SCJ 2022

The applicant father brought an urgent motion prohibiting the respondent mother from removing their one-year-old child from Ontario to Israel.

The mother argued the child was habitually resident in Israel and commenced proceedings there.

The court applied the hybrid approach to determine habitual residence and found that the child was habitually resident in Ontario, as the parties had demonstrated a settled intention to relocate to Canada.

The court assumed jurisdiction over the provincial family law claims but dismissed the Divorce Act claims as the parties had not resided in Canada for one year.

The mother was ordered to pay $15,000 in costs.

The appellant appealed a Consent and Capacity Board decision confirming her incapacity to consent to a community treatment plan and upholding a community treatment order.

The appellant, who has a history of bipolar disorder, argued the Board applied the wrong legal test for capacity and that the treatment plan was overbroad regarding mobility and marijuana use.

The Superior Court of Justice dismissed the appeal, finding the Board correctly applied the test from Starson v. Swayze and made no palpable and overriding error in its factual findings or its interpretation of the treatment plan.

The plaintiffs brought a motion seeking leave to amend their statement of claim more than seven years after commencing an action for nuisance and trespass against their neighbour.

The proposed amendments sought to add a new plaintiff, new causes of action relating to windows and a venting system, and new heads of damages.

The court denied leave for the substantive amendments, finding that they asserted new causes of action that were statute-barred and that the unexplained seven-year delay gave rise to a presumption of non-compensable prejudice to the defendant.

Leave was granted only for minor, unopposed amendments.

The accused, charged with manslaughter and other offences, brought a pretrial application for a stay of proceedings, alleging a violation of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay from the date of the charges to the anticipated completion of the trial was 30 months and 28 days.

The court deducted 4.5 months of defence delay caused by counsel's scheduling inflexibility, bringing the net delay below the 30-month presumptive ceiling.

The court found the defence failed to demonstrate meaningful and sustained steps to expedite the proceeding, and dismissed the application.

The plaintiffs brought an action against the municipality for damages arising from a single-vehicle motorcycle accident caused by a surface discontinuity at an intersection.

The court assessed the plaintiffs' damages, including general damages, past and future income loss, and Family Law Act claims.

However, applying the four-part test for municipal liability under section 44 of the Municipal Act, the court found that while the roadway was in a state of non-repair that caused the accident, the municipality successfully established a statutory defence because the height of the discontinuity met the Minimum Maintenance Standards.

Consequently, the action was dismissed.

The applicant sought to admit a document entitled 'Outline of Will' to probate as the last will and testament of the deceased.

The document was in point form but signed and witnessed.

The court found ambiguity as to whether the document was intended to be a will or merely an outline for a future will, and whether it was intended to revoke previous wills.

The application was adjourned to allow the applicant to provide additional evidence regarding the circumstances of the document's execution and the intentions of the deceased.

The defendants brought a motion under Rule 21.01(1)(b) to strike portions of a statement of claim arising from a police shooting.

The moving parties sought to strike claims against three chiefs of police, three unnamed John Doe constables, and claims for punitive and aggravated damages.

The court granted the motion, finding that the Police Services Act does not create a private law duty of care for police chiefs, the John Doe constables were empty placeholders without material facts, and the claims for punitive and aggravated damages lacked the requisite factual basis.

Following a nine-day family law trial involving property trust claims, equalization, and spousal support, both parties sought substantial or partial indemnity costs.

The court reviewed the trial outcomes, noting that success was divided across the various complex issues.

Neither party's offers to settle met the conditions for full indemnity costs under the Family Law Rules, nor did they significantly alter the assessment of success.

Finding no unreasonable conduct by either side, the court ordered that each party bear their own costs.

The applicant successfully challenged a contingency fee agreement with her former lawyers, resulting in the agreement being declared void and an order for the assessment of the lawyers' accounts.

The respondents' subsequent motion to reopen the application was dismissed.

In this costs decision, the court awarded the applicant costs of the application on a partial indemnity basis and costs of the motion on a substantial indemnity basis, noting the respondents' aggressive opposition and unfounded allegations of dishonesty.

Following cross-motions regarding child and spousal support, imputing income, and life insurance, the parties made written submissions on costs.

The court found divided success on the issue of the applicant's income for support purposes, but noted the respondent was successful in resisting the imputation of income to her and on the life insurance issue.

Applying principles of proportionality and reasonableness, the court awarded the respondent costs fixed at $5,085.

The applicants, the parents of the deceased, sought a Certificate of Appointment of Estate Trustee without a Will and an order dispensing with an administration bond.

The court previously adjourned the matter due to concerns about a potential marriage in Las Vegas and undisclosed liabilities related to the deceased's law practice.

The applicants provided supplementary evidence confirming the Las Vegas wedding was a media stunt and not a legal marriage, and that the estate's liabilities were estimated at $2.2 million.

The court granted the letters of administration but declined to dispense with the bond, citing the need to protect known and potential creditors, including those related to the deceased's law practice.

A bond of $1.5 million was ordered.

During a civil jury trial for a slip and fall claim, the plaintiff moved to discharge the jury following the defendants' closing address.

The plaintiff argued that defence counsel's closing submissions contained numerous transgressions, including misstating evidence, expressing personal opinions, referring to unproven hearsay, and breaching the rule in Browne v. Dunn.

The trial judge agreed, finding that the cumulative effect of the improper statements and trial conduct created a substantial risk of a miscarriage of justice that could not be cured by correcting instructions.

The motion was granted, the jury was discharged, and the trial was concluded by judge alone.

On a pre-trial Charter motion in a prosecution alleging historical sexual offences against the accused's child, the court reviewed two search warrants targeting a residence, a backpack, and electronic devices.

The Crown conceded that the address used in the first ITO was obtained during an involuntary police interview in breach of the right to silence, and the court held the first warrant had to be quashed once that information was excised.

The court further held the second ITO did not establish reasonable and probable grounds to believe that the accused's laptop and cell phone would contain the sought videos, images, or other child pornography, particularly given the speculative inferences and the eight-year gap since the alleged conduct.

The court also found a further s. 8 breach arising from the failure to file a further Report to Justice after examining the electronic data.

Applying the s. 24(2) analysis, the court excluded the cell phone evidence.

The plaintiff foundation, established by a deceased donor, brought a motion for an interlocutory injunction or an order under Rule 45.02 to prevent the defendant charitable foundation from making distributions from a donor-advised fund.

The plaintiff sought to compel the defendant to make distributions according to the plaintiff's instructions.

The court dismissed the motion, finding no serious issue to be tried because a valid charitable gift requires the donor to divest all power and control over the property to the donee.

The plaintiff conceded it could not compel specific donations, and failed to establish irreparable harm or that the balance of convenience favoured an injunction.

The applicant mother sought costs on a substantial indemnity basis following her successful application to declare the respondent father a vexatious litigant and his unsuccessful motion to extend the time to perfect an appeal.

The mother argued that the father's bad conduct in previous proceedings justified an elevated scale of costs.

The court rejected this argument, holding that conduct in prior proceedings cannot be used to punish a party in the current proceeding.

Costs were awarded to the mother on a partial indemnity basis, fixed at $15,181.07, based on the principles of proportionality and reasonableness.

In a Commercial List receivership arising from judgment enforcement, the receiver moved for contempt after the respondent swore a declaration used to support a criminal complaint in Panama challenging the receiver's replacement of directors of a Panamanian subsidiary.

The court held it had jurisdiction because the alleged misconduct had a real and substantial link to Ontario, including the Ontario receivership order, the Ontario corporation in receivership, and the enforcement of an Ontario judgment.

Applying the civil contempt framework, the court found the appointment order was clear and unequivocal, the respondent knew of it, and he intentionally breached it by purporting to act for the debtor and by supporting foreign proceedings against the receiver without leave.

The court declined to find criminal contempt because the notice of motion did not provide sufficient particulars.

The accused, an Indigenous man, was found guilty of sexually assaulting his intimate partner.

The Crown sought a four-year sentence, while the accused sought three years.

The court considered the severe aggravating factors, including the frequency of the assaults and the victim's vulnerability, alongside the mitigating factors of the accused's limited record and mental health issues.

Applying Gladue principles, the court acknowledged the accused's impoverished upbringing and systemic background factors but found that the serious nature of the offence required a significant penitentiary term.

The accused was sentenced to four years in custody.

The parties requested that their upcoming family law settlement conference proceed virtually rather than in-person, on consent.

The court held a teleconference to address the request to change the presumptive mode of hearing.

The Regional Senior Justice outlined the factors the court will consider when a party seeks to depart from the presumptive mode, emphasizing that limited court resources and scheduling complexities require a clear and compelling reason.

The court ruled that consent alone is insufficient to change the presumptive mode and ordered the settlement conference to proceed in-person on a rescheduled date.

The accused was convicted of first degree murder and kidnapping in relation to a drug debt.

The court sentenced the accused to the mandatory life imprisonment without parole eligibility for 25 years for first degree murder.

For the kidnapping conviction, considering the accused's role as an aider and his limited criminal record compared to his co-accused, the court imposed a concurrent sentence of 15 years imprisonment.

The defendants moved to stay the plaintiff's action under s. 7(1) of the Arbitration Act, 1991, arguing the dispute over a promissory note was subject to an arbitration clause in a related Master Cannabis Agreement.

The plaintiff argued the promissory note was a standalone agreement not subject to arbitration.

The court found the agreements were inextricably intertwined and the dispute fell within the broad scope of the arbitration clause.

Finding no exceptions under s. 7(2) applied, the court granted the motion and stayed the action.