SCJ 2022

Following the settlement of a class action regarding negligent dental services and infection risks, Class Counsel brought a motion for approval of an additional fee of $185,000 for administering the settlement.

The court noted that the claims process resulted in a recovery of $472,450 for class members and OHIP.

Finding that Class Counsel provided competent and diligent services and would experience a deficiency in payment compared to their billable rates, the court approved the additional fee.

The accused was charged with firearms offences after police searched his rental vehicle incident to an arrest for a two-year-old homicide.

The police found a loaded firearm in the vehicle.

The accused brought an application to exclude the evidence, arguing the search violated his s. 8 Charter rights.

The court found that the search was not truly incident to the arrest, as there were no valid safety concerns and no reasonable prospect of locating the homicide firearm in the vehicle two years later.

The court concluded that the police conduct was deliberate and routine, demonstrating a flagrant disregard for Charter rights.

The application was granted, and the firearm and other evidence were excluded under s. 24(2) of the Charter.

The self-represented plaintiff sought to note the defendant university in default and obtain default judgment, despite the defendant having counsel and a pending motion to strike the claim.

After the court deferred scheduling the plaintiff's motion, the plaintiff brought a further motion to set aside the deferral.

The court, on its own initiative under Rule 2.1.02, stayed the plaintiff's motion and issued a notice considering its dismissal as frivolous or an abuse of process, noting that default judgment is inappropriate when a defendant is actively participating.

The plaintiff brought a motion for summary judgment claiming constructive dismissal after his employer unilaterally cancelled his company vehicle benefit.

The court found the cancellation constituted a significant reduction in compensation and amounted to constructive dismissal.

The employment contract's termination clause was deemed void for ambiguity regarding statutory minimums.

The court set a reasonable notice period of 10 months, but reduced it by 30% to 7 months because the plaintiff failed to mitigate his damages by moving away from the job market.

The parent company was found to be a common employer.

Damages were awarded in the amount of $56,025.

The accused, charged with second-degree murder in the death of his common-law partner, applied to vacate his pre-trial detention order.

The victim had a history of severe injuries and reported prior domestic abuse by the accused, who had been diagnosed with schizophrenia.

The court found the proposed release plan inadequate to address the secondary ground of protecting the public, noting the lack of a detailed treatment plan for the accused's mental illness.

The court also found detention necessary under the tertiary ground to maintain public confidence in the administration of justice, given the strong Crown case, the gravity of the offence, and the vulnerability of the victim.

The application was dismissed.

The Court-appointed Receiver of Northwood Recycling & Energy Inc. moved for an order to relinquish assets subject to BNG Financial's purchase money security interest (PMSI) and to pay BNG $5,000 from the sale of a mixer.

BNG brought a cross-motion seeking compensation for the Receiver's use of the equipment during the receivership and for its diminished value.

The court granted the Receiver's motion and dismissed BNG's cross-motion, finding that BNG failed to establish a claim for unjust enrichment or breach of duty by the Receiver, as BNG could have taken steps to realize on its security at any time.

The respondents brought an unopposed motion to distribute the residue of their late father's estate and to require the applicant estate trustee to repay certain amounts to the estate.

The court found that the estate trustee had failed to properly administer the estate, resulting in unnecessary costs and delays.

The court ordered the estate trustee to reimburse the estate for improper expenses, denied her claim for trustee compensation, and directed the distribution of the remaining funds with setoffs against the estate trustee's share for her liabilities and previous costs awards.

The Public Guardian and Trustee, acting as litigation guardian for an incapable person, brought a summary judgment motion against the incapable person's former attorney for property.

The attorney had transferred the incapable person's unencumbered residential property to himself in trust for his daughter for no consideration, subsequently sold it, and misappropriated funds from her bank accounts.

The court found the attorney breached his fiduciary duties and ordered him to pay damages of $2,550,000 for the property sale and $150,015 for the misappropriated funds, plus full indemnity costs.

The applicant son brought a motion within a guardianship application to determine his 91-year-old father's capacity to instruct counsel, and to enforce previous orders regarding financial disclosure and access visits.

The father, who suffers from aphasia, had been assessed by multiple capacity assessors.

The court found the father had capacity to instruct counsel regarding his personal care and residence, but lacked capacity to instruct on property matters due to his inability to understand a disputed $280,000 mortgage.

The court directed the Public Guardian and Trustee to arrange section 3 counsel for the father, ordered the respondent siblings to provide the long-overdue accounting, and enforced the applicant's access visits, awarding substantial indemnity costs against the respondent siblings for their reprehensible conduct in delaying the proceedings.

The applicant, an elderly woman in long-term care, sought a writ of possession to evict her nephew from her home so it could be sold to fund her care.

The nephew argued he had an oral agreement granting him a life interest in the property in exchange for helping his aunt and paying her $50,000, which he claimed was part consideration.

The court found the $50,000 was repayment of a prior debt and that the nephew's actions did not constitute part performance unequivocally referable to an agreement for an interest in land.

The court rejected the nephew's claims of proprietary estoppel and granted the writ of possession, staying the eviction for three months to allow him to relocate.

Following a trial where the applicant mother was entirely successful on issues of parenting time and child support, she sought costs of $161,606.69.

The court found the respondent father acted in bad faith by misrepresenting evidence regarding a replica gun strapped to the child's crib and by shaving the child's head in retaliation for a failed mediation.

Due to the finding of bad faith under Rule 24(8) of the Family Law Rules, and considering the applicant's reasonable offers to settle, the court awarded the applicant her full costs of $161,606.69, payable forthwith, with one-third enforceable by the Family Responsibility Office as child support.

The Proposal Trustee brought a motion to compel the Proposal Sponsor to fund the Trustee's continuing work to resolve outstanding proofs of claim, specifically the Athanasoulis Claim, via a two-phase arbitration.

The Sponsor objected to funding phase 2 of the arbitration, arguing it was an improper delegation of the Trustee's duties under s. 135 of the BIA.

The court agreed with the Sponsor, finding that while phase 1 (fact-finding) was acceptable, phase 2 (final adjudication of damages) improperly delegated the Trustee's statutory responsibility to determine and value the claim.

The Sponsor was not ordered to fund phase 2 of the arbitration but remains obligated to fund the Trustee's reasonable expenses to determine the claim through an alternative process.

A non-lawyer sought leave under Rule 15.01(2) of the Rules of Civil Procedure to represent a corporate defendant in an action involving a purchaser's lien.

The court applied the Extend-A-Call factors and denied leave, finding that the proposed representative was not an officer, director, or shareholder, lacked understanding of the litigation process, and took positions contrary to the corporation's pleadings.

The motion was dismissed, and the corporation was ordered to be represented by a lawyer.

The applicant mother brought a motion to stay the respondent father's motion to change child support until he complied with an outstanding order for child support and costs.

The father argued he could not afford the payments due to a large debt incurred from a previous trial, for which the mother had been ordered to pay $85,000 in costs before declaring bankruptcy.

The court applied the three-step test for non-compliance under Rule 1(8) of the Family Law Rules and found that exceptional circumstances existed.

The court exercised its discretion not to stay the motion to change, finding it would be unjust to block the father's access to the court given the financial history and potential lack of full disclosure at the prior uncontested hearing.

The mother's request for security for costs was also dismissed.

At a case management hearing in a guardianship dispute, the court ordered the waiver of solicitor-client privilege for three lawyers who prepared Powers of Attorney for the incapable person, Paul Tanti, to allow them to testify at the upcoming hearing.

The court also directed that former Section 3 counsel for Paul Tanti transition to the role of amicus curiae, given her intimate knowledge of the complex and highly acrimonious proceeding, and set out the order of presentation and permitted evidence for the upcoming hearing.

Two applications were brought to determine the fair market value of shares held by the late Silvio Marsili in 438506 Ontario Limited, pursuant to a buy-sell agreement triggered by his death.

The parties' expert business valuators disagreed on valuation methodology, EBITDA normalizations, contingent liabilities, and the minority discount.

The court resolved the specific valuation disputes, preferring the respondent's expert on methodology but the applicant's expert on several normalizations and contingent liabilities.

The court directed the experts to prepare revised valuation opinions incorporating its findings.

The court also granted the applicant's request for an order for the sale of a jointly owned property under the Partition Act.

The applicants were previously successful in obtaining an order for the sale of a jointly owned property.

In this costs decision, the court declined to award costs to the successful applicants.

The court found that the case involved an unusual set of facts—unrelated property owners with separate dwellings on jointly owned land—and that both parties, particularly the applicants, missed opportunities to resolve the matter short of litigation.

Each party was ordered to bear their own costs.

The applicants and respondents own neighbouring properties subdivided from a single parcel.

The respondents hold an easement over a strip of the applicants' land for pedestrian access to 'use and enjoy the shores of Lake Ontario'.

The applicants sought a declaration limiting the respondents' use to mere ingress and egress to the water.

The court dismissed the application, finding that the surrounding circumstances at the time the easement was created, including the zoning of the strip as an open space private park, indicated an intention to allow recreational use such as sitting and enjoying the view, rather than just passing through.

The defendant moved without notice for default judgment on its counterclaim after the plaintiff failed to defend and its claim was struck.

The court dismissed the motion, finding that the relief sought in the draft judgment (declarations regarding property and assets) did not match the prayer for relief in the counterclaim (damages).

The court granted the defendant leave to amend its counterclaim but ordered no further steps be taken without court order due to ongoing case management of related bankruptcy proceedings.

The plaintiff, a senior area supervisor with nearly 30 years of service, brought an action for wrongful dismissal after being terminated for cause.

The employer alleged the plaintiff breached company policies regarding conflicts of interest, markdowns, and ethical conduct, including failing to disclose a relationship with a cleaning contractor and improperly discounting furniture for himself and friends.

The court found the plaintiff engaged in serious misconduct, including fraud and breach of trust, which went to the core of the employment relationship.

Applying the McKinley proportionality test, the court concluded the employer had just cause for summary dismissal and dismissed the action.