SCJ 2023

The applicant sought a bail review to vary a condition that completely banned his use of social media.

He had been arrested during the 'Rolling Thunder' protest and charged with causing a disturbance and mischief.

The court found that an absolute ban on social media use was overly broad and an error in law, as it unjustifiably infringed on the applicant's Charter right to freedom of expression and political dissent.

The bail condition was varied to only prohibit using social media to counsel or encourage others to break the law.

The Crown brought a pre-trial application to adduce the video recorded police statement of a deceased witness in a second-degree murder trial.

The defence opposed the application, arguing the statement lacked threshold reliability and could not be cross-examined.

The court found the statement met the test for procedural reliability under the principled exception to the hearsay rule, noting adequate substitutes for cross-examination such as hallway video footage and the solemnity of the interview.

The application was granted and the statement was ruled admissible.

The plaintiff in a defamation action brought a motion for leave to amend his statement of claim, including adding his professional corporation as a plaintiff, and alternatively sought to extend the time to issue a statement of claim in a placeholder action.

A non-party sought and was granted leave to intervene to oppose certain amendments.

The court denied the amendment to add the professional corporation on the basis of issue estoppel, as a previous judge had already denied the same request.

The court also denied amendments that improperly sought document production or contained scandalous information about the non-party.

The motion to extend time in the placeholder action was dismissed as an abuse of process and a collateral attack on the previous judge's order.

Success being divided, no costs were awarded.

The defendant in a defamation action brought a motion for the production and preservation of documents from non-parties, as well as a sealing order and publication ban regarding the identities and medical information of two non-party insured individuals.

The court granted the unopposed production orders.

Applying the Sherman Estate test, the court granted the sealing order and publication ban for one insured whose identity remained anonymous, but dismissed the request for the other insured whose identity was already public and where the scope of the requested health information ban was too vague.

The applicant, charged with fraud over $5000, brought a motion for a stay of proceedings alleging a violation of her right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay was 38.4 months.

The court deducted 8.25 months as defence delay due to implicit waiver during protracted resolution discussions, and a further 1.15 months for discrete exceptional circumstances caused by the COVID-19 pandemic.

The remaining delay fell below the 30-month ceiling and was found to be reasonable, as the applicant took no meaningful steps to expedite the proceedings.

The application was dismissed.

The self-represented applicant brought a 14B motion seeking leave to appeal a prior order that restricted further motions without permission.

The court clarified that the prior order was not intended to apply to motions for leave to appeal or stay the order itself.

The court granted permission for the motion, if required, and directed the applicant to serve and file the motion in the regular course pursuant to the Rules of Civil Procedure.

The applicant mother sought to be appointed guardian of property for her minor son in relation to an ongoing civil action.

The court dismissed the application as premature because the underlying action had not yet resulted in a judgment or settlement, meaning the minor currently owned no property.

The court noted that a guardianship application should be brought concurrently with a motion for settlement approval once funds are actually awarded.

At a case management appearance, the self-represented applicant sought to adjourn the upcoming trial and amend her application to advance a new theory.

The court scheduled a motion to adjourn the trial before the trial judge and granted the applicant leave to file an amended application.

The matter returned to update the court on the parties' readiness for trial regarding a jurisdictional dispute over child custody between Ontario and Kuwait.

The applicant requested more time to prepare, but the court directed the trial to commence in November 2023 as a hybrid proceeding.

The court also permitted the filing of a lengthy affidavit on behalf of the Children's Lawyer and scheduled a further update.

The parties appeared for an update on trial readiness in a family law matter.

The self-represented applicant requested Kuwaiti court documents from the respondent, which he agreed to attempt to provide.

The court noted that preliminary resolution steps would not be pursued and directed the trial coordinator to schedule an expedited trial.

The matter was adjourned to September 5, 2023, for a further update.

The matter was before the court for the commencement of a trial regarding an international child abduction.

On consent of the parties and the Children's Lawyer, the trial was adjourned to allow the parties to obtain expert reports on Kuwaiti family law, file an expert report from the Children's Lawyer, and arrange relationship counseling for the children.

A further appearance was scheduled to monitor progress.

The applicant brought a motion regarding an international child abduction claim.

The court noted that the Children's Lawyer had not been notified and a first meeting had not been held, as required by the Family Law Rules.

Given the issues of credibility and the need for expert evidence on foreign law, the court adjourned the motion, ordered the involvement of the Children's Lawyer, and scheduled a trial of the issues.

The plaintiff, Humi Holdings Corporation, brought a motion for an interlocutory injunction to prevent former employees and their new company from competing and using alleged confidential information to develop an embedded payroll software product.

The court admitted expert evidence from both sides.

Applying the RJR-MacDonald test, the court found that the plaintiff failed to establish a strong prima facie case that the non-competition clauses were enforceable or breached, or that confidential information was misused.

Furthermore, the plaintiff failed to demonstrate irreparable harm, and the balance of convenience favored the defendants.

The motion was dismissed with costs awarded to the defendants.

In this family trial, the court resolved disputed equalization, support, and parenting terms after most parenting issues had been settled.

The court held that a parental $200,000 reduction of a registered mortgage was not a completed gift before marriage because the donors retained control until the mortgage discharge after marriage, and the applicant therefore failed to prove the claimed date-of-marriage deduction.

The court also found that the applicant wrongfully refused to close a matrimonial home buyout by insisting on improper family law adjustments under the agreement of purchase and sale, and ordered forfeiture of half of the $110,000 deposit to the respondent.

Recurring parental payments for childcare and legal fees were treated as income rather than loans, leading to imputation of income at $111,583 from 2019 onward.

Set-off child support and proportionate section 7 sharing were ordered, spousal support was denied, and detailed parenting terms were fixed.

The applicant sought damages after the respondent wrongfully refused to discharge a vendor take-back mortgage upon full payment.

The respondent's refusal prevented the applicant from refinancing the property, causing him to lose a lucrative opportunity to purchase another commercial investment property.

The court found the respondent breached its contractual obligation to discharge the mortgage within a reasonable time and acted in bad faith.

The court awarded the applicant $150,375 in compensatory damages for the lost opportunity, but dismissed the claim for punitive damages as there was no independent actionable wrong.

The accused brought a motion to quash counts 3 and 4 of the indictment, arguing they did not meet the requirements of section 574 of the Criminal Code.

The Crown had added these counts based on a witness's testimony at the preliminary inquiry regarding 'movements in the water' in a hot tub involving the accused and a complainant.

The court found that the testimony did not clearly reveal a sexual offence and, even if it did, such evidence of prior sexual activity required a Seaboyer application to be admissible.

The motion was granted and the counts were quashed.

The defendants were successful on a motion to strike the plaintiff's statement of claim in its entirety, with leave to amend.

The defendants sought costs of $41,979.61, relying on an offer to settle that would have allowed the plaintiff to amend his claim.

The self-represented plaintiff argued he was impecunious and that success was divided.

The court found the defendants were overwhelmingly successful and that the plaintiff's impecuniosity did not shield him from a costs award, though it was a factor in reducing the quantum.

Costs were fixed at $15,000 payable by the plaintiff.

The plaintiff paving contractor sued the defendant general contractor for unpaid invoices and extras on a construction project (the Archmill project).

The plaintiff had also refused to perform work on a second, unrelated project (the Burgessville project) until it was paid for the first.

The court found that the plaintiff was entitled to payment for some, but not all, of the disputed extras on the first project.

However, the court also held that the plaintiff's refusal to work on the second project constituted an anticipatory breach of contract.

The defendant was awarded damages for the extra costs incurred to complete the second project, and the court allowed the defendant to equitably set off those damages against the amount owed to the plaintiff on the first project.

The plaintiff's claim for breach of trust under the Construction Act was dismissed.

The accused pleaded guilty to a sexual offence involving a minor.

The court accepted a joint sentencing submission, imposing a period of imprisonment followed by probation and various ancillary orders, including sex offender registration and prohibitions on contact and presence near children.

The decision highlights the application of sentencing principles, balancing aggravating factors such as the breach of trust and significant victim impact, with mitigating factors including the guilty plea and the offender's first-time status.

The applicant and respondent separated after a 30-year traditional marriage.

The respondent had retired and was receiving a pension.

The applicant sought a lump sum equalization of the pension.

Shortly after learning of this claim, the respondent transferred his unencumbered property to his brother for no consideration.

The court found the respondent and his family members lied under oath and that the transfer was a fraudulent conveyance intended to defeat the applicant's claim.

The court ordered the pension to be divided by a lump sum equalization payment of $356,950.18.

The court declined to order ongoing spousal support to avoid double dipping, as the respondent's only income was the pension being equalized.