Brian W. Abrams

The Director of the Motor Vehicle Accident Claims Fund sought to stay the proceeding on the basis that the plaintiff, Gerald Heron McKee, was mentally incapable of commencing the action, or in the alternative, to have a litigation guardian appointed or to require a capacity assessment.

The court found that the presumption of capacity had not been rebutted by compelling evidence and dismissed the motion, emphasizing the importance of autonomy and privacy for litigants and the high threshold for court intervention in counsel's assessment of client capacity.

The applicant initiated proceedings seeking property division, exclusive possession, and partition and sale of a jointly owned residence.

The central issue was determining the parties' date of separation, as the applicant initially pleaded December 8, 2020, but later asserted August 2015.

The respondent, represented by the Public Guardian and Trustee (PGT) due to incapacity, could not confirm the date.

The court applied the corroboration requirement under s. 14 of the Ontario Evidence Act for claims against an incapable party.

Based on objective medical records and financial evidence, the court rejected the applicant's revised date and found the date of separation to be December 8, 2020.

The plaintiffs brought a motion for a status hearing to extend the time to set down a 2016 action for trial and to timetable remaining litigation steps, arguing an acceptable explanation for delay and no non-compensable prejudice to the defendants.

The defendants, including Inez Antonio and the Nialund defendants (Gore Mutual Insurance Company and Nialund Properties Limited), opposed the motion, with Inez Antonio bringing a cross-motion to dismiss for delay.

The court granted the plaintiffs' motion, finding their explanation for delay adequate and the defendants' assertions of prejudice unsupported, noting the defendants' passivity in the litigation.

The cross-motion was dismissed.

This family law trial addressed three main issues: the regular parenting schedule, the respondent's alcohol consumption during parenting time, and the children's contact with a third party.

The applicant sought an asymmetric shared parenting schedule, mandatory alcohol monitoring for the respondent, and restrictions on contact with Ms. Foy.

The court affirmed the existing equal-time parenting schedule, finding it promoted the children's best interests and stability.

It ordered the respondent to abstain from alcohol during parenting time and use an alcohol monitoring device for one year due to past breaches of court orders and lack of insight into the impact of his drinking.

The request for restrictions on contact with Ms. Foy was dismissed, as the court found it overreaching and lacking sufficient evidentiary basis, noting Ms. Foy was not a party to the litigation.

The applicant sought to vary child support and reduce arrears, claiming a material change in circumstances and undue hardship.

The respondent opposed and brought a cross-application for financial disclosure, variation of child support, and reimbursement for Section 7 expenses.

The court found the applicant intentionally unemployed/underemployed, had access to significant income, and failed to provide full financial disclosure despite multiple orders.

The applicant's claims were dismissed.

The court imputed income to the applicant, ordered her to pay substantial child support arrears and ongoing support, and to secure health benefits and life insurance for the child.

The applicant sought a declaration that Schedule Y5 of a subdivision agreement, which mandated the perpetual operation of a golf course on its property, was ultra vires, invalid, and unenforceable.

The court rejected all of the applicant's legal arguments, finding that the municipality had statutory authority to enter into the agreement, the agreement was enforceable as a contract binding on successors, it did not create contingent interests in land subject to the rule against perpetuities, and it did not amount to a constructive taking.

However, acknowledging the golf course's financial unviability, the court adjourned the application for 120 days and directed the parties to engage in mediation to seek a resolution under the agreement's amendment clause.

The defendants brought a motion for an order requiring the plaintiff to post security for costs on a pay-as-you-go basis, asserting the plaintiff was ordinarily resident outside Ontario.

The court found persuasive evidence supporting the defendants' contention, noting the plaintiff's weak rebuttal evidence and refusal to be examined.

Considering the serious allegations of collusion, fraud, deceit, and conspiracy made by the plaintiff against the defendants, and the potential for substantial indemnity costs if the claims were dismissed, the court determined it would not be unjust to order security for costs.

The motion was granted, and the plaintiff was ordered to post security for the defendants' partial indemnity costs.

The Respondent mother brought a motion challenging Ontario's jurisdiction to determine parenting issues for her child, Alessa, arguing Nunavut was the proper forum.

The court found that the child's habitual residence remained Nunavut, as the mother's trip to Ottawa with the child was exploratory and not a permanent relocation.

The Applicant father's unilateral withholding of the child was deemed a tactical self-help remedy that did not alter the child's habitual residence.

The court dismissed the Applicant's claim to jurisdiction, ordered the immediate return of the child to the Respondent, and directed police assistance if necessary for the child's return to Nunavut.

The applicant sought to change the parenting schedule to a week-about or two-overnight plan and formalize holidays due to a move.

The respondent cross-moved for a more modest change (one additional overnight) and sought child support and s. 7 expenses.

The court dismissed the applicant's motion and granted the respondent's cross-motion, maintaining the status quo parenting schedule with a minor adjustment and ordering child support and pro rata s. 7 expenses, primarily based on the children's expressed wishes and the impracticality of the applicant's proposed travel.

The plaintiffs, Grant A. Hood Holdings Inc. and Grant A. Hood, brought a motion seeking unfettered access to the books and records of Hodero Holdings Ltd. and Cade Management Ltd., including real-time online access to QuickBooks, source documents, and the Hodero email server, as well as further affidavits of documents from the defendants.

The court granted real-time QuickBooks access with shared costs, allowed on-site inspection of hard copy source documents with shared conversion costs, but denied broad access to the Hodero email server, finding no legitimate business need and that the request was disproportionate.

The court also denied immediate orders for further affidavits of documents and cross-examination on them, emphasizing ongoing disclosure obligations.

Portions of an affidavit related to arbitration confidentiality were struck.

The applicants sought a declaration that the respondent had no claim to an interest in a property following his alleged failure to close a real estate transaction.

The respondent argued the seller lacked authority to convey title, despite a Vesting Order being obtained.

The court found the respondent failed to close and the applicants were ready, willing, and able.

The Vesting Order was deemed valid.

The court dismissed the respondent's arguments, stating he had no right not to close and was not entitled to specific performance as the property was not unique and he was not ready, willing, and able to close.

The application was granted, declaring the respondent had no interest in the property.

The defendant moved to set aside a default judgment and notice of garnishment obtained by the plaintiff.

The court granted the motion, finding that the defendant acted promptly upon learning of the judgment, provided a plausible explanation for the default due to improper service and lack of notification, and presented an arguable defence regarding defective products.

The court emphasized that the plaintiff's counsel failed to provide a courtesy copy of the claim or judgment to the defendant's retained counsel, and that the administration of justice favored a trial on the merits.

The plaintiff brought a motion for further particulars regarding her 2020 wrongful termination claim.

The defendant sought extensive particulars, arguing they were necessary to plead.

The court largely denied the defendant's requests, finding many particulars were already provided, evident from the claim, or not within the plaintiff's current knowledge due to lack of access to work files.

The court ordered the plaintiff to particularize an allegation of discrimination based on ethnicity, confirm timelines, and identify specific sections of statutes relied upon.

The defendant was ordered to deliver a defence within 20 days of compliance.

The accused, Mitchell Jones, faced multiple charges including mischief, forcible entry, sexual assault, and voyeurism.

The trial focused heavily on credibility assessments of both the complainant and the accused, applying the principles from R. v. W. (D.).

The court acquitted the accused on most charges, finding reasonable doubt based on conflicting evidence and the complainant's contemporaneous statements.

Convictions were entered for one count of mischief (damage to vehicle) and the lesser included offence of assault (from a sexual assault charge).

The plaintiff sought leave to amend its statement of claim to correct misnomers and substitute "Doe" defendants with named individuals, alleging fraud and misappropriation.

The motion was unopposed for five proposed defendants and granted.

For the five vigorously opposed proposed defendants, the court applied Rules 5.04 and 26.01, considering prejudice and the "litigating finger" test.

The court found that the claims against Parray and Khanlarov were too vague and outside the relevant time period, and against Kovalov, the "litigating finger" was not sufficiently pointed, and potential prejudice was noted.

Therefore, the motion to substitute Parray, Khanlarov, and Kovalov was dismissed.

However, the motion to substitute Halatullah and Kolesnik was granted, as the claims against them were sufficiently particularized or their first name matched a "Doe" defendant, and any prejudice was deemed inherent to litigation.

This decision concerns the costs of a successful motion brought by the plaintiffs.

The court reviewed the parties' submissions, considering factors such as the nature and complexity of the motion, the amount claimed in the action, the defendant's conduct (including fulfilling undertakings and making concessions), and the proportionality of the requested costs.

While finding the plaintiffs wholly successful, the court determined that the quantum of costs requested was disproportionately large and applied a discount to the partial indemnity costs.

The defendant insurer moved for summary judgment to dismiss the plaintiff's claims for short-term and long-term disability benefits, arguing the claims were statute-barred, no LTD application was submitted, policy breaches occurred, and the insurer was prejudiced by lack of medical evidence.

The court dismissed the defendant's motion, finding that the action was commenced within the applicable limitation period, adequate proof of claim for LTD benefits was submitted, and the insurer was not prejudiced.

Leave was granted to the plaintiff to amend her Statement of Claim.

The defendant, Richard Joseph Paul Bourdeau, brought a motion for summary judgment to dismiss the plaintiffs' claims of solicitor negligence.

The plaintiffs, Leslie and Theresa Sosnowski, alleged negligence regarding advice on a wrongful dismissal limitation period and ineffective assistance of counsel during a criminal trial.

The court found no duty of care for wrongful dismissal advice, as the plaintiff had retained separate employment counsel.

Regarding the criminal trial, the court determined that the Court of Appeal's acquittal was based on trial judge errors, not the defendant's performance, and the plaintiffs failed to provide expert evidence on the standard of care.

The motion for summary judgment was granted, dismissing all claims against Bourdeau.

The defendants brought a motion to enforce a binding settlement agreement reached on May 17, 2019, to resolve an oppression remedy and wrongful dismissal claim.

The plaintiff opposed, arguing the defendants unilaterally modified a term regarding the share acquisition structure and failed to act in good faith.

The court found a legally binding agreement existed, which explicitly granted the defendants the prerogative to consider an alternative share acquisition structure and agree to it only if persuaded it was tax advantageous or neutral to them.

The court determined that the defendants had fulfilled their obligation by consulting their accountant and deciding against the alternative structure.

The court granted the defendants' motion to enforce the settlement and dismissed the plaintiff's cross-motion, concluding the settlement was reasonable and just.