B.H. Matheson

In a motion arising from an application relating to municipal council conduct, the court addressed refusals made during examinations for discovery and whether the applicant must disclose the identity of individuals financing the litigation.

Respondent councillors had refused to answer questions about matters discussed during closed municipal council meetings under s. 239 of the Municipal Act.

The court held that in camera municipal meetings are not cloaked with confidentiality and that councillors may be required to disclose what transpired, subject only to solicitor-client privilege.

The court also ordered the applicant to disclose the identity of the person or persons who funded the legal retainer, rejecting claims that solicitor-client or litigation privilege protected the identity of the financiers.

The defendants moved to strike or dismiss a civil action alleging malicious prosecution, negligent investigation, and Charter breaches arising from a police detention following an assault investigation.

The plaintiffs commenced their action more than two years after the incident but argued that the limitation period should be extended under the discoverability rule due to alleged ongoing investigations involving police and a regulatory authority.

The court held that the plaintiffs failed to produce evidence linking later investigations to the incident giving rise to the claim or demonstrating that the claim could not reasonably have been discovered earlier.

Applying the two‑year limitation period under the Limitations Act, 2002, the court found the action was commenced out of time.

The defendants’ motion was granted and the action dismissed.

Following a status hearing in a civil action, the court addressed costs after the plaintiff’s counsel failed to appear and had not responded to repeated correspondence from defence counsel.

The court noted that the plaintiff’s lawyer provided no explanation for the non‑appearance or lack of communication and that such conduct demonstrated disrespect toward both opposing counsel and the court.

While the court had authority under Rule 48.14 of the Rules of Civil Procedure to dismiss the claim, it declined to do so but warned that the plaintiff’s claim was placed in jeopardy.

Taking into account the defendant’s preparation, travel time, and the possibility that some preparation could be reused if the hearing were renewed, the court reduced the requested amount.

Costs of $4,000 inclusive of disbursements and HST were awarded to the defendant.

In a child protection proceeding under the Child and Family Services Act, the Children’s Aid Society sought summary judgment making three children Crown wards without parental access.

The court considered Rule 16 of the Family Law Rules governing summary judgment and the statutory requirements for access to Crown wards under s. 59(2.1) of the Act.

Evidence demonstrated a long history of child protection involvement, sexual abuse by the father resulting in incarceration, and expert assessments indicating the mother lacked capacity to meet the children’s needs.

The court found no genuine issue requiring a trial and concluded that parental access would impair the children’s prospects for adoption.

Summary judgment was granted making the children Crown wards with sibling access but without parental access.

Following a multi-day family trial concerning custody of a child, the court had awarded custody to the father.

The father sought partial indemnity costs of approximately $25,000 for the trial.

The court considered the importance of the custody issue, the parties’ financial disparity, the conduct of the litigation, and a technically non‑compliant offer to settle under the Family Law Rules.

While the offer did not strictly comply with Rule 18(14), it could still be considered under Rule 18(16) in determining costs.

The court concluded that the father had been mostly successful and was entitled to recover his trial costs.

The applicant brought a motion to change an existing family court order governing parenting time.

The parties resolved most issues of access through minutes of settlement but disputed whether the respondent should have mid‑week access during the school year.

After hearing submissions, the court ordered that the respondent have Tuesday after‑school access until 8 p.m., with responsibility for school pickup and return to the applicant’s residence.

The court also required advance notice by text message if the respondent could not exercise the access.

Costs submissions were directed to be filed following the decision.

The applicant sought rectification of a will after the drafting solicitor inadvertently failed to include a bequest of the testator’s residence to the applicant despite receiving explicit instructions to do so.

Evidence included affidavits from the applicant and the drafting solicitor confirming the omission resulted from clerical error during the preparation of the final will.

The court reviewed the equitable doctrine of rectification and the circumstances in which courts may correct drafting mistakes where the testator’s instructions were not implemented.

Relying on Ontario authorities permitting rectification where solicitor error prevents a will from reflecting the testator’s intention, the court found the omission clearly established and unchallenged.

The will was rectified to include the bequest of the residence to the applicant.

The applicant and respondent separated after a long relationship involving chicken farming.

The applicant claimed that a barn and chicken quotas registered in the respondent's name were held in trust for him or that she was unjustly enriched.

The court found no evidence of an express trust and no unjust enrichment, as the respondent had financed and worked for her own assets.

The court ordered the applicant to pay an equalization payment of $55,798.83, granted joint custody of their child with primary residence to the respondent, and ordered the applicant to pay $600 per month in child support.

The applicant sought enforcement and security for spousal support obligations after the respondent repeatedly failed to comply with court-ordered financial disclosure and support payments in protracted family litigation.

The record demonstrated a pattern of nondisclosure, including failure to reveal income sources, motor vehicle accident claims, and billing practices, despite numerous prior orders requiring disclosure.

Relying on the court’s authority under the Courts of Justice Act and s. 34 of the Family Law Act, and applying principles from appellate authority governing vesting orders, the court found that the respondent’s conduct demonstrated that support obligations were unlikely to be complied with absent intrusive enforcement measures.

The court struck the respondent’s pleadings for non-compliance and granted a vesting and security order over the matrimonial home to secure spousal support.

Additional disclosure and enforcement orders were made, along with costs against the respondent.

Following a jury trial arising from a motor vehicle accident, the court determined the appropriate costs consequences where the plaintiffs obtained a judgment significantly less favourable than the defendant’s Rule 49 offer to settle.

The plaintiffs recovered limited damages after the statutory deductible reduced the award.

The court considered whether Rule 76 simplified procedure should have been used and concluded it was reasonable for the plaintiffs to proceed under the ordinary procedure due to the complexity of the case and expert evidence.

Applying Rule 49.10(2), the plaintiffs were awarded partial indemnity costs up to the date of the defendant’s offer, and the defendant was awarded partial indemnity costs thereafter.

Substantial indemnity costs were refused because there was no reprehensible conduct.

The applicant shareholder brought a motion under s.248 of the Business Corporations Act seeking relief arising from alleged oppressive conduct and persistent non-compliance with prior court orders by the respondent shareholder and director of two corporations.

The court reviewed the history of litigation, including earlier orders requiring equalization of shareholder investment and corporate governance measures.

The evidence demonstrated that the respondent had ignored multiple court orders, failed to produce required financial disclosure, and engaged in conduct undermining the corporations’ operations.

Applying the oppression remedy principles under the OBCA, the court exercised its broad discretion to rectify the situation.

The respondent was removed as director and officer, the applicant was vested with sole control of the corporations subject to accounting obligations, and additional financial and disclosure orders were imposed.

In a child protection proceeding under the Child and Family Services Act, the moving party sought interim supervised access to a child pending the hearing of an appeal from a Crown wardship order.

The motion also requested leave to file fresh affidavit evidence.

While the additional affidavits were not opposed, the court declined to vary the existing order denying access.

Applying s. 59(2.1) of the Act and relevant appellate authorities, the court emphasized that access to a Crown ward requires proof that the relationship is both beneficial and meaningful to the child and will not impair adoption prospects.

Given the impending appeal and the risk of disrupting the child’s welfare shortly before the appeal hearing, the court held it was preferable to leave the matter to the appeal judge.

Following dismissal of the plaintiff’s employment-related claim under the Simplified Procedure, the court determined costs.

The defendant sought costs based on the plaintiff’s litigation conduct, including refusal to consent to a pleading amendment, late service of materials, failure to comply with procedural timelines, and conduct that caused adjournment of the trial.

The court considered the discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, along with the parties’ settlement offers under Rule 49.

The court found the plaintiff’s conduct lengthened the proceedings and warranted costs above partial indemnity.

Costs were fixed in favour of the defendant in the amount of $38,000 inclusive of disbursements and HST.

The court determined the issue of costs in a long-running family law proceeding involving access to children after the respondent’s pleadings had been struck.

The respondent relied on Rule 24(10) of the Family Law Rules, arguing costs should have been decided promptly after each step.

The court found that costs had been adjourned to allow the self‑represented respondent an opportunity to retain counsel and that no earlier opportunity existed to assess them.

Reviewing the bill of costs and the procedural history, the court concluded the matter was not complex but had been prolonged by the respondent’s conduct.

Costs were awarded to the applicant in the amount of $8,500 inclusive of disbursements and HST.