A.D.K. MacKenzie

The defendants brought a motion to strike the plaintiffs’ motion seeking production of documents from non-parties and to quash a summons requiring a non-party to attend for examination.

The action had already been set down for trial after the plaintiffs served a trial record.

The court held that under Rule 48.04(1) of the Rules of Civil Procedure, a party who has set an action down for trial cannot initiate further discovery or related motions without leave of the court, absent exceptional circumstances.

The plaintiffs failed to seek leave and did not establish any substantial or unexpected change in circumstances justifying further discovery.

The summons to the non-party was also non‑compliant with Rule 34.03 because it required attendance in a different region from the witness’s residence.

A costs endorsement arising from a motion under Rule 7.08 seeking court approval of a minor’s settlement relating to statutory accident benefits following a catastrophic motor vehicle injury.

The settlement totalled $1,275,000, including a structured annuity and funds used to purchase a residence for the injured minor.

The Office of the Public Guardian and Trustee raised concerns regarding the reasonableness of counsel’s fees and recommended a reduction.

After reviewing supplementary evidence and considering the factors under Rule 57.01 of the Rules of Civil Procedure, the court concluded that fees representing 17.14 percent of the settlement were fair and reasonable given the complexity and duration of the litigation.

Following a 23‑year marriage, the parties disputed the appropriate quantum of indefinite spousal support.

Entitlement was not contested, but the payor spouse argued income should be imputed to the recipient spouse because she had made insufficient efforts toward economic self‑sufficiency after separation.

The court considered the objectives of spousal support under the Divorce Act, including the promotion of self‑sufficiency, and the principles governing imputation of income.

Finding that the recipient spouse had not made reasonable efforts to obtain employment or retraining, the court imputed income at $20,000 per year.

Applying the Spousal Support Advisory Guidelines, the court reduced the monthly support obligation from $2,900 to $2,000 and ordered that the obligation be secured by life insurance.

The plaintiffs brought motions seeking leave to vacate a certificate of trial readiness under Rule 48.04(1) of the Rules of Civil Procedure, amend their statement of claim under Rule 26.01, and conduct examinations for discovery of the defendants.

The underlying action arose from a slip and fall on an allegedly unstable concrete slab at the entrance of a residential property purchased from the developer and builder defendants.

The court found that the suspension of the plaintiffs’ former counsel by the Law Society constituted an unexpected change in circumstances justifying leave to vacate the certificate of readiness for trial.

However, the proposed amendments were refused because they introduced a new cause of action based on contractual allegations that would cause non-compensable prejudice and raise limitation period issues.

The court permitted the plaintiffs to proceed with examinations for discovery of the defendants, with the plaintiffs responsible for the costs of such discoveries in any event of the cause.

In an undefended civil action, nightclub patrons sought damages after one plaintiff was assaulted by unidentified customers on the premises.

The court proceeded under the Rules of Civil Procedure after striking the defence and jury notice for non-compliance with a prior order requiring corporate defendants to appoint counsel or obtain leave for representation.

Liability was effectively established on deemed facts grounded in alleged breaches of occupiers' and liquor-service duties.

The court awarded non-pecuniary damages, past income loss, and Family Law Act damages, plus partial indemnity costs and pre- and post-judgment interest under the Courts of Justice Act.

The respondent moved to quash the appellant's appeal to the Divisional Court on the basis that the appellant failed to comply with previous court orders requiring financial disclosure and payment of costs.

Applying the three-part test under Family Law Rule 14(23), the court declined to exercise its discretion in favour of the non-complying appellant given her history of non-compliance.

However, recognizing the importance of the core issue on appeal, the court ordered that the appeal would be quashed only if the appellant failed to pay the outstanding costs and provide the required disclosure by specified dates.

The tenant appealed an interim eviction order of the Landlord and Tenant Board, which had severed her rent abatement claims under s. 82 of the Residential Tenancies Act from the landlord's eviction application.

The landlord brought a motion to quash the appeal on the basis that it did not raise a question of law.

The Divisional Court dismissed the tenant's motions to amend her notice of appeal and strike an affidavit.

The court held that the Board did not err in law in its interpretation and application of sections 82 and 83 of the Act.

The landlord's motion to quash the appeal was granted and the stay of eviction was vacated.

The appellant bank appealed from Small Claims Court decisions where the trial judges declined to award contractual interest and pre-proceeding collection expenses on uncontested credit card debt claims.

The Divisional Court allowed the appeals, holding that pre-proceeding collection expenses calculated as a fixed percentage of the debt constitute a liquidated demand for money.

The Court also held that, absent exceptional circumstances, pre-judgment and post-judgment interest must be awarded at the rate stipulated in the credit card agreement.

The applicant moved to set aside the Registrar's order dismissing his application for judicial review for delay.

The applicant had filed a duty of fair representation complaint against his union two years after his dismissal, which the Ontario Labour Relations Board dismissed for delay.

The applicant then delayed in serving his application for judicial review and adding the Board as a party.

The Divisional Court applied the three-part test from Chiu and found that while the applicant had a bona fide intention to comply, he failed to provide a reasonable explanation for the delay.

Furthermore, the justice of the case did not require an extension as the Board's decision was not patently unreasonable.

The motion was dismissed.

The applicant sought leave to appeal a decision of the Agriculture, Food and Rural Affairs Appeal Tribunal, which denied her request to designate her property as 'Farm Property Class' for reduced tax rates.

The Tribunal found she failed to meet the minimum gross farm income requirement and did not qualify for an exemption due to an unusual production year.

The Divisional Court dismissed the application for leave, finding that the applicant's grounds of appeal raised factual issues rather than questions of law.

The appellant municipality appealed a Small Claims Court judgment finding it liable in negligence after a branch from a municipally-owned tree fell on the respondent's leased vehicle.

The Divisional Court upheld the finding of liability, concluding the trial judge made no palpable and overriding error in finding the municipality had notice of the hazard.

However, the court allowed the appeal regarding damages, reducing the award from $10,000 to $4,314.88, as the costs associated with the respondent's voluntary early termination of the vehicle lease lacked a sufficient nexus to the municipality's negligence.

The appellant appealed a decision of the Assessment Review Board regarding the property tax assessments for a shopping mall for the 1996 and 1997 taxation years.

The appellant argued the Board erred by failing to use a recent arm's length sale price as the best evidence of market value, and by applying a 'current value' approach rather than a 'market value' approach.

The Divisional Court held that the Board's treatment of the recent sale was a question of mixed fact and law and thus not appealable.

However, the Court found the Board erred in law by applying a 'current value' (unencumbered fee simple) approach, which was introduced by 1997 amendments not applicable to the years in question.

The appeal was allowed and the matter remitted to the Board for redetermination based on the correct 'market value' test.