SCJ 2023

The applicant, BBB Canada Ltd., sought court approval under the Companies' Creditors Arrangement Act (CCAA) for an Omnibus Assignment and Assumption of Leases, FF&E and Trade Fixtures Agreement with DKB Capital.

The motion also requested orders for the assignment of certain leases under section 11.3 of the CCAA and a temporary sealing order for the unredacted agreement.

The court found the marketing process comprehensive, the consideration fair and reasonable, and the agreement beneficial to stakeholders.

The assignments were unopposed.

The court applied the Sherman Estate test for the sealing order and found it appropriate given its limited scope and time.

The motion was granted in its entirety.

Sentencing for a youthful Indigenous offender who pleaded guilty to multiple child sexual exploitation offences arising from possession of over 45,000 child pornography images and videos, online luring of underage users, voyeuristic recordings, redistribution of child sexual abuse material, and participation in sexual abuse live streams.

The court held that denunciation and deterrence were paramount under s. 718.01 and Friesen, but also gave meaningful effect to s. 718.2(e) and Gladue principles, recognizing family and community dislocation, cultural disconnection, remorse, guilty pleas, and rehabilitative efforts.

The court found numerous serious aggravating factors, including the ages and number of victims, the volume and nature of the material, active encouragement of abuse, and financial participation in live-stream exploitation.

A global sentence of six years was imposed, reduced by 617 days for pre-sentence custody, harsh custodial conditions, and stringent bail terms, together with ancillary orders including a lifetime SOIRA order and a 20-year s. 161 prohibition.

The Applicant landlord sought to terminate a commercial lease and obtain a Writ of Possession, arguing the Respondent tenant failed to timely exercise its renewal option and breached lease terms.

The Respondent cross-applied for a declaration of valid renewal or relief from forfeiture.

The court found the tenant's renewal notice was submitted out of time, rendering it null and void, and dismissed the tenant's request for equitable relief from forfeiture, emphasizing strict compliance with renewal provisions in commercial leases.

The applicants in a CCAA proceeding sought an amended and restated initial order to extend the stay of proceedings, increase authorized borrowings under the DIP Term Sheet, and increase the Administration and Directors' Charges.

They also sought approval for an asset sale transaction (Pinnrz Transaction).

The Monitor supported the relief, and no party opposed.

The court granted all requested relief, finding the extension reasonable, the increased borrowings justified under CCAA s. 11.2(4), the increased charges approved under CCAA ss. 11.51 and 11.52, and the sale transaction approved under CCAA s. 36(3) and the Royal Bank of Canada v. Soundair Corp. test.

This endorsement addresses the costs arising from two motions heard on March 21, 2023.

The applicant father's motion for exclusive possession of the matrimonial home, non-removal of children, and shared parenting was largely dismissed, except for the sale of the home.

The respondent mother's motion for child and spousal support was granted.

The court found the mother to be more successful and entitled to costs, particularly due to the father's unreasonable settlement offer and his opposition to the mother's reasonable offer.

The father was ordered to pay $7,500 in costs to the mother, to be paid from his share of the matrimonial home sale proceeds.

The defendants, Jia Development Inc. and CB Bridle Path Inc., brought a motion under section 47 of the Construction Act to discharge a construction lien filed by the plaintiff, 2708320 Ontario Ltd. cob Viceroy Homes, and vacate the related certificate of action.

They also sought to dismiss the plaintiff's action due to its failure to appoint new counsel after its previous lawyers withdrew.

The court found the lien claim to be frivolous, vexatious, and an an abuse of process, citing lack of evidence for the claimed work and improper purpose.

Additionally, the plaintiff corporation failed to comply with the order to retain new counsel or obtain leave for non-lawyer representation.

The court granted the defendants' motions, discharging the lien, vacating the certificate of action, and dismissing the plaintiff's action.

The defendant, charged with domestic assault and having breached a prior non-contact bail order, applied to vary his current bail conditions to permit contact with his wife and child and to reside with them.

The court dismissed the application, finding no material change in circumstances that would warrant a variation.

Despite the complainant's recantation of her initial allegations, the court found her current testimony unreliable due to a clear power imbalance, potential coercion by the accused, and inconsistencies with her initial statements and corroborating evidence.

The court emphasized the public interest in protecting vulnerable individuals from domestic violence and the substantial risk of the accused reoffending given his history of violence across multiple domestic relationships and his disregard for court orders.

The defendant, Dr. Philip Ricciardi, brought a motion to prohibit Brian Ludmer from acting as counsel for the plaintiffs, Jefferson Wiggins et al., in a professional negligence action.

The defendant argued that Mr. Ludmer, having extensively interacted with Dr. Ricciardi as the plaintiff's previous family law counsel, would inevitably be a witness or rely on personal knowledge, creating a conflict of interest under the witness-advocate rule.

The defendant also raised a potential conflict regarding the limitation period defence.

The court granted the motion to prohibit Mr. Ludmer from acting due to the witness-advocate conflict, finding that his questioning would imply an 'unsworn offer of the lawyer’s version of the facts.' However, the court dismissed the limitation period conflict argument, as the plaintiff waived any claim against Mr. Ludmer.

The applicant sought to vary a child support order retroactively to 2017, alleging the respondent had undeclared income and had ceased payments.

The court found a material change in circumstances due to the respondent's increased income but rejected the imputation of "under the table" income due to lack of objective evidence.

Applying the D.B.S. factors, the court ordered the child support order varied retroactively to February 1, 2018, when the respondent stopped making payments, rather than the applicant's requested 2017, based on the lack of reasonable excuse for delay and the child's needs being met.

Arrears were calculated and a payment plan was set.

The defendant moved for summary judgment to dismiss a medical negligence claim, arguing it was brought outside the two-year limitation period.

The plaintiff contended that the claim was not discovered until an expert medical opinion was obtained.

The court found that the plaintiff had actual knowledge of the material facts supporting a plausible inference of liability as early as mid-February 2013, and no later than October 2013, well before the claim was issued in August 2017.

The expert opinion merely addressed the merits, not the discoverability.

The motion was granted, and the claims were dismissed.

The bankrupt brought a motion to expunge or reduce a proof of claim filed by a creditor in the amount of $5,994,500, which the bankruptcy trustee had compromised and accepted at $2,580,000.

The claim was based on a promissory note related to a share purchase agreement.

The bankrupt argued that a subsequent oral governing agreement superseded the note, making it unenforceable until the bankrupt was repaid his investments, which never occurred.

The court found the creditor's evidence lacked credibility, noting his prior criminal convictions for fraud and his reliance on the governing agreement to obtain a lighter sentence in US criminal proceedings.

The court concluded the claim was not legitimate and reduced it to an $85,000 costs award.

The court issued a costs endorsement following a motion where the Moving Defendants sought to compel undertakings and defence medical examinations (DMEs).

The court found divided success: the Plaintiff succeeded in resisting the neurosurgical DME and the broad request for ongoing undertakings, while the Moving Defendants succeeded in compelling a physiatry DME.

The court determined costs on a partial indemnity basis, awarding the Plaintiff $7,933.23 and the Moving Defendants $1,180.63, reflecting the Plaintiff's greater overall success on the motion.

The Crown applied to admit three categories of discreditable conduct evidence against the accused, Brandon Drakes-Simon and Justin Malcolm, in a first-degree murder trial: Drakes-Simon's acquisition of a firearm, his expressed intention to deal with legal bills, and evidence that he was seeking additional "contract killing" work.

The court dismissed the Crown's application, ruling all three categories of evidence inadmissible.

The judge found the evidence to have negligible probative value due to its general nature and to be overwhelmingly prejudicial, particularly as it amounted to forbidden bad character reasoning.

The Landlord brought a motion to lift the stay of proceedings under the Bankruptcy and Insolvency Act (BIA) to enforce an eviction order from the Landlord and Tenant Board (LTB) against the bankrupt tenants.

The tenants had accumulated significant rent arrears and had not complied with the LTB order to void the termination of their tenancy, nor had they paid rent post-bankruptcy.

The court found that the bankruptcies were deliberately filed to frustrate the LTB order and that the landlord was materially prejudiced by the continued stay.

The motion was granted, allowing the landlord to obtain possession of the property, and it was clarified that section 84.2 of the BIA did not apply as the termination was not solely due to bankruptcy or pre-bankruptcy non-payment.

Courtney Dennis was charged with importing cocaine and resisting arrest.

The Crown alleged Dennis knew the suitcases contained cocaine, not cash, which Dennis denied, claiming he was importing cash for his cousin.

The court admitted evidence of Dennis's prior drug dealing to prove knowledge and motive, applying principles of discreditable conduct evidence.

The judge found Dennis's testimony regarding his cousin and his unawareness of a suitcase switch unbelievable.

For the resisting arrest charge, the court concluded Dennis knew the individuals were police officers despite his denial.

Dennis was found guilty on both counts.

This application concerned a dispute between Live Nation and Aviva regarding which of two insurance policies (Aviva's or Live Nation's Starr policy) should primarily cover Live Nation's defence costs in a related claim.

Live Nation, as an additional insured under Aviva's policy (issued to its security contractor NWP), argued Aviva's policy was primary.

Aviva contended its policy was excess and sought equitable contribution from Live Nation's policy.

The court found Aviva's policy to be primary, rejecting the equitable contribution argument based on policy language and commercial intent, and ordered Aviva to pay 100% of defence costs, subject to a future re-apportionment application.

The Applicant sought an order for disclosure from and leave to question non-parties (the Respondent's son and accountant) regarding the Respondent's assets and income, particularly concerning a family trust (Simcoe Group Trust) which the Applicant suspected was used to shield wealth and decrease Net Family Property (NFP).

The Applicant argued this information was crucial for equalization and support issues and that the Respondent had been vague in his own disclosure.

The Respondent and non-parties opposed, asserting that substantial disclosure had already been provided.

The court dismissed the Applicant's motion for non-party disclosure and questioning, finding that the Applicant had not met the objective test under Family Law Rules 19(11) and 20(5), which requires more than suspicion and emphasizes proportionality, privacy interests of non-parties, and avoiding fishing expeditions.

The court also dismissed the Applicant's request to remove the matter from the trial sittings, stressing the need for the long-standing family litigation to proceed to trial for finality.

The plaintiffs brought a motion seeking to add David Shpilt and Pamela Atkinson as defendants, amend their statement of claim, register a certificate of pending litigation (CPL) against the Homewood Property, and validate service on Mr. Shpilt.

The court granted the motion with respect to adding Mr. Shpilt as a defendant, allowing the amendment of the statement of claim to include him, and validating service on him.

The balance of the motion, concerning Ms. Atkinson and the CPL, was adjourned due to insufficient service on Ms. Atkinson.

An interim order was issued to prevent the transfer or sale of the Homewood Property pending the adjourned hearing.

The plaintiff, Paul Wilson, sought summary judgment against Stephen McNeill, Cannabis Innovation Group Ltd. (CIG), and Argentia Gold Corporation (AGC) for an unpaid $100,000 loan.

The court found that McNeill, as the directing mind of CIG, made fraudulent misrepresentations regarding AGC's financial projections, inventory, and valuation, which induced Wilson to make the loan to CIG.

The court granted summary judgment against CIG and pierced the corporate veil to hold McNeill personally liable due to the fraudulent conduct.

However, the claim against AGC was dismissed, as it was not a party to the loan agreement, and there was no evidence of unjust enrichment or oppressive corporate acts by AGC.

J.C. was charged with two counts of sexual assault, two counts of sexual interference, one count of assault, and one count of accessing child pornography.

The court found J.C. guilty of sexual assault and sexual interference with respect to his two-year-old daughter (S.) and his nine-year-old niece (K.), and guilty of accessing child pornography.

J.C. was acquitted of assaulting his wife (A.A.), as the court found his actions were consistent with self-defence or defence of property.

The case involved detailed analysis of witness credibility, forensic evidence, and the legal distinction between possessing and accessing child pornography.