Susan Adam Metzler

The plaintiff S.M. brought a motion to strike his jury notice, filed in 2014, seeking to proceed with a judge-alone trial in March 2021 due to anticipated delays in jury trials caused by the COVID-19 pandemic.

The primary defendant, Ero Longo, opposed the motion.

The court applied the "justice better served" test, considering factors such as the substantive right to a jury trial, the extent of delay, and the practicalities of trial scheduling.

The court found that a six-month delay to an October 2021 jury trial blitz was not unconscionable, especially given the plaintiff's own delays in the action and the availability of retrofitted court facilities.

The plaintiff failed to demonstrate sufficient prejudice beyond delay or that a judge-alone trial would better serve justice.

The motion was dismissed, the March 2021 trial dates were vacated, and the case was placed on the October 2021 trial blitz for an in-person jury trial.

The issue of striking the jury was left open for future reconsideration if the October trial does not proceed.

The plaintiffs brought a motion to certify a class action against the Royal Winnipeg Ballet and a former instructor/photographer, Bruce Monk.

The plaintiffs alleged that Monk took intimate photographs of students in private settings and disseminated them without consent, constituting sexual assault, breach of fiduciary duty, and invasion of privacy.

The court found that the pleadings disclosed causes of action, there was an identifiable class, and there were 23 common issues.

The court also found that a class proceeding was the preferable procedure and that the representative plaintiffs were suitable.

The certification motion was granted.

During a family law trial, it was discovered that the applicant had communicated with her counsel about her evidence and the issues in the case while under cross-examination.

The court found that this improper communication fatally wounded the trial process and prejudiced the respondent's ability to conduct a fair cross-examination.

As no other curative measures would suffice without prejudicing the applicant, the court declared a mistrial.

The court also ordered terms, including the immediate listing of the matrimonial home for sale and the withdrawal of Statements of Arrears filed with the Family Responsibility Office.

The plaintiff sought to admit the evidence of Dr. Kerry Smith, a mental health clinician who provided therapy to the plaintiff in prison, as a participant expert in a civil action for damages for alleged sexual abuse.

The court ruled on the admissibility and scope of Dr. Smith's evidence, qualifying him as an expert and finding his evidence relevant to psychological harm and the occurrence of abuse.

The court applied the "participant expert" framework from Westerhof v. Gee Estate, allowing testimony based on observations, impressions, and treatment documented in his reports, but precluding opinions extending beyond these limits without compliance with Rule 53.03.

This endorsement addresses the costs of motions brought by both parties, which involved parenting and procedural issues.

The court found that neither party achieved clear success on the parenting issues, and success was divided on procedural matters.

The respondent sought partial or substantial indemnity costs, while the applicant sought substantial indemnity costs, alleging bad faith by the respondent.

The court declined to find bad faith, noting that both parties contributed to the procedural wrangling and conflict.

Despite the applicant making a timely offer to settle, the court concluded that neither party should be vindicated by a costs award.

Consequently, no costs were awarded to either party for the motions.

At a trial management conference in a long-running family law proceeding, the court addressed trial preparation, disclosure issues, expert reports, and scheduling.

The dispute involved claims for equalization of net family property, an unequal division of property, constructive trust, spousal support, residual child support issues, and costs.

The court emphasized the proportionality principle under Rule 2.09 of the Family Law Rules and rejected the applicant’s intention to call an excessive number of witnesses.

Directions were issued concerning the delivery of expert reports, appraisal access to the matrimonial home, disclosure of financial records, and the use of will-say statements.

The court set a 20‑day trial beginning May 3, 2015 and imposed procedural orders to ensure efficient trial management.

The applicant, an Italian court-appointed interim guardian for an incapable retired priest, sought an order that the Ontario court decline jurisdiction over his guardianship.

The respondents, who held powers of attorney and sought to be appointed guardians in Ontario, argued that Ontario had jurisdiction based on the priest's connections to Canada and Canon Law.

The court determined that the priest had abandoned his Canadian domicile of choice and reverted to his Italian domicile of origin before becoming incapable.

Consequently, the court declined jurisdiction, deferred to the Italian court, and terminated the powers of attorney as they were executed while the priest was incapable.