SCJ 2022

The defendant lawyer brought a motion to strike out the plaintiffs' statement of claim alleging professional negligence in his representation of the plaintiff dentist during a regulatory discipline proceeding.

The defendant argued the claim was incapable of proof due to the absolute prohibition on admitting discipline proceeding records in civil actions under s. 36(3) of the Regulated Health Professions Act.

The court dismissed the motion, finding the defendant required leave to bring the motion due to delay and having taken a fresh step by filing a statement of defence, and denied leave.

The court further noted that even if leave were granted, the claim would not be struck as the plaintiffs might prove their case using other admissible evidence, such as patient records and admissions in the pleadings.

Following the successful certification of a class proceeding arising from a residential high-rise fire, the court determined the costs of the certification motion.

The plaintiffs sought over $435,000 in costs from the defendant, while the third parties sought their costs from the plaintiffs.

Applying the Pearson factors, the court awarded the plaintiffs $348,056.04 in costs against the defendant.

The court also found that the plaintiffs had drawn the third parties into the certification motion by amending the common issues, and ordered the plaintiffs to pay $45,200 in costs to the third parties.

The defendants sought costs on a substantial indemnity basis after successfully defending a motion to extend an interim injunction.

The court declined to award costs immediately, exercising its discretion to defer costs to the cause.

The court reasoned that the defendants might ultimately be found liable at trial for serious breaches of fiduciary duty and unfair competition, making an immediate costs award inappropriate.

The court also noted the defendants violated formatting rules by submitting single-spaced materials to circumvent page limits.

The applicant, Royal Fox Gold Inc., sought court approval for a plan of arrangement with Northern Superior Resources Inc. under section 182 of the Business Corporations Act.

The court considered whether statutory procedures were met, the application was in good faith, and the arrangement was fair and reasonable, applying the test from *Re Magna International Inc.* and *BCE Inc. v. 1976 Debentureholders*.

The arrangement, which involved an exchange of shares and contingent value rights, received overwhelming shareholder approval.

The court found all requirements satisfied and granted the final approval order.

The respondent law firm brought a motion to quash a Registrar's Order for Delivery and Assessment obtained by its former client.

The client had certified in a requisition that he had requested the firm's accounts but had not received them.

The court found that the firm had in fact delivered all accounts to the client at or about the dates they were rendered.

Because the requisition was factually incorrect, the court quashed the Registrar's Order, without prejudice to the client bringing an Application for an order directing the assessment of the accounts under section 4 of the Solicitors Act.

The respondent brought a motion seeking costs, emotional hardship damages, and the dismissal of the applicant's requests to enforce family arbitration costs awards.

The court noted the high-conflict nature of the proceedings and the parties' failure to comply with practice directions.

The applicant conceded that the arbitration costs awards were satisfied by a set-off of section 7 expenses.

The court deferred the issue of costs for written submissions and directed a process to resolve ongoing disputes over the applicant's financial disclosure before allowing his Motion to Change to proceed.

The plaintiffs moved for a Certificate of Pending Litigation (CPL) against a 108-acre parcel of land.

The plaintiff had agreed to purchase five acres of the land from one of the co-owners for $750,000 and advanced $640,000 before the defendant purported to terminate the agreement.

The defendant argued the agreement was unenforceable under the Statute of Frauds and the Planning Act.

The court found a triable issue regarding the plaintiffs' interest in the land and held that the equities favoured granting the CPL, as the property was unique and the plaintiffs had advanced 85% of the purchase price.

The defendants moved to strike the plaintiffs' $20 million claim arising from the revocation of the plaintiff's aviation delegation.

The court struck the claims for conspiracy, breach of contract, injurious falsehood, negligence, wrongful dismissal, and intentional interference with contractual relations for failing to plead necessary elements, but granted leave to amend.

The court declined to strike the claim for misfeasance in public office, finding it adequately pleaded, and dismissed the defendants' motion to strike portions of the claim as scandalous or an abuse of process.

The defendant contractor in a construction lien action brought a motion for security for costs against the corporate plaintiff.

The court first granted leave to bring the motion under s. 67(2) of the Construction Lien Act, finding it necessary to 'even the playing field' as the plaintiff lacked sufficient assets in Ontario.

Applying the framework for security for costs, the court found the plaintiff failed to provide full financial disclosure to establish impecuniosity and failed to demonstrate a good chance of success on the merits.

The motion was granted, and the plaintiff was ordered to post security for costs in installments totaling $77,500.

The applicant, a 61-year-old senior draftsperson with 3.5 years of service, was terminated without cause.

The employer relied on a termination clause in the employment agreement to limit his entitlements.

The court applied the Waksdale framework, finding the 'for cause' provision violated the Employment Standards Act by contracting out of the statutory 'wilful misconduct' standard, thereby rendering all termination provisions void.

The court awarded 6 months of common law reasonable notice based on the Bardal factors and dismissed the employer's argument that the applicant failed to mitigate his damages.

The applicant wife brought a motion seeking financial disclosure and a valuation of the respondent husband's interest in a corporation as of the date of separation.

The husband argued the asset was excluded property gifted by his father and that a formal valuation was disproportionate to its value, which he claimed was equal to the dividends he received.

The court held that the husband had the onus to provide credible evidence of the asset's value and ordered him to retain a Chartered Business Valuator at his own expense, noting that the issue of whether the asset was excluded remained in dispute.

The applicant moved for a temporary order for spousal support following the breakdown of a 30-year traditional marriage.

The respondent opposed the motion, arguing the applicant suffered no economic disadvantage and failed to mitigate expenses by selling the matrimonial home.

The court found the applicant entitled to support on a non-compensatory and compensatory basis under the Family Law Act.

The court ordered the respondent to pay temporary spousal support at the high end of the Spousal Support Advisory Guidelines range ($2,568 per month) until the matrimonial home is sold, after which support will reduce to the mid-range amount ($2,297 per month).

The accused, an off-duty police officer, was involved in a motor vehicle collision where his SUV crossed the centre line and struck an oncoming motorcycle, causing the rider to lose his leg.

The accused drove nearly four kilometres away from the scene before stopping and did not call 911.

At trial, the court acquitted the accused of impaired driving causing bodily harm and dangerous driving causing bodily harm, finding the Crown failed to prove impairment beyond a reasonable doubt and failed to rule out a sudden tire blowout or mechanical failure.

However, the court convicted the accused of failing to stop after an accident, rejecting the defence that a concussion rendered his actions non-volitional or negated his intent to flee.

The plaintiff advanced two loans to the corporate defendant for construction projects.

The first loan was secured by a collateral mortgage on the personal defendants' residence.

The plaintiff alleged the second loan was also secured by the same mortgage via an oral agreement, and sought summary judgment for outstanding amounts including a profit-sharing agreement.

The defendants argued the second advance was an unsecured joint venture investment and brought a motion to discharge the mortgage upon paying the remaining interest on the first loan into court.

The court dismissed both motions, finding that significant credibility issues regarding the nature of the second advance and the alleged oral agreement required a full trial.

The four applicant defendants, charged with multiple residential break and enters, brought pre-trial Charter applications alleging violations of their rights under ss. 8, 9, 10(a), and 10(b).

They challenged the lawfulness of their arrests, the subsequent searches, the promptness and language of their arrest notifications, and the implementation of their right to counsel.

One applicant also alleged a s. 8 breach regarding video surveillance in his holding cell.

The Superior Court of Justice dismissed the applications, finding that police had reasonable grounds for the arrests and that the searches were lawful.

While the court found a s. 10(b) implementation breach for two applicants due to unexplained delays in contacting counsel, it declined to exclude the seized clothing under s. 24(2) of the Charter.

The appellant appealed her summary conviction for having care or control of a motor vehicle while impaired.

She was found intoxicated in the driver's seat of her running vehicle after an argument with her boyfriend.

The trial judge found she failed to rebut the presumption of operation and that there was a realistic risk she would set the vehicle in motion.

On appeal, the appellant argued the trial judge engaged in speculative reasoning and misapprehended the evidence.

The Superior Court of Justice dismissed the appeal, finding the trial judge's inferences were reasonable, grounded in the evidence, and that the reasons for judgment were adequate.

The moving respondents sought confirmation of an associate justice’s report on a long-running accounting reference arising from oil well joint venture litigation spanning Ontario, British Columbia, and Alberta, and also sought to vary an earlier order requiring them to bear the costs of the reference.

The court applied the appellate-style standard of review governing confirmation of a referee’s report and held that the responding applicants failed to establish any error in principle, jurisdictional error, patent misapprehension of the evidence, or reviewable legal error.

The court upheld the associate justice’s reliance on a jointly selected neutral expert, the credibility findings made against the self-represented responding party, and the conclusion that the 500% cash-call clause in the EWA joint venture agreement was an enforceable contractual term rather than an unenforceable penalty.

The report was confirmed, the motion to vary the prior costs order was dismissed, and the responding applicants were denied costs of the accounting reference and of the motion.

The Mizrahi Defendants brought a motion to dismiss or stay the plaintiff's action based on a standstill provision in a Priority, Subordination and Standstill Agreement.

The plaintiff, a subordinated lender for a construction project, sued for $200 million in damages and other relief.

The court found that the plaintiff's claims fell squarely within the standstill provision, which prohibited enforcement actions until senior lenders were repaid.

The court rejected the plaintiff's argument that the enforceability of the agreement was in play, as it was not pleaded.

The action was stayed for 30 days to allow the plaintiff to draft a new statement of claim for claims not covered by the standstill provision, after which the action would be dismissed.

The offender, a 29-year-old first offender, pleaded guilty to two counts of trafficking in carfentanil.

One of the sales resulted in the overdose death of the purchaser.

The court considered the lethal nature of carfentanil and the offender's profit motive as aggravating factors, balanced against his guilty plea, genuine remorse, and restrictive bail conditions.

The court accepted the joint submission and sentenced the offender to four years in prison, less 12 days of pre-sentence custody credit.

The respondents brought a motion to stay the applicant's oppression application, arguing the dispute was subject to arbitration clauses in the parties' unanimous shareholders' agreement and partnership agreement.

The applicant argued the dispute arose solely under a separate control agreement that lacked an arbitration clause.

Applying the competence-competence principle, the court found an arguable case that the dispute fell within the scope of the arbitration agreements and granted the stay, referring the matter to an arbitral tribunal to determine its jurisdiction.