SCJ 2022

The plaintiff brought a motion for particulars regarding allegations of fraud and breach of fiduciary duty in the defendants' counterclaim.

In support, the plaintiff filed an affidavit stating he had no knowledge of the allegations.

The defendants sought to cross-examine the plaintiff on his affidavit, which the plaintiff resisted as an abuse of process and premature discovery.

The court held that while there is a prima facie right to cross-examine on an affidavit, the court has discretion to limit it to prevent a fishing expedition.

The court permitted the cross-examination but strictly limited its scope to the plaintiff's knowledge of the particulars sought.

The applicant father brought an application under the Hague Convention for the return of the parties' child to Cyprus.

The respondent mother had travelled to Canada with the child for what the father claimed was a one-month vacation, but she retained the child in Canada, alleging the father consented to a permanent move and that returning the child would expose him to a grave risk of harm due to domestic violence.

The court found the child's habitual residence was Cyprus and that the father did not consent to a permanent relocation.

The court rejected the mother's allegations of domestic violence, finding her evidence lacked credibility and detail, and concluded the Article 13(b) grave risk exception was not met.

The child was ordered returned to Cyprus.

The accused, charged with sexual assault against his former spouse, sought directions on whether affidavits filed by the complainant in their family law proceedings constituted 'records' under s. 278.1 of the Criminal Code.

The Crown argued the affidavits contained personal information and required scrutiny under the s. 278 regime.

The court held that the affidavits were not records, as they were voluntarily filed in public adversarial proceedings, meaning the complainant had no reasonable expectation of privacy in them.

Consequently, a s. 278.93 application was not required for their use.

The plaintiff brought an uncontested trial for default judgment against the defendant for defamation and the tort of placing her in a false light, arising from videos posted on social media.

The court found that while the defamation claim failed due to lack of evidence of publication on WhatsApp, the plaintiff established liability for the false light tort because it was reasonably foreseeable the false videos would be shared.

The court awarded the plaintiff $5,000 in general damages and $30,390 in special damages for lost income, plus substantial indemnity costs.

The Receiver sought costs of a contempt motion against the respondent on a full indemnity basis.

The respondent had been found in civil contempt for breaching an appointment order and sentenced to 30 days' imprisonment.

The court awarded costs on a full indemnity basis, finding the respondent's conduct egregious and highly disrespectful to the court and its appointed officer.

The quantum was fixed at $563,485, with a minor reduction for time spent on irrelevant facts.

The plaintiffs' motion for interlocutory injunctive relief and a certificate of pending litigation was dismissed.

The defendants and non-party Project Companies sought costs.

The plaintiffs opposed an award of costs or argued for a reduced amount, but failed to provide their own costs outline.

The court rejected the plaintiffs' arguments to deny costs or defer them to the trial judge.

Applying the principle that an attack on costs without providing one's own dockets is an 'attack in the air,' the court found the claimed amounts reasonable and awarded partial indemnity costs of $65,000 to the defendants and $39,000 to the Project Companies.

The applicant father and respondent mother separated after a six-year marriage characterized by family violence perpetrated by the applicant.

The applicant sought joint decision-making and equal parenting time, while the respondent sought sole decision-making and primary residence.

The court found that the applicant engaged in a pattern of coercive and controlling behaviour, making joint decision-making impossible.

The court awarded sole decision-making and primary residence to the respondent, with the applicant having alternating weekend parenting time.

The court also determined the date of separation to be May 23, 2020, and ordered the applicant to pay equalization, retroactive and ongoing child and spousal support, and proportionate section 7 expenses.

The court declined to admit surreptitious recordings made by the applicant.

The applicant brought motions for contempt and further disclosure against the respondent in a family law proceeding.

The court found the respondent in contempt of two previous preservation orders for selling a boat slip and placing a new mortgage on a property without notice.

The court also ordered the respondent to pay the costs of a forensic audit due to his false assertions about having no assets at the time of separation, and made comprehensive orders for further disclosure of corporate and trust records.

Following the dismissal of the plaintiff's claim at trial, the successful defendants sought substantial indemnity costs.

The plaintiff conceded that substantial indemnity costs were warranted due to unsuccessful fraud allegations but disputed the quantum and whether the litigation administrator should be personally liable.

The court fixed costs at $45,000 for the Jolicouers and $55,000 for Debra.

The court ordered the litigation administrator to be personally liable for 67% of the costs, representing the portion incurred after the deceased's death when she continued the litigation for her own benefit, with the estate liable for the remaining 33%.

The applicant landlord sought overholding rent, damages to the premises, and unpaid water bills from the respondent tenant after the tenant failed to renew its commercial lease and eventually vacated the premises.

The court found it would be inequitable to enforce the full overholding rent provision due to delays in the court process, and ordered a reduced amount.

The court also awarded partial damages for repairs to the premises, dismissing claims that were unproven or already addressed by the tenant.

The tenant conceded liability for the water arrears.

Judgment was issued in favour of the landlord for $82,293.69.

The plaintiff obtained an ex parte order against Facebook, Inc. that validated service and granted Norwich, take-down, and refraining relief regarding allegedly defamatory posts.

Facebook moved to set aside the order under Rule 37.14, arguing it was not properly served and the plaintiff failed to make full and frank disclosure.

The court agreed, finding that service via Facebook's 'Report Post Portal' was invalid and the plaintiff failed to provide sufficient evidence to establish a bona fide claim for defamation, copyright infringement, or cyberbullying.

The ex parte order was set aside, and the plaintiff's cross-motions for contempt and to examine Facebook's counsel were dismissed.

The plaintiff by counterclaim advanced $465,000 to the defendant religious corporation based on verbal assurances from its spiritual leader that the funds would be repaid after a new gurdwara was constructed.

The corporation argued the payments were either donations or statute-barred loans.

The court found the payments were not donations and no valid loan agreement existed, establishing unjust enrichment.

Although the claimant sought a remedial constructive trust, the court held a monetary award was sufficient.

Applying McConnell v. Huxtable, the court ruled the alternative claim for monetary restitution was protected by the 10-year limitation period under the Real Property Limitations Act, as the proprietary claim was viable and not an abuse of process.

The corporation was ordered to pay $465,000 in damages.

The Monitor in the CCAA proceedings of Nortel Networks Corporation brought an unopposed motion for approval of its fees and disbursements, as well as those of its counsel, for the period of November 1, 2021, to October 31, 2022.

The court applied the overriding principle of reasonableness and considered the significant results achieved by the Monitor, including completing a $38 million distribution and recovering an additional $21 million.

Finding the fees fair and reasonable, the court granted the motion and approved the accounts.

The applicants, elderly parents, sought an order vesting title to a residential property registered in their daughter's name, claiming a purchase money resulting trust, bare trust, or constructive trust.

The property was purchased by their son, who later gifted it to the daughter.

The parents claimed they had paid for a previous property whose sale proceeds funded the current one, and that they contributed to upkeep.

The court dismissed the application, finding insufficient evidence that the parents contributed to the purchase price, no written agreement or certainty of intention for a bare trust, and no unjust enrichment to support a constructive trust, as the parents had lived rent-free in the properties for years.

The applicant mother sought sole decision-making authority and primary residence of the two children, with the respondent father's parenting time limited to the status quo.

The father sought parallel decision-making and a shared parenting schedule.

The court found that the parties had a high-conflict relationship and that the mother's judgment was impacted by her negative view of the father, including unsubstantiated allegations of sexual abuse.

Relying on the recommendations of a court-appointed assessor, the court ordered parallel decision-making, granting the father authority over health decisions and the mother authority over education and dental decisions.

The court also expanded the father's parenting time to include alternating weekends and every Wednesday overnight.

The Crown applied for an order permitting six witnesses to testify by videoconference at the accused's fraud trial.

Three witnesses resided in the United States and three resided in Canada outside Ontario.

The accused opposed the application for one US witness on the basis of solicitor-client privilege, and opposed the Canadian witnesses on the basis of credibility and memory issues.

The court granted the application, finding that privilege issues should be dealt with separately and that credibility issues could be assessed equally well over video.

The court concluded the statutory tests under ss. 714.1 and 714.2 of the Criminal Code were met.

The defendants brought a motion to exclude a SPECT scan from being shown to the jury by the plaintiff's expert neurologist, arguing it was novel science and unreliable for diagnosing a mild traumatic brain injury.

The court dismissed the motion, distinguishing this case from previous decisions where SPECT scans were used as the sole diagnostic tool by a nuclear medicine specialist.

The court permitted the clinical neurologist to refer to the SPECT scan because it was used as one of many diagnostic tools to confirm a clinical diagnosis, and the nuclear medicine specialist's opinions were redacted to prevent undue influence on the jury.

The applicant, sought for extradition to the United States for alleged tax fraud, brought an application for the presiding judge to recuse himself.

The recusal application was based on a reasonable apprehension of bias arising after the Crown provided the court with ex parte information concerning public safety and public interest privilege.

The judge appointed amicus curiae to represent the applicant's interests during a closed hearing to determine disclosure of the information.

The judge dismissed the recusal application, finding that the procedures adopted balanced the competing interests and ensured fundamental fairness, such that an informed person would not conclude there was a reasonable apprehension of bias.

The defendants brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's action, arguing it was a SLAPP intended to silence their complaints about the plaintiff selling defective products and violating privacy laws.

The plaintiff's action alleged the defendants perpetrated a fraudulent scheme involving false repair receipts.

The court dismissed the motion, finding the defendants failed to meet the threshold burden under s. 137.1(3) because the plaintiff's claim was grounded in fraud, not in any expressions made by the defendants.

Costs were awarded to the plaintiff.

The parties participated in a binding judicial dispute resolution (JDR) process to resolve outstanding parenting issues regarding their eight-year-old child.

The JDR process, a pilot program in the Kitchener Unified Family Court, allowed the parties to settle most issues on consent.

The court adjudicated the remaining narrow issues, including the financial implications of major decision-making, exchange locations, and attendance at extra-curricular activities, focusing on minimizing the child's exposure to conflict.