SCJ 2022

The moving party requested an urgent Case Conference but filed a 16-page, single-spaced brief with improper attachments, breaching the Practice Direction.

The court refused to proceed with the conference on the documents filed, emphasizing that counsel must follow the Rules and Practice Directions and that chronic inattention to them is unacceptable.

The matter was adjourned to allow for the filing of corrected briefs.

The applicant, a 19-year-old charged with second degree murder, applied for judicial interim release.

The Crown opposed release on all three grounds, emphasizing the tertiary ground given the gravity of the charge.

The court found that the proposed plan of strict house arrest, constant supervision by the applicant's parents as sureties, and GPS ankle monitoring sufficiently mitigated the risks under the primary, secondary, and tertiary grounds.

The court granted release but increased the proposed monetary pledge from $25,000 to $150,000 to ensure the sureties and the applicant had sufficient financial incentive to comply with the strict conditions.

On a refusals and undertakings motion in a civil action arising from a fatal impaired driving collision, the plaintiffs sought to compel answers and production from one defendant concerning punitive damages, historical alcohol use, driving history, social media, and incarceration-related records.

The court held that discovery is for ascertaining relevant facts, not adjudicating the viability of a partial summary judgment position, and refused to bar disclosure on the basis that punitive damages might ultimately fail because of the prior criminal sentence.

Broader disclosure was ordered concerning the Miami trip, past driving infractions, social media usernames and trip-related posts, and parole and incarceration records, subject to limits against overbroad and intrusive requests such as Apple ID data.

The defendant was ordered to answer the specified refusals in Appendix “A” and re-attend for further discovery.

The applicant step-father brought a motion seeking contact and parenting time with his 5-year-old step-child after the respondent mother unilaterally terminated contact for nine months.

The mother argued that as a non-parent, the applicant had no presumptive right to access and that resumed contact would negatively affect her mental health.

The court found that the applicant had demonstrated a settled intention to treat the child as his own and had been authentically involved in parenting.

The court ordered the resumption of contact, emphasizing that a biological parent cannot arbitrarily deprive a child of a committed step-parent relationship.

During a civil trial, the plaintiffs sought to cross-examine a defence witness on unproven fraud charges to impeach his credibility, after the witness denied having a criminal record in chief.

The court denied the request, holding that under the bad character exclusionary rule, unproven allegations against a non-party witness have high prejudicial effect and extremely low probative value.

The court sentenced the offender for incest, sexual exploitation, making child pornography, possessing child pornography, and criminal harassment arising from prolonged sexual abuse of a vulnerable minor half-sibling and a large collection of violent child pornography.

Applying Friesen, the court emphasized denunciation and deterrence for sexual offences against children and vulnerable persons, while also undertaking a detailed Gladue analysis because the offender was Indigenous.

The court found significant aggravating factors including grooming, abuse of power, violence, lasting harm, threats to distribute intimate images, and the size and nature of the pornography collection.

Gladue factors reduced moral blameworthiness only in relation to the offences against the complainant, not the child pornography possession offence.

After accounting for totality and harsh pre-sentence custody conditions, the court imposed a global sentence of twelve years less enhanced credit for time served, together with ancillary orders.

The appellant, a religious teacher, appealed his convictions for sexual assault and sexual interference against a 10-year-old student.

He argued the trial judge erred by failing to address inconsistencies and implausibilities in the complainant's evidence, improperly using a prior consistent statement to bolster credibility, and conflating the absence of a motive to fabricate with positive proof of no motive.

The Superior Court of Justice dismissed the appeal, finding the trial judge adequately addressed the evidence, properly used the prior consistent statement as circumstantial evidence, and correctly addressed the motive to fabricate in response to the defence's cross-examination.

Following an order enforcing the plaintiff's mortgage against the proceeds of sale of a mortgaged property, the plaintiff sought costs of $33,342.15 on a substantial indemnity basis as provided in the mortgage.

The defendants argued the plaintiff was not entitled to costs for a prior motion to set aside a default judgment that was settled and deemed abandoned.

The court held that under Rule 37.09(3), the plaintiff was entitled to costs of the abandoned motion.

The court found the claimed costs were proportionate and reasonable, awarding the full amount sought.

The moving party sought to set aside or vary an ex parte order that required her to file an application for a certificate of appointment of estate trustee or be deemed to have renounced.

The court found that the responding party failed to make full and fair disclosure of material facts on the ex parte motion, specifically omitting that the moving party's counsel had responded and sought production of the drafting lawyer's file.

The ex parte order was set aside under Rule 39.01(6).

However, the court declined to grant the moving party's requested variation to compel production of the file, finding it overly broad for a motion to vary.

Costs of $2,000 were awarded to the moving party.

The defendant daughter brought a motion to discharge certificates of pending litigation (CPL) registered against two properties by the plaintiff father.

The father had obtained the CPL on an ex parte motion, claiming beneficial ownership of a condo registered in the daughter's name, the proceeds of which were allegedly used to purchase the properties.

The court found that while the father had a reasonable claim to an interest in land, he failed to make full and fair disclosure of material facts on the ex parte motion, including the source of the down payment and a letter stating the funds were a gift.

Balancing the equities, including the non-disclosure and the availability of damages as a remedy, the court discharged the CPL without security.

A class member brought an unopposed motion to extend the opt-out period in a certified class action regarding the alleged use of surveillance cameras at a medical clinic.

The class member had always intended to pursue an individual action and had commenced one prior to the certification of the class proceeding, but failed to submit an opt-out form by the deadline.

The court granted the motion, noting its jurisdiction to extend the time for opting out to preserve the legal rights of those wishing to exercise them outside the class action.

The applicant brought a motion to dismiss the respondent's appeal for delay, and the respondent brought a cross-motion to extend the time to perfect her appeal.

The respondent was appealing a summary judgment order that found the child in need of protection, placed the child in extended society care, and denied her access.

The court applied the test for extending time to perfect an appeal and found that the respondent provided no explanation for the delay, there was prejudice to the child in further delay, and the evidentiary record supported the motion judge's conclusions.

The respondent's motion to extend time was dismissed, and the applicant's motion to dismiss the appeal for delay was granted.

The defendants brought a motion for security for costs against the plaintiff, a corporate entity that had ceased operations and had no assets.

The plaintiff opposed the motion, arguing impecuniosity and that its claim for breach of contract had a high probability of success.

The court found that the plaintiff failed to meet the high evidentiary threshold to prove impecuniosity, as it did not provide sufficient evidence regarding the financial ability of its shareholders to fund the litigation.

The court also found the merits of the claim to be a neutral factor.

The court ordered the plaintiff to post $85,000 in security for costs, payable in four installments.

The applicant developer sought to enforce a cost sharing provision in a 1975 subdivision agreement against the respondent municipality, arguing the municipality was required to collect a proportionate share of servicing costs from a new adjacent development.

The court dismissed the application, finding that the cost sharing obligation was only triggered if the new development connected to or benefited from the installed services, which it did not.

The court also dismissed the applicant's alternative claim for unjust enrichment, holding that the subdivision agreement provided a juristic reason for the municipality's benefit.

The plaintiff moved for judgment to enforce Minutes of Settlement purportedly executed following a pre-trial conference regarding a dispute over beneficial ownership of two condominium properties.

The defendants opposed, arguing they did not agree to transfer the property as a trustee to a beneficial owner and felt pressured to sign.

The court dismissed the motion, finding the evidentiary record deficient and conflicting, with three different versions of the Minutes of Settlement presented and no direct evidence from the plaintiff confirming his signature.

A trial was directed to determine whether a binding settlement agreement was actually reached.

The applicants sought a declaration that the respondent insurer had a duty to defend them in an underlying action alleging misappropriation of funds from syndicated mortgages.

The insurer had denied coverage, arguing the applicants made a material misrepresentation in their insurance application regarding their source of financing.

The court found that the email relied upon by the insurer lacked detail and precision, and the insurer failed to clarify the ambiguous answers.

The court concluded there was no misrepresentation and ordered the insurer to resume defending the applicants and pay their incurred defence costs on a full indemnity basis.

Laurentian University of Sudbury brought an unopposed motion for an order sanctioning its Plan of Compromise and Arrangement under the Companies' Creditors Arrangement Act.

The Plan had been approved by the requisite double majority of affected creditors.

The Superior Court of Justice found that the applicant strictly complied with all statutory requirements, no unauthorized steps were taken, and the Plan was fair and reasonable.

The Court also approved the third-party releases contained in the Plan, unsealed previously sealed exhibits, and extended the stay of proceedings to allow for the Plan's implementation.

The applicant father commenced family law proceedings but failed to take any steps to move the matter forward.

The respondent mother was granted leave to proceed by way of an uncontested trial.

The court granted the mother sole decision-making responsibility, primary residence, and the ability to travel without the father's consent.

The father was ordered to pay ongoing child support, arrears for section 7 expenses, and a proportionate share of prospective section 7 expenses.

A divorce was also granted.

The plaintiffs brought a motion during trial under Rule 53.08 of the Rules of Civil Procedure for leave to introduce previously undisclosed documents to impeach a defence witness.

The trial had been adjourned for several months due to illness, meaning the defendants had the documents since January 2022 and cross-examination had not yet commenced.

The court granted the motion, finding that while the explanation for late disclosure was weak, the lengthy adjournment cured any prejudice or ambush, and the documents could be used solely for impeachment purposes.

The offender was convicted of possession of property obtained by crime and money laundering after turning a blind eye to his spouse's $1 million fraud against her employer.

The Crown sought a three-year penitentiary sentence, while the defence sought two years.

Emphasizing denunciation and deterrence, the court sentenced the offender to 30 months' incarceration and imposed an $800,000 free-standing restitution order, joint and several with his spouse.