SCJ 2022

The court heard three service and pleadings-related motions in a complex fraud action.

The defendant Mark Gross successfully moved to set aside a prior ex parte order validating service on him, arguing the claims against him were intertwined with insolvent corporate defendants and should be addressed in commercial list insolvency proceedings.

Three numbered company defendants successfully moved to set aside their noting in default, as they had not been given notice of the default proceedings while a motion to validate service on them was pending.

The plaintiffs' motion to validate service was granted for the numbered companies and one individual defendant who had actual notice, but dismissed regarding other defendants due to insufficient evidence of notice or efforts to serve.

The applicant moved to be appointed as litigation guardian and guardian of property for her sister, the respondent, in the context of an underlying application regarding the ownership of a shared property.

The respondent was assessed by a designated capacity assessor and found incapable of managing property and highly susceptible to undue influence.

The court found that the respondent required a litigation guardian and a guardian of property.

Due to severe family acrimony and conflicts of interest among the siblings regarding the property dispute, the court declined to appoint any family member.

Instead, the court appointed the Public Guardian and Trustee as both litigation guardian and guardian of property.

The defendants brought a motion for leave under the Construction Act to seek security for costs against the plaintiff.

The plaintiff had sued for unpaid invoices and lost profits after the defendants terminated a construction contract due to a loss of financing.

The court found good reason to believe the plaintiff, a formerly dormant shell corporation with no apparent assets, had insufficient assets in Ontario to pay a costs award.

The plaintiff failed to demonstrate sufficient assets or that its claim had a good chance of success.

The court granted leave and ordered the plaintiff to post $201,765.54 as security for costs, staying the action until payment.

The parties have been engaged in ongoing litigation regarding a commercial lease.

The tenant and its principal brought a motion under Rule 59.06 to introduce fresh evidence, alleging the landlord fraudulently omitted pre-lease emails that would have altered prior court decisions regarding rent arrears and construction allowances.

The landlord brought a motion to terminate the lease for non-payment of rent.

The court dismissed the tenant's motion, finding the proposed fresh evidence inadmissible as it constituted pre-contractual negotiations that did not clearly contradict the landlord's evidence or the final lease terms.

The court granted the landlord's motion to terminate the lease due to the tenant's ongoing default, but stayed the termination pending a companion oppression application, conditional on the payment of ongoing rent into trust.

Two related applications were brought to determine the priority and validity of $283,508.64 in disputed fees claimed by the first mortgagees following a power of sale.

The second mortgagee argued the fees were not part of the first mortgage and violated s. 8(1) of the Interest Act.

The court held that the forbearance agreement containing the fees did not form part of the first mortgage and could not be enforced in priority to the second mortgage.

Furthermore, the court found the default and prepayment fees constituted unenforceable penalties under s. 8(1) of the Interest Act, meaning they could not be claimed against the mortgagor or guarantor either.

Following the settlement of a motor vehicle accident tort claim for $100,000, the parties disputed the plaintiff's entitlement to costs.

The plaintiff sought costs of the action as well as 'Cadieux costs'—the costs incurred in recovering collateral benefits from her disability insurer, automobile insurer, and the Canada Pension Plan, which reduced her tort claim.

The defendant argued that legislative changes giving the Licence Appeal Tribunal exclusive jurisdiction over benefit disputes precluded the court from awarding such costs, and that Cadieux costs could not be awarded where an action settles before trial.

The court rejected these arguments, finding it retained jurisdiction to award costs incidental to the recovery of benefits that benefitted the tortfeasor.

The court awarded the plaintiff $90,000 in total costs, including $30,000 in Cadieux costs.

The applicant brought a motion to set aside a Russian divorce order obtained by the respondent shortly after their separation.

The parties had immigrated to Canada in 2018.

The respondent filed for divorce in Russia three days after leaving the matrimonial home in Ontario, knowing that Russian law would not require him to pay spousal support.

The court found that the respondent preemptively sought the foreign divorce to circumvent his spousal support obligations under Ontario law.

Applying the public policy exception, the court refused to recognize the Russian divorce order in Ontario.

The accused brought an application for a stay of proceedings, arguing his s. 11(b) Charter right to be tried within a reasonable time was infringed.

The total delay from the laying of charges to the anticipated end of trial was 50.5 months.

The court deducted 11 months of defence delay and 17.25 months of delay caused by the COVID-19 pandemic as discrete exceptional events.

The resulting net delay was 22.25 months, which fell below the 30-month Jordan ceiling for cases in the Superior Court.

The application was dismissed.

The plaintiff, an Ontario resident, sued the defendant, also an Ontario resident, for injuries sustained in a motor vehicle accident that occurred in Quebec.

The defendant brought a motion under Rule 21.01(1) to dismiss the action, arguing that Quebec law applied and barred the tort claim.

The court applied the choice of law rule from Tolofson v. Jensen, holding that the law of the place where the tort occurred (Quebec) governed the action.

Under Quebec's Automobile Insurance Act, tort actions for bodily injury from motor vehicle accidents are barred.

The motion was granted and the action was dismissed.

The defendants brought a motion to quash several summonses issued by the plaintiff to employees and a former employee of Georgian College.

The plaintiff sought to examine these witnesses in advance of her motion for a mandatory interlocutory injunction regarding a hiring process for an Associate Dean position.

The court quashed the summonses for the non-party witnesses, finding the request to be a fishing expedition that failed to meet the requirements of Rule 39.03.

However, the court permitted the examination of two named defendants, subject to the condition that they could not be examined again for discovery without leave of the court.

The wife brought a motion seeking the release of $500,000 from the net proceeds of the sale of the matrimonial home to pay her legal and accounting fees.

The husband opposed the release and brought a cross-motion seeking to dismiss the wife's motion for alleged non-compliance with prior orders, requesting alternate security for his equalization claim, and seeking further disclosure and costs thrown away for cancelled questioning.

The court found the wife was not in breach of prior orders and granted the release of $500,000, noting the husband had already received a significant advance from the proceeds.

The court declined to order the wife to pledge her RRSP due to tax consequences but issued a general preservation order over her assets.

The court also ordered the wife to provide further disclosure, fixed dates for questioning, and awarded the husband $2,000 for costs thrown away.

The accused, charged with sexual assault, brought an application seeking a declaration that text messages between himself and the complainant were not 'records' under section 278.1 of the Criminal Code.

The messages primarily involved the complainant asking the accused for money to purchase a property and expressing frustration.

Applying the framework from R. v. J.J., the court found that the messages did not contain highly sensitive personal information going to the complainant's biographical core.

The application was granted, and the court declared the text messages were not records.

The Crown brought an application under s. 486.2(2) of the Criminal Code seeking an order to allow the complainant to testify at trial by closed-circuit television (CCTV).

The accused opposed the application.

The court considered the factors under s. 486.2(3) and found that the complainant, a mature and articulate adult without disabilities, was capable of providing a full and candid account of the allegations in open court.

The court noted that the complainant had previously participated in family court proceedings with the accused in the same courtroom without incident.

The application was dismissed, with the court noting that pauses or breaks would be available to the complainant if needed during her testimony.

The plaintiff brought a motion for further documentary production from the defendant and from a non-party, her former employer AB Sciex Ltd. The plaintiff sought the defendant's unredacted bank statement to corroborate a past romantic relationship, which the defendant agreed to produce.

The plaintiff also sought HR records and video footage from the non-party employer relating to harassment complaints made by the defendant and the termination of her employment.

The court ordered the non-party to produce records of the harassment investigations and correspondence regarding the plaintiff's termination, finding them relevant to her claims of malicious prosecution and intentional infliction of mental distress, but dismissed the requests for other HR records and video footage.

The moving defendants brought a motion in writing to amend an earlier order that authorized substitute service of their statement of defence, crossclaim, and counterclaim on a co-defendant.

They sought to extend the time for service, believing it was necessary because the plaintiffs had already noted the co-defendant in default.

The court dismissed the motion as misconceived and unnecessary, clarifying that the relevant rules restrict delivery only if the moving defendants themselves had been noted in default, which had not occurred.

Valid service had already been effected under the terms of the original order.

The plaintiff and defendant brought cross-motions to compel answers to undertakings and refusals given during examinations for discovery in a wrongful dismissal action.

The plaintiff alleged she was induced to leave her previous employment of 26 years and that the defendant made material misrepresentations.

The court reviewed the disputed questions, applying the principles of relevance and proportionality.

The court ordered both parties to answer various questions, while finding some of the plaintiff's requests to the defendant overly broad.

Both parties were ordered to re-attend examinations for discovery to answer the compelled questions.

The moving party father brought a motion for a refraining order to enjoin the Director of the Family Responsibility Office from applying to suspend his passport due to child support arrears.

The moving party claimed he was unemployed and needed to travel to Algeria to visit his ill mother.

The court dismissed the motion, finding it had no discretion to interfere because the moving party had not entered into a payment plan or satisfied the Director that he was unable to pay the arrears.

Furthermore, the court noted that even if it had discretion, it would have denied the motion because the moving party did not come to court with clean hands, having prioritized discretionary expenses over child support.

The plaintiff brought an action claiming 100% beneficial ownership of a family property that had been transferred multiple times among family members and ultimately sold to a third-party corporation.

The plaintiff sought to set aside the sale as a fraudulent conveyance.

The court found that the plaintiff and his father were equal 50% beneficial owners of the property.

The court declined to set aside the sale, finding the third-party corporation was a bona fide purchaser for value without notice.

The court ordered the plaintiff's parents to pay him 50% of the net sale proceeds under a constructive trust.

All counterclaims were dismissed.

The parties brought cross-motions regarding parenting time for their five-year-old daughter.

The mother sought supervised access due to concerns about the father's past aggressive conduct and a recent incident resulting in criminal charges and a no-contact order.

The father sought a return to a previous schedule of unsupervised weekend overnights.

The court found that the father's past conduct raised concerns about aggression and ordered that his parenting time be supervised by the paternal grandparents every other weekend, without overnights, to ensure the child's safety and stability.

The applicant sought a Norwich order against two lawyers to obtain transactional information regarding real estate purchases and transfers involving a judgment debtor, in order to enforce a $369,072.61 judgment.

The respondents opposed the motion, arguing the applicant did not meet the test for a Norwich order and that the information was protected by solicitor-client privilege.

The court granted the Norwich order, finding that the applicant met the test and that the requested transactional information, such as the source of funds and true ownership of the properties, was not presumptively protected by solicitor-client privilege.

The court ordered the respondents to produce the non-privileged information and established a process for reviewing any specific claims of privilege.