SCJ 2024

The Applicant mother sought costs following a three-day family law trial.

The court awarded the mother $15,000 in partial indemnity costs, rejecting her claim for full recovery due to the absence of formal settlement offers and a finding that the father did not act unreasonably.

To accommodate the father's financial difficulties and recent bankruptcy, the court ordered the costs to be paid at $200 per month.

The entire amount was deemed support to allow for enforcement by the Family Responsibility Office.

The defendants, Shane Smith and Nadine Smith, successfully moved to set aside a noting in default.

The plaintiff, Norman Wong, had initiated the action alleging fraudulent conveyance.

The Smiths were noted in default after failing to file a Statement of Defence, despite having served an affidavit of documents.

The court found that the delay was excusable due to confusion and previous counsel's health issues, that the plaintiff would not suffer non-compensable prejudice, and that the Smiths had an arguable defence with an "air of reality" regarding the fraudulent conveyance allegations.

The decision emphasized the strong preference for deciding civil actions on their merits.

This is a costs endorsement following a motion where the applicant father's motion for the return of a child was dismissed, and the respondent mother's cross-motion, asserting the child's habitual residence in Ghana and declining Ontario's jurisdiction, was granted.

The court awarded the respondent mother $7,000.00 in costs, inclusive of HST and disbursements, payable by the applicant father within 90 days.

The court considered the Family Law Rules and the parties' submissions, finding no bad faith on either side but emphasizing that surreptitious child removal is not condoned.

The applicant was charged with drug offences following a police search of an alleged commercial cannabis dispensary.

The police executed the search warrant using a dynamic, no-knock entry without justification.

Following the seizure of significant quantities of cannabis and cash, the police failed to file a Report to a Justice for over 17 months.

Additionally, the police failed to reiterate the applicant's right to counsel when she was faced with an additional, more serious charge.

The court found multiple serious breaches of the applicant's rights under ss. 8 and 10(b) of the Charter.

Applying the Grant framework, the court concluded that the cumulative effect of the police misconduct warranted the exclusion of all seized evidence under s. 24(2) of the Charter.

The accused, T.A., was charged with sexual assault and sexual interference against a 10-year-old complainant.

The trial proceeded judge-alone, with the Crown presenting evidence from the complainant and the defence calling the accused.

The court assessed the complainant's credibility and reliability, noting inconsistencies in her testimony.

Applying the principles of reasonable doubt and the W.(D.) analysis, the court found that the Crown failed to prove beyond a reasonable doubt that the touching was for a sexual purpose, which is an essential element for both charges.

Consequently, T.A. was acquitted on both counts.

This case involved a dispute between a mother and son over the division of proceeds from the sale of a jointly-owned cottage property.

The mother sought an equal 50/50 division, while the son claimed entitlement to a larger share based on significant renovations and maintenance he undertook, arguing unjust enrichment.

The court found an enforceable oral agreement where the son received a joint tenancy interest in exchange for undertaking renovations at his own expense.

Alternatively, the court determined that an equal division was not unjust, as the son's contributions were offset by the benefit of his ownership interest and use of the property, and there was no reasonable expectation that the joint tenancy would not be severed or the property sold during the mother's lifetime.

This motion sought approval for the notice of certification and notice plan in a class proceeding concerning toxic mold in housing on Long Lake No. 58 First Nation's reserve.

The court approved the proposed notice, finding it clear and easy to understand, and the opt-out procedure straightforward.

The court also approved the notice plan, which included delivery by mail, posting on Facebook, and at community offices, and confirmed that notice only in English was appropriate given the class members' language.

This motion addressed the conflict between the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and the Rules of Civil Procedure regarding the disclosure of personal information in litigation.

The plaintiff sought to compel the Town of Oakville to disclose the last known addresses of former municipal employees relevant to the case, which the Town refused, citing MFIPPA.

The court ruled that a litigant may obtain a court order for relevant disclosure without first fully exhausting the MFIPPA statutory appeal process, as the Rules of Civil Procedure, particularly the deemed undertaking rule, provide sufficient privacy safeguards.

This decision addresses the costs arising from three related motions in a professional negligence action.

The plaintiff sought to strike a portion of the statement of defence, while the defendants sought production of an unredacted affidavit and removal of plaintiff's counsel.

The court previously ruled that the improvident settlement defence should not be struck and ordered affidavit production (defendants successful on these two), and dismissed the motion to remove counsel (plaintiff successful).

The court determined that the motions should be viewed discretely, not collectively, for costs purposes.

Ultimately, the defendants were awarded net costs of $3,356.19, reflecting their success on two of the three motions.

The applicants brought a preliminary motion (Seepa motion) seeking an order for document production, including medical records and lawyer's files, to ascertain the validity of the deceased's will.

They raised concerns about testamentary capacity, suspicious circumstances, and undue influence.

The respondents opposed, arguing the estate was modest and privacy interests outweighed the need for production, suggesting a resulting trust claim was more appropriate.

The court found the applicants met the low evidentiary threshold for document production, noting the deceased's age, the circumstances of will preparation by a non-lawyer relative, a prior Facebook post by a respondent indicating dementia, and alleged isolation of the applicants.

The motion was granted.

This family law trial concerned the equalization of net family property after the parties had resolved child and spousal support.

The remaining issues were the respondent's claimed date of marriage deduction for a property (the Ailsa property) and whether a $6,000 settlement received by the applicant should be included in her net family property.

The court dismissed the respondent's claim for a date of marriage deduction, finding he failed to discharge his onus of proof with reliable evidence regarding beneficial ownership or value.

The court also found that the applicant's settlement funds were used to repay a loan from her parents and should not be included as an asset.

Consequently, the respondent was ordered to pay the applicant an equalization payment of $41,711.99, with a portion to be paid from funds held in trust from the sale of the matrimonial home.

The Applicant and Respondent both brought motions concerning financial issues, including spousal and child support, disclosure, and property matters.

Key issues for determination included the registration of a Certificate of Pending Litigation (CPL) against a property solely owned by the Respondent, striking the Respondent's pleadings for non-disclosure, and the repayment of funds removed from joint accounts post-separation.

The court ordered the Respondent to repay $25,000 to the Applicant, ordered extensive financial disclosure from both parties (with a focus on the Respondent's corporate and personal finances), and imposed a non-dissipation order on the Respondent's solely owned property, requiring 90 days' notice of sale and deposit of proceeds into a corporate account.

The Applicant's request to strike pleadings and register a CPL was denied, though the Respondent was prohibited from bringing further financial motions without leave until disclosure compliance.

The Brisson defendants brought a motion seeking to reinstate Christian Pilon and Charron Langlois S.R.L. as defendants to their counterclaim, to determine costs thrown away for amendments, and to compel disclosure of certain unredacted documents.

The court granted leave to amend the defence and counterclaim, ordered the reinstatement of both Christian Pilon and Charron Langlois S.R.L. as defendants to the counterclaim, and ordered the production of unredacted partnership agreements, a share purchase agreement, and Christian Pilon's 2015 T4/income tax return/notice of assessment.

Banking records were ordered with appropriate redactions.

The court declined to order costs thrown away, finding it unnecessary at this stage, and awarded partial indemnity costs of $14,000 all-inclusive to the Brisson defendants, noting the moving parties' excessive motion record and unnecessary cross-examination.

The appellant, Gillian Boere, appealed her conviction for sexual exploitation and her 12-month prison sentence.

The trial judge had found her in a position of trust towards the 16-year-old complainant.

The appeal raised three issues: the trial judge's finding of a position of trust, the assessment of the complainant's credibility and reliability, and the dismissal of a constitutional challenge to the mandatory minimum sentence as moot.

The court dismissed both the conviction and sentence appeals, upholding the trial judge's findings on the position of trust, the complainant's credibility, and the appropriate application of the mootness doctrine regarding the constitutional challenge.

The accused, charged with second-degree murder, sought to have the defence of provocation put to the jury.

The court first addressed the constitutionality of the July 2015 amendment to s. 232(2) of the Criminal Code, concurring with R. v. Mujber that the requirement of an indictable offence punishable by five or more years imprisonment violated s. 7 of the Charter and was of no force and effect.

The court then assessed whether there was an air of reality to the provocation defence, considering the four elements: wrongful act or insult, sufficiency to deprive an ordinary person of self-control, the accused acting in response, and acting suddenly before passion cooled.

Despite the accused denying being the shooter, the court found that, taking the defence evidence at its highest, a jury could reasonably infer the elements of provocation, including a wrongful act (brandishing a weapon at a friend) and a sudden reaction, influenced by the accused's recent shooting injury and age.

The defence of provocation was therefore left with the jury.

This ruling addresses whether the defence of "defence of another person" had an air of reality in a second-degree murder trial, meaning it should be put to the jury.

The accused, Donald Musselman, was charged with the murder of Markland Campbell.

The Crown argued against the air of reality, citing the accused's denial of being the shooter and potential inconsistency with a provocation defence.

The court found that despite the accused's denial, there was sufficient circumstantial evidence and reasonable inferences to support the three elements of self-defence (reasonable belief of threat, defensive purpose, reasonable response) to meet the evidential burden for an air of reality.

The judge emphasized resolving doubts in favour of leaving the defence to the jury and that inconsistent defences can both have an air of reality.

The applicant sought a declaration that it had provided a valid and enforceable notice of extension under a 2015 lease.

The court dismissed the application, finding that the applicant and respondent had entered into a new binding agreement on November 24, 2021, which superseded the original lease terms.

Consequently, the applicant could not extend the 2015 lease by notice of extension and was ordered to pay past due rent and costs to the respondent.

The applicant, Randall Devries, sought to exclude evidence obtained by police, arguing that their entry onto his property, subsequent arrest, and vehicle search violated his Charter rights under sections 8 and 9.

The court found that the police were authorized to enter the property to investigate impaired driving complaints, and the arrest and search incident to arrest were lawful.

The application to exclude evidence was dismissed.

This ruling addresses the admissibility and scope of use for intercepted communications in a second-degree murder trial.

The accused, Donald Musselman, and a third-party witness, I.A., both testified that I.A. was the shooter.

The Crown sought to introduce intercepts to rebut this defence, arguing they undermined I.A.'s claim and suggested Musselman directed I.A. to falsely assume responsibility.

The court conducted a probative-prejudicial balancing analysis for numerous intercepts, admitting some for impeachment purposes only, while excluding others due to their highly prejudicial nature, including references to extrinsic criminal conduct and a criminal lifestyle.

The judge declined to admit the intercepts for the truth of their contents as admissions, exercising judicial discretion to ensure overall trial fairness and prevent propensity-based reasoning, given the volume of discreditable conduct evidence.

The applicant mother sought orders regarding parenting time and decision-making for the parties' two children.

The respondent father engaged in a prolonged campaign of coercive control, domestic violence, and false reporting to child protection agencies.

The court found the father's behaviour caused significant emotional harm and instability for the children.

Applying the best interests of the child test under section 24 of the Children's Law Reform Act, the court suspended the father's parenting time until he demonstrates a material change in circumstances through trauma counselling and a mental health assessment.

The court also issued a one-year restraining order against the father and awarded costs to the mother.