SCJ 2023

The plaintiff brought a motion to discontinue a proposed class action in Ontario regarding illnesses allegedly caused by the herbicide Gramoxone.

The plaintiff, a resident of British Columbia, preferred to proceed as a class member in a parallel action in British Columbia.

The defendants opposed the discontinuance, arguing it was a tactical move to avoid litigating in Ontario.

The court granted the discontinuance with prejudice, finding no prejudice to putative class members and noting that the defendants' concerns could be addressed through costs.

The court awarded the defendants costs of $71,807.32 on a partial indemnity scale.

The defendants brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation claim.

The plaintiff, former Executive Director of the local Chamber of Commerce, sued the defendants after they wrote letters to various organizations criticizing her job performance and calling for her termination.

The court found that while the expressions related to a matter of public interest, the plaintiff's claim had substantial merit and there were grounds to believe the defences of qualified privilege and fair comment would fail.

The court concluded that the harm suffered by the plaintiff outweighed the public interest in protecting the defendants' expressions, which were vitriolic and motivated by personal animus.

The motion was dismissed.

The plaintiffs sought costs of $12,500 on a partial indemnity basis following a successful motion to set aside a default judgment.

The defendant argued for no costs or a maximum of $5,000, citing divided success due to a nunc pro tunc order granted in its favour.

The court found the defendant's aggressive and untenable approach to maintaining the default judgment warranted a costs award to the plaintiffs.

Costs were fixed at $10,000 inclusive of HST and disbursements.

During a jury trial for procuring and related offences, the Crown sought leave to introduce portions of the complainant's prior consistent statements during re-examination to rehabilitate her credibility after cross-examination.

The court applied the test from R. v. Murray and denied the request, finding that the complainant had not claimed her prior statements were lies, but rather offered explanations for inconsistencies.

The court held that admitting the statements would violate the general rule against prior consistent statements and cause prejudice to the accused.

The accused was charged with 10 counts relating to the possession of two loaded handguns and 127.75 grams of fentanyl.

The charges arose after a high-speed police chase ended in a collision, from which a man fled on foot, hiding the firearms and drugs in a nearby backyard before being arrested.

The sole issue at trial was the identity of the fleeing man.

The court found that the totality of the circumstantial evidence, including video surveillance, clothing, and DNA, overwhelmingly established that the accused was the man who fled the vehicle and possessed the contraband.

The applicant sought a declaration that he was not married to the respondent and an order that she vacate his property.

The parties participated in a religious marriage ceremony in 2004 while the applicant was still married to his first wife.

The court granted summary judgment declaring the marriage void ab initio, as the applicant lacked capacity to marry, rendering s. 31 of the Marriage Act inapplicable.

Consequently, the property was declared not to be a matrimonial home.

However, the court declined to order the respondent to vacate the property on an interim basis, finding she had a potentially meritorious constructive trust claim that required a trial.

The Crown brought an application during a criminal proceeding to admit prior consistent statements made by two complainants under various exceptions to the hearsay rule.

The court ruled that utterances made by the complainants to civilian witnesses shortly after the alleged events, as well as a 911 call, were admissible for their truth under the res gestae or spontaneous utterance exception.

The court also admitted observations of the complainants' physical and emotional states as circumstantial evidence relevant to consent, and allowed certain statements to police under the narrative and prior identification exceptions.

This was a family law costs decision arising from a settled third-party records motion seeking production from a bank.

The court held that settlement did not preclude a full costs analysis and found the moving party was successful because the consent order delivered the disclosure relief sought.

In any event, costs were warranted under the Family Law Rules because the responding party had repeatedly failed to comply with prior disclosure orders and acted unreasonably on the motion itself.

The court found the amount claimed excessive for a straightforward production motion and fixed fair and proportionate costs at $8,500 on a partial indemnity basis.

The respondent father brought a contempt motion against the applicant mother, alleging non-compliance with a final parenting order.

The mother argued that the motion should not proceed because the final order contained a mandatory dispute resolution clause requiring mediation/arbitration.

The court held that while it retains exclusive jurisdiction over contempt, contempt is a discretionary remedy of last resort.

The court declined to pass directly to a contempt finding and ordered the parties to proceed to mediation/arbitration as required by their final order, adjourning the contempt motion sine die.

The respondent husband brought a motion seeking $74,651 from the applicant wife's share of the proceeds from the sale of their matrimonial home, representing half of the post-separation carrying costs and child support.

The wife sought $72,900 in occupation rent as a set-off.

The court denied the wife's claim for occupation rent, noting her exclusion from the home was due to her own violent assault against the husband.

The court also denied the husband's claims for maintenance and child support credits, but awarded him $41,042.88, representing half of the mortgage payments made between separation and the sale of the home.

The court issued a notice under Rule 2.1.01 of the Rules of Civil Procedure of its intention to dismiss five related proceedings commenced by the plaintiff in 2005 as frivolous, vexatious, or an abuse of process.

The plaintiff failed to respond to the notice.

The court found the pleadings to be incomprehensible, repetitive, and abusive, naming dozens of defendants with no material facts against some.

The court dismissed all five actions for being an abuse of process and for excessive delay.

Following a motion to change where the parties had divided success on parenting and child support issues, both parties sought costs.

The court reviewed the parties' respective offers to settle under Rule 18 and found that neither party achieved a result as favourable or more favourable than their offers.

Given the divided success and the factors under Rule 24, the court ordered that each party bear their own costs.

The moving party mother brought an urgent motion for parenting time with her 18-month-old child, whom she had not seen for almost two months.

The responding party father supported parenting time but sought a gradual transition without proposing a specific schedule, while the mother sought an immediate move to shared parenting.

The court applied the best interests of the child factors under the Children's Law Reform Act and ordered a gradual transition to a shared, equal parenting schedule.

The applicant, as estate trustee, brought a motion for directions seeking an order for a formal passing of accounts by the respondent for his time acting as their mother's Power of Attorney for Property.

The applicant also sought to have issues regarding a mortgage held in the respondent's name tried jointly.

The court dismissed the motion for a formal passing of accounts, finding that the respondent had already provided extensive informal accounting and the applicant failed to raise any significant concern or specific allegations of misfeasance to warrant a formal passing.

A case conference was ordered to address the remaining mortgage issues.

The Applicants in a CCAA proceeding moved for a reverse vesting order to approve a transaction with a purchaser related to a secured creditor, Marzilli.

The transaction would vest out the first-ranking security interest of another creditor, 212, and transfer its debt to a residual entity with no assets. 212 opposed the motion, arguing its debt assumption was part of the stalking horse bid that set the floor for the sales process.

The court applied the Third Eye and Harte Gold factors, finding that 212 had not consented to the vesting out of its interest and that the equities favoured 212.

The court dismissed the motion for the reverse vesting order, concluding it was not equitable to extinguish 212's first-ranking security interest under the circumstances.

The defendants in a certified class action brought a consent motion to validate the late opt-outs of five class members.

The five individuals were current clinic employees or contracted workers who had missed the opt-out deadline but did not wish to participate in the class action.

The court found that including current staff as class members raised practical difficulties and compromised the defendants' ability to defend the action.

The court granted the requested relief on consent.

Following a four-day trial regarding child support, parenting time, and decision-making, the successful applicant sought costs of $30,000.

The court found the applicant was presumptively entitled to costs, beat her offer to settle, and acted reasonably, while the respondent acted unreasonably and delayed proceedings.

The court awarded the applicant $30,000 in costs, with 50% enforceable as support by the Family Responsibility Office.

In a child protection proceeding, the Office of the Children's Lawyer abandoned a request to present the children's views without a clinician's affidavit.

Counsel for the foster parents sought costs for the attendance and requested an adjournment of an upcoming summary judgment motion due to a scheduling conflict.

The court noted counsel's unprofessional conduct and mischaracterization of a previous hearing involving a student-at-law, but ultimately granted the adjournment to ensure the foster parents could be represented by their counsel of choice.

A timeline for written costs submissions was established.

The plaintiff brought a motion to inspect documents over which the defendant claimed solicitor-client and litigation privilege in an action for property damage allegedly caused by negligent road construction.

The court reviewed the disputed documents and found that most were protected by privilege, as litigation was contemplated early in the parties' negotiations.

The court ordered the production of a few documents that did not meet the test for privilege.

The court also dismissed the plaintiff's argument that the defendant had impliedly waived privilege in its Statement of Defence, but granted the plaintiff's motion to strike a paragraph of the Statement of Defence with leave to amend.

The applicant sought costs of $10,000 on a partial indemnity scale for a motion regarding funds removed from a law firm's trust account.

The respondent sought costs of $74,940.75 on a substantial indemnity scale, claiming success on the motion.

The court found mixed success, as the applicant's motion prompted the return of $68,544.90 to the trust account, but the applicant was unsuccessful on the balance of the motion.

The court made no order as to costs for either the motion or the cross-motion.