Alexander D. Kurke

A subcontractor sued the general contractor for breach of contract after flooring work on a hospital project became impossible due to defects in the underlying sub-floor structure.

The subcontractor alleged the contractor failed to provide a stable and properly prepared substrate, causing telegraphing and other failures in installed sheet vinyl flooring.

The contractor counterclaimed for completion costs after terminating the subcontractor and hiring a replacement.

The court held that a contractor has an implied obligation to provide a site capable of receiving the subcontractor’s work and found the sub-floor defects, including structural movement and improper preparation, prevented successful installation.

The subcontractor did not abandon the contract; rather, the contractor breached by failing to remedy known defects and insisting the work proceed.

Damages were awarded to the subcontractor with limited set‑off for specific materials.

The appellant appealed a decision of the Animal Care Review Board confirming the removal of her horses and a goat by the Ontario Society for the Prevention of Cruelty to Animals (OSPCA) due to chronic distress.

The Superior Court of Justice conducted a new hearing and found that the animals were in distress, lacking proper food, water, and veterinary care, and that the appellant had failed to comply with previous OSPCA orders.

The court upheld the removal and ordered the appellant to pay $62,554.53 in maintenance costs, deducting the costs for two horses that were mistakenly omitted from the removal notice.

Following a motion in which the moving party obtained only partial success, the court considered written submissions regarding costs.

The moving party had succeeded on one of three orders sought, specifically striking the responding party’s response to a request to admit, but failed on the remaining requests.

The court found that the responding party’s response to the request to admit was an improper blanket refusal that frustrated the purpose of the rule, while other relief sought by the moving party was unsuccessfully pursued.

In light of the divided success and the circumstances of the improper response, the court declined to award costs to either side.

The plaintiff brought a motion seeking to set aside a 2008 consent order dismissing the action against one defendant, alternatively seeking to estop the remaining defendant’s estate from asserting the deceased homeowner’s mental incompetence as a defence under the Occupiers’ Liability Act, and seeking to strike a response to a request to admit.

The court held that Rule 59.06(2)(a) did not justify setting aside the consent order because the alleged new facts were discoverable with reasonable diligence, the motion was brought after substantial delay, and reopening the matter would prejudice the dismissed defendant.

The court also rejected estoppel by convention, finding no ongoing shared assumption about competence after correspondence clarified the issue early in the litigation.

However, the court found that the estate’s blanket refusal to admit facts without reasons contravened Rule 51.03(3)(b).

The response to the request to admit was therefore struck and the estate was ordered to provide a proper response.

The offender was sentenced following convictions for sexual interference, invitation to sexual touching, making sexually explicit material available to a person under 16, and exposing genitals to a person under 16 involving a child known to him through a familial relationship.

The abuse occurred repeatedly over many months while the child was being babysat by the offender’s spouse.

The court emphasized denunciation and deterrence under ss. 718 and 718.01 of the Criminal Code, noting the offender’s lengthy historical record for sexual offences involving children and his failure to accept responsibility.

Although the offender relied on age, health issues, and family dependency as mitigating factors, the court found the aggravating circumstances—including breach of trust, grooming behaviour, and severe psychological harm to the victim—required a significant penitentiary term.

A sentence of six years’ imprisonment was imposed along with lifetime prohibitions and sex offender registration.

The accused applied under s. 462.34 of the Criminal Code for the return of seized funds alleged to be proceeds of crime in order to pay legal expenses in defending drug trafficking and proceeds charges.

The Crown argued the accused should first seek Legal Aid funding before accessing the seized funds.

The court held that while Legal Aid is a relevant consideration, an application for Legal Aid is not a mandatory prerequisite where the accused has a reasonable basis to retain chosen counsel and lacks other assets.

The court authorized limited release of the seized funds to pay reasonable legal fees at reduced hourly rates and set a capped budget for defence costs.

The order included strict conditions governing the transfer, use, and potential taxation of legal fees.

The accused applied for leave to cross‑examine the affiant of an Information to Obtain supporting a Part VI authorization, intending to challenge the authorization through a Garofoli application.

The accused argued that the police agent’s reliability problems and alleged investigative failures undermined the grounds relied upon in the ITO.

The court reviewed the governing principles from Garofoli and subsequent authorities requiring a reasonable likelihood that cross‑examination would elicit evidence capable of undermining a precondition to the authorization.

After reviewing numerous proposed areas of questioning relating to the agent’s credibility, background, and post‑authorization conduct, the court concluded they concerned minor matters, speculative issues, or information arising after the authorization was granted.

The court held that cross‑examination would not assist in discrediting the grounds for the authorization.

This was a costs-only decision following a successful Rule 58.11 hearing in which the client obtained an order directing a new costs assessment because she had been denied natural justice at the initial assessment.

The court applied s. 131 of the Courts of Justice Act and the Rule 57.01 factors, reduced claimed counsel fees as disproportionate for a brief and straightforward matter, allowed the listed travel and other disbursements, and rejected compensation for the client's own time due to lack of evidence of opportunity cost.

The court also considered the solicitor's conduct at the earlier assessment as relevant to costs.

Costs were fixed, all-inclusive, at $6,000.

The accused was tried on multiple child sexual offence counts arising from alleged misconduct toward a child during a babysitting arrangement in the family home.

Applying the W.(D.) framework, the court accepted the complainant's evidence, as supported by the mother's narrative and significant corroboration from forensic computer evidence showing deleted pornographic folders matching the complainant's description.

The court rejected the accused's and spouse's evidence as concocted, implausible, and unreliable.

The court further held that the accused showed sexually explicit material for the subjective purpose of facilitating the sexual offences, amounting to grooming within the meaning of the facilitation language discussed in Legare.

Guilty verdicts were entered on all five counts.

The client brought a motion to oppose the confirmation of a Report and Certificate of Assessment regarding her former solicitor's account.

The client, who was self-represented at the assessment hearing, argued she was denied natural justice because the Hearings Officer did not allow her to make closing submissions.

The Superior Court of Justice agreed, finding that the Hearings Officer failed to assist the self-represented client and explicitly prevented her from making submissions on the ultimate issue, thereby violating the audi alteram partem rule.

The Report and Certificate of Assessment, along with related enforcement mechanisms, were set aside, and the matter was remitted for a new hearing before a different Hearings Officer.

The accused, charged with drug trafficking and facing a potential four-year penitentiary sentence, applied for a Rowbotham order for state-funded counsel after being denied Legal Aid due to his WSIB pension slightly exceeding the financial cut-off.

The court found that the accused lacked the means to retain counsel and that the complexity of the case, combined with the serious potential consequences, required representation to ensure a fair trial.

The application was granted, and a conditional stay of proceedings was ordered until state funding for counsel is arranged.

The respondent son brought a motion to disqualify the applicant's solicitor due to a conflict of interest.

The solicitor had previously acted for the respondent mother in the transfer of her property, but was now representing the applicant in an application to declare the mother incapable of managing property.

The court found that the solicitor was in a conflict of interest because he was attacking the legal work done during the first retainer and could potentially be called as a witness regarding the mother's capacity.

The motion was granted and the solicitor was removed as counsel.

The plaintiff sued the estate of a deceased neighbour for sexual batteries, threats, and harassment arising from incidents in 2002 or 2003 and January 2004.

The court held that, because the action proceeded against an estate, s. 13 of the Ontario Evidence Act required corroboration of the plaintiff's evidence by other material evidence.

Corroboration was found for the January 2 and January 3, 2004 sexual batteries and the subsequent harassment, including prompt complaint evidence, hospital observations, physical injuries, and independent observations of the defendant's post-incident conduct.

The earlier 2002 or 2003 allegation was dismissed for insufficient corroboration and, in any event, as outside the limitation period.

The plaintiff was awarded $45,000 for sexual battery, $5,000 for harassment, pre-judgment interest, and substantial indemnity costs of $8,500.

The plaintiffs commenced a civil action against the Landlord and Tenant Board alleging errors in its handling of a lease-option dispute after an adverse tribunal ruling.

The court, proceeding under Rule 2.1.01 of the Rules of Civil Procedure, found the claim facially frivolous and abusive because the plaintiffs had already exercised their statutory appeal to the Divisional Court, which upheld the tribunal's decision.

The court also noted the statutory immunity in s. 232(1) of the Residential Tenancies Act, 2006 for acts done in good faith.

The action was dismissed as an impermissible attempt to relitigate issues already decided.