SCJ 2023

The applicant, who lost a municipal school trustee election by a single vote, sought a recount under s. 58 of the Municipal Elections Act.

The court distinguished between undervotes and overvotes/adjudicated ballots.

While dismissing the request for a recount of the 258 undervotes due to their common nature and lack of specific evidence of error, the court found objective grounds to doubt the result based on a single overvote and an unknown number of adjudicated mail-in ballots.

Consequently, a narrow recount was ordered for the overvote and adjudicated ballots to ensure fairness and avoid disenfranchising voters, given the extremely close margin.

The Kriesers sued Gregory Evan Seligman and his companies (G.E.S. Construction Limited, Greenstone Gardens Inc., etc.) for breach of contract, breach of fiduciary duty, breach of duty of good faith, punitive damages, trespass, and intimidation related to the construction of a luxury custom home.

The defendants counterclaimed for unpaid accounts.

The court found that the Kriesers breached the construction and landscaping contracts by failing to make timely and sufficient payments.

All claims brought by the Kriesers were dismissed, and the counterclaims by G.E.S. Construction Limited and Greenstone Gardens Inc. for outstanding amounts were granted.

The defendants moved to dismiss or permanently stay the plaintiff's action, alleging a breach of the common law deemed or implied undertaking rule.

They claimed the plaintiff used documents obtained from an Ontario Labour Relations Board (OLRB) matter to prepare its statement of claim in the civil action.

The plaintiff argued there was no breach, or alternatively, sought relief from the consequences.

The court dismissed the defendants' motion, finding that Ontario's Rule 30.1.01(2) limits the deemed undertaking rule to evidence obtained through discovery processes under the Rules of Civil Procedure, and therefore does not apply to documents obtained from an unrelated proceeding in another forum like the OLRB.

The defendants brought a motion to enforce Minutes of Settlement, alleging the plaintiff failed to produce certain financial information and was responsible for specific payments.

They also wrongly accused the plaintiff of theft.

The plaintiff, through substantial investigation, proved that nothing was owing and no documents were missing.

The court found the defendants' claims unfounded and awarded the plaintiff costs on a substantial indemnity scale, totaling $59,000.00, payable from funds held in trust by the defendants' counsel.

The decision emphasized that the costs award compensates the successful party without exceeding the unsuccessful party's reasonable expectations, as per Rule 57.01(1)(0.a) and (0.b) of the Rules of Civil Procedure.

This endorsement concerns the costs of an injunction motion where the plaintiffs' request to prohibit the defendant Dongab Co. Inc. from exercising its power of sale on two mortgages was denied.

Dongab and Network Sewer and Watermain Ltd., the successful defendants, sought costs on a full indemnity basis, or alternatively substantial or partial indemnity.

Despite mortgage documentation calling for full indemnity, the court exercised its discretion under section 131 of the Courts of Justice Act to award costs on a partial indemnity scale, finding the requested amounts extraordinarily high and exceeding the plaintiffs' reasonable expectations.

The plaintiffs were ordered to pay $163,000.00 in all-inclusive costs.

The respondent father brought a motion seeking an interim order for shared or increased parenting time and joint decision-making responsibility for the parties' three children, along with co-parenting counselling.

The applicant mother opposed, alleging the father was neglectful and citing the two eldest children's wishes for limited time with him.

The court found it in the children's best interests to transition gradually to shared parenting with joint decision-making.

The court did not accept the mother's claims of neglect and found her unilateral conduct had contributed to the deterioration of the father-child relationship.

The motion was granted in favour of the father, with orders for counselling for the father and children, and co-parenting counselling for both parents.

The plaintiff brought a motion seeking to consolidate or hear together two actions: a tort action arising from multiple motor vehicle accidents (MVAs) and an accident benefits (AB) action arising from one specific MVA.

The plaintiff also sought leave to amend the statement of claim and extend time to set down the tort action, which were unopposed and granted.

A preliminary issue regarding the admissibility of affidavit paragraphs containing without prejudice communications from mediation was resolved by striking the paragraphs.

The court found that the gateway criteria under Rule 6.01 for hearing actions together were met, as the tort injuries and SABS entitlement arose from the same MVA.

However, after balancing factors such as the presence of a jury notice in one action but not the other, the differing stages of readiness, the significant delay an order would cause to the AB action, the distinct legal issues, and the lack of clear cost or time savings, the court dismissed the plaintiff's motion to have the actions heard together or one after the other.

The accused, A.H., was charged with three criminal offences: making child pornography, possession for the purpose of distribution of child pornography, and agreeing or arranging to commit a sexual offence against a child.

The court assessed the credibility and reliability of the complainant's testimony, finding it compelling despite minor inconsistencies due to time passage and age.

The court determined that the photographs described by the complainant constituted child pornography, were taken for a sexual purpose, and that A.H. was actively involved in their creation and possession with intent to distribute to an online contact ("Ed").

The court also found that A.H. had agreed and arranged with "Ed" via telecommunication to commit these offences.

A.H. was found guilty on all three counts.

The accused, Peyton Brown, brought an application to exclude evidence obtained during an investigative detention, search, and subsequent arrest, alleging breaches of sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

The charges included possession of a loaded prohibited firearm and other related offences.

The court found that the police had reasonable grounds to suspect the individuals were connected to a criminal offence involving a firearm, justifying the investigative detention.

Furthermore, the court found that the firearm was observed prior to any pat-down search, and even if a search had occurred, it would have been reasonable for officer safety.

Consequently, no Charter violations were found, and the application to exclude evidence was dismissed.

The Director, Family Responsibility Office (FRO), on behalf of Shannon Brown, brought a motion for a Warrant of Committal against Trevor Dubeau for failing to comply with a 2016 default order regarding child support arrears, which had accumulated to over $83,000.

Dubeau claimed inability to pay due to unemployment since 2015, a house fire, and living with parents in a rural area with poor internet and no driver's license.

The court found Dubeau's explanations lacked evidence of efforts to find employment or disability, concluding he was purposefully underemployed and his non-payment was wilful and deliberate.

The court granted the motion, ordering Dubeau's incarceration for 180 intermittent days until the arrears are cured or payment arrangements are made.

This decision addresses a question of law that arose during a jury trial concerning the interpretation of causation under s. 320.14(3) of the Criminal Code, which pertains to impaired driving causing death.

The Crown argued for a temporal link between the impairment/illegal blood alcohol concentration (BAC) and the accident resulting in death, asserting that no causal link between the impairment itself and the accident was required.

The court rejected this interpretation, holding that the offence requires a causal link, meaning the impairment or illegal BAC must be a significant contributing cause of the accident that resulted in death.

The court emphasized the need for moral blameworthiness to be connected to the serious consequences of the offence.

This endorsement addresses the issue of costs following a motion where the defendants successfully obtained a reduction in the quantum of a lien claim, though the lien itself was not discharged.

Both the plaintiff and the defendants sought costs, claiming success.

The court found that there was divided success on the underlying motion and noted the parties' failure to make bona fide efforts to settle costs.

Considering the proportionality, complexity, and importance of the issues, as well as the excessive hours and rates claimed by both parties, the court determined that a fit and just costs order was for each side to bear its own costs.

This decision addresses a summary judgment motion by Security National Insurance Company (SN) seeking to dismiss claims for unidentified automobile and family protection coverage.

The central issue was whether the deceased, Lawrence Hamel, and the named insured, Yvonne Moelker, qualified as "spouses" under the Insurance Act and OPCF 44R endorsement, given they maintained separate residences due to Hamel's mental health.

SN argued for a strict co-residence requirement, while the plaintiffs and the Motor Vehicle Accident Claims Fund advocated for a broader interpretation aligned with family law's dependency context.

The court dismissed SN's motion, adopting the expansive, holistic definition of "spouse" from the Family Law Act, which does not mandate shared dwelling, finding that Yvonne and Larry were indeed spouses.

The applicant sought partial summary judgment to dismiss the respondent's claim to set aside a cohabitation agreement.

The respondent argued the agreement should be set aside due to unconscionability, undue influence, duress, and inadequate financial disclosure, stemming from alleged coercive control during their 18-year common law relationship.

The court found that there was a genuine issue requiring a trial, particularly concerning the credibility of the parties and the nature of their relationship, which could not be resolved on a paper record.

The applicant's motion for summary judgment was dismissed.

Sheldon Livingston, a co-accused, brought a motion for severance from his co-accused, Yasmin Muzafary, to allow him to call her as a witness in support of his self-defence claim.

The court dismissed the application, finding that the applicant failed to demonstrate a reasonable possibility that the co-accused would testify if severed, or that her testimony would favorably affect the verdict, especially given the strong video evidence of a joint attack.

The court emphasized the strong presumption in favour of joint trials for co-accused acting in concert and the public interest in judicial efficiency.

This is a costs endorsement for three related applications concerning shareholder rights and oppression remedies in private companies (Producers Planning Group Ltd., The Benefits Group Inc., and Thornbridge Capital Inc.).

The main applications resulted in an order for the sale of businesses and assets of two companies, while claims for oppression remedies were dismissed for all parties.

The court found that all parties had substantial success as respondents in opposing the oppression claims made against them.

Due to the overlapping issues and the divided success, the court ordered no costs for any of the three applications, as the costs of successful respondents would largely offset the costs for which they would be liable as applicants in other applications.

The Crown brought an application to admit prior convictions of the accused, Jorge Nieto-Zelaya, as similar fact evidence in a sexual assault trial involving a young complainant (RM).

The prior convictions related to sexual touching involving another young complainant (MG) while the accused was providing hair care services.

The defence argued that the similarities were generic and that the prejudicial effect outweighed the probative value.

Applying the framework from R. v. Handy, the court found the evidence highly probative, demonstrating a specific and distinctive pattern of predatory conduct by the accused towards young boys in the context of hair care services, which defied coincidence.

The court concluded that any moral or reasoning prejudice could be managed through proper jury instructions.

The application to admit the similar fact evidence was granted.

The Applicant Mother brought a Motion to Change the Final Order of Justice Mackinnon, seeking sole decision-making authority and a varied parenting schedule for the parties' eight-year-old child.

The Respondent Father sought dismissal of the motion.

The court found a material change in circumstances due to the father's adherence to conspiracy theories, which negatively impacted his ability to make decisions in the child's best interests, particularly regarding health and education.

The court granted the mother sole decision-making authority and varied the weekday parenting time to reflect the current practice.

However, the alternating weekend parenting time remained unchanged, as it was deemed consistent with the child's best interests.

This ruling addresses two mid-trial motions: one by the defendant, Ashcroft Homes – Eastboro Inc., for leave to introduce information related to late-delivered undertakings, and another by the plaintiffs for leave to amend their statement of claim.

The court granted Ashcroft's motion, finding a reasonable explanation for the delay and that any prejudice to the plaintiffs could be compensated by an adjournment and costs.

The court also granted the plaintiffs' motion to amend their statement of claim, including a proposed amendment regarding non-compliance with Schedule "A" of the agreements, determining it did not introduce a new cause of action and thus no non-compensable prejudice due to limitation periods.

The plaintiffs, condominium unit owners, brought an urgent motion seeking to remove criteria for participating in director elections (payment of a special assessment), reschedule the Annual General Meeting (AGM), remove a director, and obtain court supervision of the Board.

The court found no urgency for most of the relief sought, noting the plaintiffs had prior knowledge of the issues.

While a prima facie case was established regarding the special assessment's propriety due to the Corporation's failure to investigate the unit 35 owner's liability, the plaintiffs failed to demonstrate irreparable harm or that the balance of convenience favored them.

The motion for injunctive relief (items a, b, d) was dismissed.

The request to remove a director (item c) was adjourned as it lacked urgency and could be scheduled as a regular motion.