA), a secured creditor, opposed, arguing Rasmussen's payment was not bona fide and its mortgage should prevail.

The court found Rasmussen to be a bona fide purchaser for value, ruling that his payment, though structured as a loan, was the final purchase price payment under the agreement of purchase and sale.

The court determined that the APS did not prohibit direct payment to the vendor for the final balance and that GCNA's mortgage did not take priority over Rasmussen's interest.

The Receiver was directed to close Rasmussen's purchase and vest clear title in his name.

The Applicant brought a motion seeking permission to amend her application to include claims for constructive trust, intentional infliction of mental suffering and distress, and a restraining order against disseminating compromising videos/photographs.

She also sought an appraisal of an Australian property and further financial disclosure.

The Respondent opposed the motion, arguing delay, bad faith, and lack of merit for the new claims.

The court partially granted the motion, allowing the amendments, vacating the trial date, permitting the appraisal, and ordering specific financial disclosure, including intimate images and personal effects valuation.

The court found the proposed amendments tenable and necessary to avoid duplicative proceedings, despite the Applicant's delay.

The applicant mother sought divorce, primary parenting time, sole decision-making, child support, and special expenses in an uncontested trial.

The respondent father, residing in Tunisia, did not file an Answer but was permitted to cross-examine and make submissions.

The court granted the divorce, awarded primary parenting time and sole decision-making to the mother due to the father's residence in Tunisia, high conflict, and risk of retention.

The father's income was imputed at $100,000 CAD, and he was ordered to pay $1,471/month in child support and 53% of s.7 expenses.

Pre-judgment interest was denied, but post-judgment interest was allowed.

The father was also ordered to provide digital copies of family photos.

This ruling addresses a renewed severance application brought by David Obregon Castro, who, along with co-accused Sarai Lopez-Iglesias, is charged with First Degree Murder.

Both accused intend to present "cut-throat" defences, blaming the other for the victim's death.

The application for severance was renewed after a prior ruling allowed Ms. Lopez-Iglesias to admit evidence of Mr. Obregon Castro's prior discreditable conduct.

The court dismissed the severance application, reaffirming the presumption that jointly charged accused should be tried together, especially when antagonistic defences are present.

The judge found that a single trial would promote efficiency, the truth-seeking function, and reduce the risk of inconsistent verdicts, relying on the jury's ability to follow limiting instructions regarding the use of prior discreditable conduct evidence.

The defendant brought a motion to set aside a noting of default in a four-year-old mortgage action.

The plaintiff opposed, arguing the proposed defence lacked merit.

The court considered principles of proportionality and the preference for matters to be determined on their merits.

Given the plaintiff's significant delay in prosecuting the action after the defendant made a substantial payment, and the absence of demonstrated prejudice, the court granted the defendant's motion to set aside the noting of default, allowing the defendant to file a Statement of Defence.

The Ontario Superior Court of Justice considered a provisional order from British Columbia to vary a spousal support order.

The petitioner sought to terminate spousal support and cancel arrears due to retirement and reduced income.

The respondent agreed to termination from a later date but disputed the cancellation of all arrears.

The court found material changes in circumstances for both parties (retirement, increased income for respondent).

The court varied the original order, reducing spousal support from August 1, 2016, and terminating it as of April 2, 2019, and left the precise calculation of arrears to the Family Maintenance Enforcement Program based on the new support amounts.

The Attorney General of Canada brought a motion under Rule 21.01(1)(b) to strike two paragraphs from the Statement of Claim which sought wide-ranging non-monetary relief under s. 24(1) of the Canadian Charter of Rights and Freedoms.

The Attorney General argued that the court lacked jurisdiction to grant such relief as it would intrude on the executive branch's powers.

The plaintiff, Ebrahim Toure, contended the motion was procedurally incorrect and that his claims for Charter relief were not plain and obvious to fail.

The court dismissed the motion to strike, finding that Rule 21.01(1)(b) applies only to "causes of action" and not to "claims for relief" or "remedies." The court also granted the Attorney General an extension of time to file a statement of defence.

The Applicant Father (AF) brought a motion to enforce an alleged agreement reached through counsel to temporarily vary a child support order to $500 per month, retroactive to March 1, 2020.

The Respondent Mother (RM) opposed, arguing no agreement was reached and seeking to impute income to the AF.

The court applied the three-part test for settlement enforcement, finding a valid temporary "without prejudice" agreement was indeed reached.

The AF's motion to enforce the agreement was granted.

The court then addressed costs, significantly reducing the amount payable by the RM due to her circumstances, the children's best interests, and the death of her previous counsel.

The applicant, Centerra Gold Inc., sought a permanent injunction against its former director, Tengiz Bolturuk, for breaching his fiduciary duties and duty of confidentiality.

Bolturuk, nominated by the Kyrgyz Republic's state-owned corporation, was found to have secretly orchestrated the takeover of Centerra's Kumtor gold mine by the Kyrgyz Republic while still a director, disclosing confidential information and subsequently becoming the External Manager of the seized mine.

The court found that Bolturuk's actions constituted a clear usurpation of corporate opportunity and a flagrant breach of his duties, rejecting his justifications.

The court affirmed its jurisdiction over a former director for breaches stemming from their position and found damages to be an inadequate remedy.

Bolturuk's cross-motion to set aside an interim injunction was dismissed.

The permanent injunction was granted, and substantial indemnity costs were awarded against Bolturuk.

The plaintiff, SRK Woodworking Inc., brought a motion to amend its pleadings to add new parties (officers and directors of the defendant, Devlan Construction Ltd.) and to join a breach of trust claim with its existing construction lien action.

The court examined the transitional provisions of the Construction Act and the impact of the repeal of the former prohibition on joining trust claims with lien claims, as well as the re-location of the permissive joinder of breach of contract claims to a regulation.

The court found that the prompt payment and adjudication schemes of the new Act did not apply to this case, and therefore, there was no reason to prohibit the joinder of trust and lien claims.

The motion to add the new defendants and amend the Statement of Claim was granted.

The plaintiff sought an emergency interlocutory injunction against the defendants, who were involved in a protest causing severe noise disturbance in downtown Ottawa.

The defendants' counsel requested an adjournment, citing insufficient time to review extensive materials and prepare a proper defense.

The court, acknowledging the national importance of the matter and the need for a complete record to craft an enforceable *in persona* injunction, granted the adjournment until February 7, 2022.

The judge emphasized the inherent difficulty of framing an enforceable injunction against a large, fluid group of unnamed parties and the equitable requirement for certainty in such orders.

This decision addresses a motion and cross-motion for production of documents in a personal injury case.

The plaintiff sought production of defence medical expert files from Soma Medical Assessments and further documentation related to the defendants' surveillance evidence.

The defendants sought production of documents from the plaintiff's recently settled disability claim against Great West Life.

The court refused the request for Soma files, deeming it a fishing expedition and subject to litigation privilege.

However, it ordered the production of private investigator information, waiving litigation privilege due to significant privacy intrusion and public policy considerations.

The court also ordered the production of documents from the prior disability action, waiving the deemed undertaking rule given the similarity of issues and the insurer's non-opposition.

Costs were made costs in the cause.

In a first-degree murder trial, the defence brought a motion for a mistrial, alleging numerous instances of prosecutorial misconduct during the Crown's closing address to the jury.

The alleged errors included misstating evidence, introducing unelicited evidence, mocking defence counsel and witnesses, and improperly commenting on the burden of proof.

The court reviewed each alleged impropriety, finding some instances of improper conduct but concluding that, individually or cumulatively, they did not fatally wound the trial process or deprive the accused of a fair trial to the extent that a mistrial was warranted.

The motion was dismissed, with the court indicating that corrective instructions would be given to the jury.

This case indicates that the reasons for the decision are not available at this time.

This personal injury action concerned a slip and fall on an icy condominium roadway.

The plaintiff sued the condominium corporation and its snow removal contractor for negligence.

The contractor was deemed an occupier under the Occupiers' Liability Act.

The central issue was whether the contractor applied road salt in a sufficiently timely manner to prevent dangerous icy conditions.

The court found the contractor negligent for failing to apply road salt concurrently with or immediately after plowing, which led to the formation of a hazardous icy surface.

The contractor's operational system, which relied on the owner personally handling all salting for numerous properties, was identified as problematic and overstretched.

The court dismissed the defendants' claim of contributory negligence against the plaintiff and found the defendants liable for the plaintiff's injuries.

The Landlord sought leave to appeal an arbitration award concerning the rent reset for a 99-year ground lease, and alternatively, to set aside the award for excess of jurisdiction.

The arbitration tribunal had valued the "Demised Premises" at $63.3 million, while the Landlord argued for $95 million.

The court granted leave to appeal but dismissed the appeal, finding no error in the Majority's interpretation of the lease or its valuation mandate.

The court also dismissed the application to set aside the award, holding that the Landlord's arguments were an attempt to re-litigate the merits under the guise of a jurisdictional challenge.

This decision concerns a motion for certification of a class action following a fire in an apartment building.

The court addressed preliminary issues of jurisdiction (Superior Court vs. Landlord and Tenant Board), admissibility of an expert report, and the involvement of third parties.

The court found that the Superior Court had jurisdiction because the total amount claimed exceeded the LTB's monetary limit, even if individual claims might be smaller.

The expert report was deemed admissible for certification purposes.

The class action was certified, with modifications to the proposed class definition and common issues.

Specifically, the court removed references to "contractors" and "subcontractors" from common issues related to the Third Parties, as no direct cause of action was pleaded against them by the plaintiffs.

The court emphasized access to justice and behaviour modification as key factors favoring certification.

Guaranteed Funeral Deposits of Canada (Fraternal) applied to enforce its interpretation of an amending agreement with Assurant Life of Canada.

Assurant cross-applied for rescission of the agreement, alleging misrepresentation.

The court found that Guaranteed misled Assurant by misstating facts regarding the omission of a clause from the 2012 agreement, whether innocently or deliberately.

Assurant relied on this misrepresentation, which was material.

The court granted Assurant's cross-application for rescission, declaring the amending agreement void, and dismissed Guaranteed's application.

The Crown sought a pre-trial ruling on the admissibility of uncharged discreditable conduct evidence against the accused, A.N., who is charged with second-degree murder.

The evidence included A.N. selling marihuana to J.W. (the co-accused who testified for the Crown) on the days leading up to the homicide, and A.N.'s alleged participation in an earlier knifepoint robbery with J.W. The court ruled that evidence of marihuana sales was admissible as part of the narrative to explain the relationship and J.W.'s possession of the knife.

However, the court found the evidence of the earlier knifepoint robbery inadmissible, concluding its probative value was outweighed by its significant moral and reasoning prejudice, as it was not essential to the narrative and, if anything, tended to support the defence's position regarding mens rea.

The plaintiffs brought a motion for a status hearing to extend the deadline for setting their action down for trial, which was facing administrative dismissal for delay under Rule 48.14(1).

The significant delay of 3.5 years was attributed to a series of associate lawyers at the plaintiffs' firm failing to advance the file.

The defendants opposed the extension, arguing the explanation for delay was inadequate, but conceded they suffered no actual prejudice.

The court, applying the two-part test from Faris v. Eftimovski and considering its overriding discretion, found that despite the uncompelling explanation for counsel's delay, the action should proceed given the plaintiffs were not at fault and the defendants suffered no non-compensable prejudice.

The motion was granted, extending the deadline, and the plaintiffs were ordered to pay the defendants' costs.