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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Criminal Law

TOBACCO OFFENCES

Mandatory for prohibition order to be issued after two convictions

Applicant’s owner was charged with selling cigarettes to minor and pled guilty and paid fine. Applicant received notice of non-compliance that made it clear two convictions in five years could lead to automatic prohibition from selling tobacco products. Weeks later, applicant’s employee was charged with, and pled guilty to, selling cigarettes to minor. As a result, applicant was charged under s. 3(1) of Smoke-Free Ontario Act and sent notice of non-compliance. Applicant pled guilty and paid fine. Appeal periods for three charges were long expired. Minister issued prohibition order to applicant, which prohibited it from selling tobacco products for six months. Motion by applicant for stay of prohibition order pending appeal and application for judicial review. Motion dismissed. There was no serious issue to be tried. Section 16(2) of Act made it mandatory for Minister to issue prohibition order after two convictions; there was no discretion and thus, no decision. Applicant had right to hearing and appeal upon being charged. Section 7 of Canadian Charter of Rights and Freedoms did not apply to corporations and economic rights. Applicant was expected to know Regulations and chose to proceed without legal advice, despite notice of consequences. Sale of tobacco to minors was serious issue and six-month prohibition after two convictions was not arbitrary, overbroad or grossly disproportionate, nor was it cruel and unusual punishment or a secondary sentence.
1251553 Ontario Inc. v. Ontario (Minister of Health and Long-Term Care) (Aug. 19, 2014, Ont. S.C.J., H.S. Arrell J., File No. St. Catharines 55240/14) 244 A.C.W.S. (3d) 270.

Civil Procedure

JOINDER

Affidavit did not support cause of action against employees as proposed defendants

Plaintiff brought motion to add two lawyers and law firm as additional defendants and to add two employees of doctor as defendants. Plaintiff sought to add estate as additional plaintiff and to claim wrongful death of deceased. Plaintiff sought to convert action to class action. Plaintiff sought leave to increase amount of her claim from $1 million to $100 million. Plaintiff sought permanent injunction restraining doctor or his staff or any person at law firm from having contact with plaintiff. Plaintiff sought order against doctor enjoining him from practising medicine. Plaintiff’s request for order that she be heard by teleconferencing or Skype was considered and order was made for all parties to appear in person when motion was heard. Plaintiff did not appear in person. Plaintiff’s written request for adjournment was dismissed. Plaintiff was deemed to have abandoned motion. Parts of motion would have been dismissed in any event for lack of evidence or for reasons that relief requested was contrary to law or Rules of Civil Procedure (Ont.). It was premature to seek leave with respect to testimony of experts for any reason in action. Plaintiff did not attach amended statement of claim to her materials containing precise allegations or showing how any claim could be made against proposed defendants. Affidavit material did not support any cause of action against employees as proposed defendants. There was no evidence that estate trustee consented to add estate as plaintiff. Plaintiff was sole plaintiff and Class Proceeding Act, 1992 (Ont.), did not apply. Plaintiff provided no evidence as basis for increasing amount of damages claimed. Supporting affidavit did not establish serious question to be tried in action that would support claim for injunctive relief. Court had no jurisdiction to make order for injunction prohibiting doctor from practising medicine.
Miller v. Turliuk (Aug. 25, 2014, Ont. S.C.J., Emery J., File No. 2598/13) 244 A.C.W.S. (3d) 46.

Damages

MALICIOUS PROSECUTION

Defendant lied to police to cover up his own negligence

Plaintiff drove to gas station to fill his tire and saw area marked off by cones for fuel truck. Plaintiff drove through what he saw was open lane and defendant fuel truck driver waved plaintiff to a stop, put his legs in contact with plaintiff’s bumper and then reported plaintiff to police for striking him. As a result, plaintiff was charged with mischief and dangerous driving and commenced action against defendant alleging malicious prosecution to which defendant did not respond. Motion by plaintiff for default judgment for legal fees and rent for accommodation for six months because charges prevented him from entering United States where he had bought home. Motion granted. Defendant initiated and was instrumental in criminal proceedings against plaintiff, and plaintiff was acquitted so proceedings were clearly terminated in his favour. Plaintiff established defendant lacked subjective basis for making complaint and evidence described man who was angry and vindictive at what he saw as plaintiff’s disregard for his cones. Defendant lied to police to cover up his own negligent cone placement and plaintiff did nothing more than drive through what he saw as open lane and stop to avoid defendant. Improper purpose and malice established. Plaintiff granted judgment for $23,866.37.
Drainville v. Vilchez (Jul. 4, 2014, Ont. S.C.J., P.H. Howden J., File No. Newmarket CV-12-110766-00) 242 A.C.W.S. (3d) 986.

Contempt of Court

GROUNDS

No defence that order was improper and should not have been granted

Defendant’s employment was terminated for refusing to undergo background check. Defendant then embarked on e-mail campaign with former employer that culminated in threats and conduct akin to extortion. Defendant told plaintiffs that if they did not pay her significant amount of money, she would issue press release disclosing plaintiffs’ confidential business methods and disparaging their business reputation. Plaintiffs obtained ex parte injunction that prohibited defendant from publishing press release. Defendant did not comply with order and issued press release. Plaintiffs’ confidential information was widely disclosed over internet. Plaintiffs brought motion to find defendant in contempt of court order. Motion granted. Court was satisfied beyond reasonable doubt that defendant breached court order. It was no defence to motion for contempt to argue that order was improper and should not have been granted. Defendant had full knowledge of court order. Court order was clear and was ongoing. Defendant’s actions were deliberate and intentional. Defendant took no steps to stop press release. Defendant knowingly and willingly breached letter and spirit of court order.
Ceridian Canada Ltd. v. Azeezodeen (Jun. 24, 2014, Ont. S.C.J., E.P. Belobaba J., File No. CV-14-10552-CL) 242 A.C.W.S. (3d) 800.

Contempt of Court

GROUNDS

By unilaterally transferring schools without consent of father mother willfully breached order

Mother taught at elementary school in Brampton. Mother saw that daughter was having social problems at school in Mississauga, and younger son was having academic difficulties. Mother unilaterally transferred children from school in Mississauga to her school in Brampton. Mother claimed she tried to contact father week earlier by phone but he became angry and hung up. Father had recently re-located home to be closer to children’s home and Mississauga school in order to reduce travel time during access visits. Court order required parties to bring any dispute regarding custody or access, including children’s education, to court for resolution if it could not be resolved by mediation. Father brought motion to have mother found in contempt of court order. Motion granted. By unilaterally transferring children’s schools without consent of father who shared custody and without leave of court, mother wilfully breached court order. Limited evidence did not allow court to assess whether transfer of children to new school was necessary or appropriate. Transfer added to distance father and children were required to travel when he exercised access and it deprived father of opportunity to challenge mother’s decision that transfer of schools was in children’s best interests. Court was reluctant to order further change in schools until Office of Children’s Lawyer (OCL) provided assessment. Mother’s unilateral transfer of children to new school in violation of court order with negative impact to father’s access was material change of circumstances that required fresh consideration of what arrangements were in children’s best interests. Order was varied. Pending assessment by OCL, it was in children’s best interests that negative impact of transfer on father’s access be remedied by interim variation of older son’s residence to father and increase in father’s weekend access to two other children.
Skura v. Fibingr (Feb. 14, 2014, Ont. S.C.J., Price J., File No. Brampton FS-08-3792) 241 A.C.W.S. (3d) 326.

Appeal

GROUNDS

Not clear what acts trial judge found rose to level of insubordination, recklessness and/or gross negligence

Parties entered into contract where plaintiff was appointed property management company. Defendant condominium corporation terminated agreement for cause. In Small Claims action, plaintiff sought damages of $8,303.24 from defendant for breach of contract. Trial judge found that collectively grounds relied on by defendant were sufficient to constitute insubordination, recklessness and/or gross negligence that entitled defendant to terminate agreement without notice. Claim was dismissed. Plaintiff appealed. Appeal allowed. Trial judge’s reasons were not sufficient. What was decided was unclear. It was not clear what acts or omissions trial judge found collectively rose to level of insubordination, recklessness and/or gross negligence. Trial judge did not provide answers as to why he made finding. There was no window into decision to allow for meaningful appellate review.
Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231 (Jun. 16, 2014, Ont. S.C.J., David L. Edwards J., File No. CV-13-39-00) 241 A.C.W.S. (3d) 262.

Constitutional Law

DISTRIBUTION OF LEGISLATIVE AUTHORITY

By-law did not impact or intrude on core of federal power

Applicant operated aerodome in respondent city. Applicant had been undertaking number of improvements to aerodome that involved use of fill. Applicant refused to comply with city’s by-law because aerodomes fell under federal jurisdiction and by-law did not apply to it. Parties brought competing applications. Application judge declared that by-law was valid and binding on applicant in respect to landfill activities. Applicant appealed. Appeal dismissed. Application judge undertook relevant analysis in determining whether interjurisdictional immunity applied. Application judge correctly characterized by-law. Real issue was whether by-law impermissibly trenched on core of federal aeronautic power. Effect of by-law was not to improperly intrude into development of aerodrome qua aeronautical enterprise. By-law was designed to regulate quality of fill and prevent use of toxic or contaminated fill in city. By-law did not impact or intrude on core of federal power.
Burlington Airpark Inc. v. Burlington (City) (Jun. 13, 2014, Ont. C.A., J.C. MacPherson J.A., Janet Simmons J.A., and E.E. Gillese J.A., File No. CA C57908) Decision at 234 A.C.W.S. (3d) 896 was affirmed.  241 A.C.W.S. (3d) 106.
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