SCJ 2023

This ruling addresses the costs of an application where the applicants successfully obtained an order terminating an Agreement of Purchase and Sale via summary judgment.

The applicants sought $37,052.24 in partial indemnity costs, citing complexity and importance.

The respondent argued the matter was not complex and proposed a maximum of $15,000.

The court, applying principles of reasonableness and proportionality, awarded the applicants $25,000 inclusive of disbursements and HST.

The applicant sought to terminate child support for three adult children.

The court found that one child (Sommer) was no longer a child of the marriage as of June 2019, and another (Dawson) was no longer a child of the marriage as of when he started full-time work in 2021 (date to be determined).

However, the third child (Hailie) remained a child of the marriage due to health issues and a temporary hiatus from studies.

The court varied the interim support order accordingly, but stayed the order regarding Dawson until the applicant complied with a previous financial disclosure order.

No costs were awarded due to divided success.

The applicants, estate trustees, sought directions regarding the distribution of a lapsed charitable gift in the will of Anna Salnikova.

The deceased had bequeathed 20% of her estate's residue to a charity that no longer exists.

The applicants proposed distributing this portion pro-rata among the other 19 named charities, effectively treating it as an intestacy.

The Public Guardian and Trustee (PGT) argued for the application of the cy-pres doctrine, directing the gift to a charity with similar charitable objects.

The court found that the will demonstrated a general charitable intent, particularly given that 95% of the estate was gifted to charities and the specific importance of the lapsed gift's purpose (orphans in South America).

Consequently, the court applied the cy-pres doctrine, rejecting the applicants' intestacy argument and ordering the PGT to identify suitable nominee charities.

The appellant, a psychiatrist, appealed a decision of the Consent and Capacity Board which found the respondent capable of consenting to treatment (antipsychotic medication).

The appellant argued the Board made a legal error by applying the wrong test for capacity and palpable and overriding errors of mixed law and fact by misapprehending crucial medical evidence.

The court dismissed the appeal, finding no legal error in the Board's application of the capacity test under the Health Care Consent Act, and no palpable and overriding error in its factual findings, including its assessment of the connection between the respondent's behavior and medication.

The plaintiff obtained a summary judgment against the defendant vendor for an aborted real estate transaction.

After the appeal period expired, the plaintiff filed a writ of seizure and sale against the vendor's property.

However, prior to the writ being filed, the vendor had entered into an agreement of purchase and sale with a third-party purchaser.

The plaintiff brought a motion for an interim order to prevent the transfer of the property and declare its writ valid.

The court dismissed the motion, applying the principle that once an agreement of purchase and sale is signed, the purchaser acquires an equitable interest in the property, and a subsequently filed writ of execution against the vendor does not bind the purchaser's interest.

The respondent father brought a motion seeking to return the child's residence to the Greater Toronto Area (GTA) and for orders regarding equal parenting time and joint decision-making.

The applicant mother opposed, seeking to maintain the child's residence in Westmeath and for sole decision-making.

The court declined to order the child's return to the GTA, finding the mother's initial relocation was not intended to be permanent and the father had acquiesced by delaying his motion.

The court expanded the father's parenting time to preserve his relationship with the child but did not grant the mother sole decision-making, instead ordering joint decision-making on major issues.

The decision emphasized the child's best interests and the established status quo in Westmeath.

The defendant, Trez MR Holdings (Ontario) Ltd., brought a motion for security for costs.

The motion was dismissed without prejudice, for the same reasons set out in a related proceeding (CV-21-943).

Given the divided success on the entirety of two motions, the court ordered that each party bear their own costs, resulting in no costs awarded.

The defendant/plaintiff by counterclaim, Trez MR Holdings (Ontario) Ltd. ("Trez"), brought a motion seeking leave to bring a motion for security for costs against the plaintiff/defendant by counterclaim, Probert Construction Inc. ("Probert"), in two related construction lien actions.

Trez argued there was good reason to believe Probert had insufficient assets in Ontario to cover costs, citing unpaid subcontractors and delays in prosecution.

Probert countered that it had ongoing projects and assets, and that the existence of liens alone was not proof of insufficiency.

The court found that Trez's evidence did not rise above mere speculation and failed to establish "good reason to believe" Probert had insufficient assets.

Consequently, leave to bring the motion for security for costs was refused, and the motion was dismissed.

No costs were awarded due to divided success on the overall motions (examination issues were resolved prior).

The Barge Respondents (Temagami Barge Limited and Dashiel Lowery Delarosbel) brought a motion to transfer an application from Toronto to North Bay.

The applicant, Corporation of the Municipality of Temagami, opposed this transfer, advocating for Haileybury due to significantly shorter hearing delays.

The court, applying Rule 13.1.02(2)(b) of the Rules of Civil Procedure, dismissed the motion to transfer to North Bay.

Instead, the court ordered the application to be transferred to Haileybury, finding it more geographically appropriate for the community and witnesses, and crucial for securing the just, most expeditious, and least expensive determination of the proceeding by avoiding further delay.

Costs were awarded to the Municipality of Temagami.

The Ontario Ministry of the Attorney General and the Public Prosecution Services of Canada jointly applied for the appointment of a computer forensic analyst to seize and seal inadvertently recorded audio-video communications made by the Woodstock Police Services.

These recordings included privileged solicitor-client communications and court proceedings.

The court found it had inherent jurisdiction to intervene to protect Charter rights and solicitor-client privilege.

While declining to appoint the analyst directly as requested, the court ordered the appointment of a referee (a member of the Ontario Bar) to select an analyst, oversee the segregation of privileged communications from court recordings, notify affected counsel, and manage the destruction of recordings as appropriate.

The costs of the referee and analyst are to be borne by the Crown.

The Estate Trustee, Cynthia Stren, brought a motion for summary judgment to dismiss Morrissa Amsel's claim against the Estate, arguing it was statute-barred under the Limitations Act and/or the Trustee Act.

Morrissa claimed a trust and contractual interest in a property, asserting her claim was an equitable claim in land subject to the Real Property Limitations Act's 10-year period, and that she lacked capacity to bring the claim earlier.

The court found Morrissa's claim was contractual, not equitable, and was statute-barred under both the Limitations Act and the Trustee Act.

Her evidence of incapacity was deemed insufficient.

The motion for summary judgment was granted, dismissing Morrissa's claim.

This is a costs endorsement following the dismissal of the applicant's motion for financial disclosure.

The applicant, Barbara Cohen, sought extensive financial disclosure from the Estate of Sidney Cohen and other parties, which the court found to be an attempt to circumvent a prior bifurcation order by Justice Audet.

The court dismissed the disclosure motion and subsequently awarded costs to the successful respondents and non-parties, including the Estate, Susan Charendoff, Brian Cohen, and several corporate non-parties.

The decision addresses the principles of costs, including partial indemnification, encouraging settlement, discouraging inappropriate behavior, and ensuring justice, while considering the reasonableness and proportionality of the requested amounts.

The accused, charged with sexual assault, sought a ruling on whether various records in their possession met the definition of "record" under s. 278.1 of the Criminal Code, thereby subjecting them to the record screening regime.

The court analyzed different categories of records, including family photos, video footage, emails, social media messages, and family law documents.

The court found that most records did not meet the definition, as they lacked intimate personal information or a reasonable expectation of privacy.

However, two family law documents (Form 13 Financial Statement and Form 17C Settlement Conference Brief) were deemed subject to the regime due to their confidential nature and protected status under the Family Law Rules.

The accused, Tal Amdurski, was charged with multiple sexual services, sexual assault, and human trafficking offenses involving a 13-year-old complainant.

The central issue for several charges was the accused's mistaken belief in the complainant's age and whether he took all reasonable steps to ascertain it.

For human trafficking, the court also considered the elements of conduct and purpose, specifically whether the accused exploited the complainant.

The court found the accused guilty of sexual assault, sexual interference, material benefit from sexual services of a person under 18, obtaining sexual services for consideration of a person under 18, and procuring.

He was found not guilty of the primary human trafficking charge and material benefit from human trafficking, but guilty of the included offenses of trafficking in persons and material benefit from trafficking in persons, as the Crown failed to prove knowledge or willful blindness regarding the complainant's age for the higher charges.

The plaintiffs brought a motion to certify a class action against the Attorney General of Canada on behalf of inmates in federal penitentiaries who were subjected to suspicionless strip searches.

The plaintiffs alleged that the regulations authorizing these searches in certain situations were ultra vires the Corrections and Conditional Release Act, breached sections 7 and 8 of the Charter, and constituted torts including trespass to the person and intrusion upon seclusion.

The court dismissed all of Canada's objections and granted the motion for certification, finding that the pleadings disclosed causes of action, the class definition was appropriate, the proposed common issues were valid, a class action was the preferable procedure, and the litigation plan was workable.

The plaintiffs, Resolute Forest Products Inc. and its affiliates, brought a motion seeking an order to waive the deemed undertaking rule under Rule 30.1.01(8) of the Rules of Civil Procedure.

They sought to use discovery evidence, including documents, from the Ontario action in a related defamation and intentional interference with economic relations action commenced in the United States District Court of the Northern District of California.

The defendants, Greenpeace Canada and its employees, opposed the motion.

The court dismissed the motion, finding that Resolute failed to demonstrate a superior public interest that would outweigh the privacy protections of the deemed undertaking rule.

The court noted that the parties and issues in the Canadian and US actions were not sufficiently similar to warrant a waiver, and that Rule 30.1.01(6) already permits the use of discovery evidence for impeachment in another proceeding, including foreign ones.

The court also found that Resolute was not sufficiently particular about what specific evidence was required.

The 19-year-old accused was sentenced for a pharmacy robbery, masking, possession of a stolen vehicle, carjacking, and dangerous driving following a police pursuit.

The court found the carjacking and dangerous driving were motivated by a desire to escape apprehension for the pharmacy robbery, warranting consecutive sentences.

After considering the accused's youth, guilty pleas, and particularly harsh presentence custody conditions during the pandemic, the court imposed a total sentence of four years, reduced to five months and 24 days after applying enhanced credit for presentence custody.

This defamation action involved Dianne Ballam and multiple defendants, including Linda Atamanchuk, concerning a newspaper article.

Following settlement with other defendants, the plaintiff, Dianne Ballam, moved to amend her statement of claim to reduce damages to $35,000 and remove injunctive relief, and to transfer the action to the Small Claims Court.

The defendant, Linda Atamanchuk, opposed the transfer, arguing procedural prejudice.

The court granted the amendment and the transfer, finding the Small Claims Court capable of resolving the dispute and that no genuine procedural prejudice would result.

The court also awarded Ms. Atamanchuk partial indemnity costs thrown away.

The defendant Million Dollar Round Table (MDRT) brought a motion to strike the plaintiff's statement of claim against it for disclosing no reasonable cause of action, or alternatively, for dismissal due to delay.

The plaintiff alleged negligence against MDRT, a voluntary trade association, based on a fraudulent letter from a former member bearing the MDRT emblem.

The court found that the claim failed to plead sufficient material facts to establish a novel duty of care owed by MDRT to the plaintiff, particularly for pure economic loss.

Despite the defendant's delay in bringing the motion and having filed a statement of defence, the court granted the motion to strike without leave to amend, citing the futility of the claim, the plaintiff's inaction in advancing the case, and the principle of proportionality in simplified procedure actions.

The Landlord brought a motion for default judgment against the Tenant and Jeff Donnelly for damages arising from a lease breach.

The court granted partial judgment for rent arrears, vacancy arrears, and realtor/property management fees totaling $87,633.65.

However, the court declined to grant judgment for the claimed future rent differential, citing the lack of present value calculations and insufficient evidence of mitigation efforts.

Additionally, the claim for a penalty against Jeff Donnelly under section 50 of the Commercial Tenancies Act was not granted due to the absence of evidence regarding the value of the removed chattels.

The remaining issues were ordered to proceed to trial.