SCJ 2022

The accused, charged with sexual offences against a minor and drug trafficking, brought a Charter application to exclude statements made to police and evidence seized from his home.

The accused had called 911 to report a break and enter, leading police to discover a distraught minor who made allegations against him.

The court found the accused was not initially detained during the preliminary investigation, but his s. 10(b) right to counsel was breached when an officer had him sign a written statement knowing an arrest was imminent.

The court excluded the signed statement under s. 24(2) but admitted the prior oral statements and evidence obtained via search warrants, finding no s. 8 breaches.

The accused sought disclosure of operational copies of BitTorrent investigative software, related manuals, source code, and associated materials used in a child pornography investigation.

The court held that operational copies of the software were relevant to anticipated Charter and Garofoli applications and to an issue at trial, but nevertheless refused production after balancing the accused’s interests against the public interest in preserving investigative technique privilege.

The court found that certain narrow categories of private information, including peer identification data and methods by which the software identified itself on the network, were not relevant and were privileged.

Most Crown redactions to manuals, logs, transcripts, and validation materials were upheld, although some were ordered removed where the information was relevant and non-privileged.

The plaintiff brought a motion for summary judgment to enforce a mortgage against the defendants.

The court considered whether the plaintiff could charge compound interest on default and whether an $87,000 payment made by one of the defendants should be allocated to the mortgage debt or to separate personal loans.

The court held that the compound interest provision violated section 8 of the Interest Act and was void.

Using its enhanced fact-finding powers under Rule 20.04(2.1), the court found that the $87,000 payment was allocated to the personal loans, not the mortgage.

Summary judgment was granted to the plaintiff for $374,060.97 plus simple interest, along with an order for possession of the property.

The parties separated and the mother unilaterally removed the children from the matrimonial home.

On an interim motion, the father sought to change the parenting schedule from 2-2-3 to 2-2-5-5 and to have the eldest child attend school in his catchment area, relying on an Office of the Children's Lawyer (OCL) report.

The mother opposed the changes and sought to have the child attend school in her catchment area.

The court granted the father's requests, finding that the 2-2-5-5 schedule would reduce conflict through fewer exchanges, and that the mother's unilateral actions and alienating behaviour made the father's proposed school the better choice for the child's stability.

The court determined costs following the dismissal of the applicants' application regarding legal non-conforming use of their property and the dismissal of the respondent's contempt motion.

The respondent sought over $230,000 in costs, while the applicants sought costs for the contempt motion.

The court declined to award costs to either party for the contempt motion.

For the application, the court awarded the respondent partial indemnity costs fixed at $150,000, finding the requested amount too high but acknowledging the respondent's complete success.

At a case management conference in a certified class proceeding against Uber, the court considered whether to schedule the plaintiffs' proposed motions to amend their statement of claim and certify an additional common issue regarding an arbitration and class action waiver clause.

The defendants had already brought a motion to amend the class action notices.

Pursuant to section 12 of the Class Proceedings Act, 1992, the court exercised its discretion to allow the plaintiffs' motions to be scheduled and heard together with the defendants' motion, and set a timetable for the delivery of materials and the hearing.

The plaintiffs in a class proceeding sought approval of the long-form and short-form notices to be distributed to affected class members following a previously approved settlement.

The court approved the notices, finding them to be in plain language and clear regarding participation and opt-out procedures.

The court also permitted the notices to be distributed in English only, as the defendant only provided services in English.

The applicant brought a motion seeking an order compelling the respondent to buy her interest in the matrimonial home, arguing they had reached a binding agreement.

In the alternative, she sought to vary a previous order to dispense with the respondent's consent to sell the home and to hold 50 percent of the sale proceeds in trust.

The court found that the parties had not reached an agreement on all essential terms and that specific performance would not be appropriate even if they had.

The court declined to dispense with the respondent's consent but imposed strict conditions to prevent him from frustrating the sale.

The court also varied the previous order, directing that 50 percent of the sale proceeds be held in trust pending trial to preserve the applicant's potential claim for damages.

Following the dismissal of their motion for leave to proceed under the Securities Act and for class certification, the plaintiffs brought a consent motion to discontinue the action without costs.

The court granted the motion, finding that discontinuance was appropriate and would not prejudice putative class members, as notice of the class proceeding had never been circulated.

The court also approved the proposed Notice of Discontinuance and Notice Plan.

During a trial for drug trafficking and manslaughter, the Crown brought an O'Connor application to disclose the medical records of a fragile witness.

The Crown sought to adduce the witness's preliminary hearing transcript in lieu of oral testimony.

The court applied the two-stage O'Connor procedure to the second tranche of subpoenaed medical records.

Finding the records relevant to the witness's ability to testify, the court ordered the disclosure of the psychiatric assessment portions with appropriate redactions to protect the witness's privacy.

The defendants brought a motion to strike the statement of claim and dismiss the action due to the plaintiff's failure to advance the litigation, including failing to attend an examination for discovery.

The plaintiff's counsel also sought to be removed from the record due to an irreparable breakdown in the solicitor-client relationship, as the plaintiff had retrieved its file and ceased communication.

The court granted the motion to remove counsel and gave the plaintiff 60 days to appoint new counsel or file a notice of intention to act in person, failing which the defendants could renew their motion to strike the claim.

The plaintiffs brought a motion for sentencing after the defendant was found in civil contempt for breaching multiple court orders requiring him to remove defamatory internet postings and cease publishing further defamatory statements.

The defendant engaged in a years-long campaign of vilification and deliberately flouted the court's orders, only purging his contempt shortly before sentencing.

The court found that a fine or conditional sentence would be inadequate given the defendant's history of non-compliance and the need for deterrence.

The defendant was sentenced to four months of incarceration without remission.

The person sought in an extradition proceeding brought an application for disclosure of records from the Requesting State (United States), including police interviews and polygraph test results, to support a potential abuse of process claim.

He alleged that he had cooperated with US authorities and passed a polygraph test, which was not mentioned in the Record of the Case.

The court dismissed the application, finding that the person sought failed to meet the first stage of the Larosa test because his affidavit did not provide an evidentiary foundation for an agreement or deal with US authorities that would support a stay for abuse of process.

The plaintiffs brought a motion under Rules 30.04(2) and 30.04(5) for the production and inspection of unredacted board minutes referred to in the defendant's Statement of Defence and Counterclaim.

The defendant had produced heavily redacted versions, arguing the redacted portions were irrelevant and commercially sensitive.

The court granted the motion, finding that the entire document was deemed relevant by being referenced in the pleadings, and the defendant failed to meet its onus of demonstrating that the redacted information was irrelevant or that its production to the plaintiffs would cause harm.

The plaintiff was awarded over $1.1 million in damages following a personal injury trial.

The parties appeared before the court to determine the costs of the trial and the calculation of a management fee.

The court found that the plaintiff had made reasonable offers to settle that were more favourable than the judgment, entitling her to elevated costs.

The court awarded the plaintiff $852,528.03 in costs and disbursements, and fixed the management fee at $125,000 based on an annualized sliding scale rather than a fixed percentage.

The applicant mother sought an interim order permitting her to relocate with the parties' 5-year-old daughter from Sarnia to Aurora for employment purposes.

The respondent father opposed the relocation and sought shared parenting time and joint decision-making responsibility.

The court found that the mother had met the burden of proving the relocation was in the child's best interests, noting the financial benefit to the family unit and the mother's inability to find suitable employment in Sarnia.

The court granted the interim relocation, awarded the mother decision-making responsibility for education and extracurricular activities, ordered joint decision-making for health and religion, and set out a parenting schedule for the father.

The moving defendants, including the estate of a deceased driver, brought a motion for partial summary judgment to cap their liability at their $1 million insurance policy limits.

The estate sought this relief to allow for the distribution of estate assets to beneficiaries, which had been delayed by the ongoing litigation.

The court dismissed the motion, finding genuine issues requiring a trial regarding liability and damages.

The court also noted that capping the minor plaintiff's potential recovery without a full assessment of damages and liability apportionment would risk undercompensating him and would not be approved under Rule 7.08.

The respondent father brought a motion to change seeking a contribution from the applicant mother for section 7 expenses relating to their son's university moving costs and their daughter's hockey equipment, as well as a variation of ongoing child support for the son who was attending university away from home.

The court ordered the mother to pay her proportionate share of the son's moving expenses, finding she had unreasonably withheld consent, but dismissed the claim for hockey expenses as they were not extraordinary.

The motion to vary ongoing child support was dismissed with leave to renew due to insufficient evidence regarding the son's post-secondary expenses and ability to contribute.

The mortgagee defendants brought a motion seeking an order that the corporate plaintiff pay security for costs under Rule 56.01(d) of the Rules of Civil Procedure.

The underlying action involved a failed real estate development and claims of civil conspiracy and knowing receipt of trust property.

The court found good reason to believe the plaintiff had insufficient assets in Ontario to pay costs, and the plaintiff failed to demonstrate impecuniosity or a real possibility of success on its equitable claims.

The motion was granted, and the plaintiff was ordered to post security for costs in the amount of $186,000.

The defendants brought a motion for security for costs against the corporate plaintiff under Rule 56.01(1)(d).

The plaintiff brought a cross-motion seeking a sealing order for an affidavit and to exclude certain evidence allegedly obtained improperly by the defendants.

The court dismissed the cross-motion for a sealing order, finding the plaintiff did not meet the Sherman Estate test.

On the security for costs motion, the court found the defendants met their initial onus of showing good reason to believe the plaintiff had insufficient assets in Ontario, and the plaintiff failed to demonstrate sufficient assets.

The plaintiff was ordered to post security for costs in the amount of $105,000 on a pay-as-you-go basis.