Charles T. Hackland

The defendants brought a motion under Rule 21.01(b) of the Rules of Civil Procedure to strike portions of an amended statement of claim alleging breach of solicitor-client duties and defamation.

The court considered challenges including alleged non‑justiciable claims tied to parliamentary and executive privilege, insufficient particulars in the libel pleadings, prior determinations that certain statements were not defamatory, and whether fiduciary duty allegations were merely disguised defamation claims.

The court held that most allegations were properly pleaded and could proceed, including claims relating to alleged breaches of fiduciary duty and defamatory statements.

However, portions alleging that previously adjudicated statements were defamatory had to be re‑cast due to issue estoppel.

References to parliamentary committee testimony were permitted to remain pending determination of privilege issues at trial.

Following a pleadings motion in which the defendants were substantially successful in striking portions of a statement of claim for disclosing no reasonable cause of action or being improperly pleaded, the court addressed costs.

Although leave to amend certain paragraphs had been granted, the defendants remained the substantially successful parties.

The court held that the plaintiff’s self‑represented status and incarceration did not justify departing from ordinary costs principles.

Costs were awarded to the defendants on a partial indemnity basis and fixed at $7,500 inclusive of disbursements and HST.

The accused was charged with sexual assault and choking to facilitate sexual assault following an encounter that began as a consensual meeting arranged through an online dating site.

The evidence showed the accused became increasingly intoxicated and engaged in escalating aggressive sexual behaviour, including slapping, choking, and threats, culminating in a final sexual encounter found to be non-consensual.

The court relied on the complainant’s testimony, corroborating text messages, medical evidence of bruising, and admissions in the accused’s police interview.

The court rejected the possibility of an honest but mistaken belief in consent, finding that any such belief would have arisen from recklessness and self‑induced intoxication and that the accused took no reasonable steps to ascertain consent.

The accused was found guilty of sexual assault and choking to assist sexual assault.

The plaintiff brought a motion for summary judgment to determine the reasonable notice period following her without-cause termination.

The 41-year-old plaintiff was employed as a middle manager for 2.5 years.

The court found that the employer's contributions to CPP and EI should be included in the calculation of her compensation package.

Applying the Bardal factors, the court fixed the reasonable notice period at six months and awarded damages of $23,315, representing the balance owing after deducting severance payments already made.

Certain beneficiaries of an estate brought a motion to remove the estate solicitor and his firm due to a conflict of interest in a contested passing of accounts.

The solicitor had previously acted for one of the estate trustees when she was the deceased's power of attorney for property, and had handled many of the transactions now in dispute.

The court found that the solicitor's extensive involvement in the deceased's affairs and the estate created a potential conflict situation.

The motion was granted and the solicitor's firm was removed as counsel for the estate.

The plaintiff was injured in a motor vehicle accident and sued her long-term disability insurer after being denied benefits.

She was receiving income replacement benefits from her accident benefits insurer.

The accident benefits insurer successfully moved to be added as a defendant to help the plaintiff secure long-term disability benefits, which would reduce its own payment obligations.

The long-term disability insurer appealed.

The Divisional Court allowed the appeal, finding that the accident benefits insurer was not a necessary party under Rule 5.03 and had no direct cause of action against the long-term disability insurer.

The appellant landlord appealed a decision of the Landlord and Tenant Board dismissing its application to evict the respondent tenant for late payment of rent.

The tenant had paid rent late eleven times over a twelve-month period, but had a ten-year history of paying on time prior to that.

The Divisional Court held that the Board's interpretation of 'persistently' and its exercise of discretion to refuse eviction without imposing conditions were reasonable.

The appeal was dismissed.

The appellant appealed a decision upholding a Master's finding that the appellant owner repudiated a construction contract.

The Master found that the contract evolved over time due to multiple plan changes, requiring the owner to act reasonably and renegotiate construction milestones.

The Divisional Court dismissed the appeal, holding that the Master's conclusions were rooted in the evidence and the appeal judge correctly applied the palpable and overriding error standard of review.

This was a costs endorsement following the plaintiff's success on a motion resisting a stay for lack of jurisdiction and forum non conveniens.

The court held that the plaintiff had made a Rule 49 offer that was essentially matched by the result obtained and was therefore entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The defendants did not challenge counsel's hourly rate or the application of Rule 49, but argued fewer hours had been spent.

The court found the hours claimed reasonable under the Rule 57 factors and awarded $16,000 inclusive of HST and disbursements.

The accused was tried on two counts of criminal harassment and one count of breach of probation arising from post-separation contact with his estranged spouse.

The court reviewed a lengthy course of communications and encounters in the context of an on-again, off-again relationship, ongoing property disputes, and mixed messages from the complainant.

Although the court found one August incident amounted to deliberate harassment, it was not satisfied beyond a reasonable doubt that the complainant feared for her personal safety or psychological well-being as required by s. 264.

The evidence of repeated following also did not rise above suspicion.

The accused was acquitted on all counts.

The appellant challenged convictions arising from a police pursuit on the basis that identity was proved only through weak eyewitness evidence.

The appeal court held that the trial judge failed to apply the careful scrutiny required for stranger identification made during a brief and dynamic encounter, followed by a single-photograph identification process.

The officer's contemporaneous description was generic, the later in-court description was materially augmented, and there was no confirmatory circumstantial evidence linking the appellant to the vehicle or plate.

The convictions were set aside and acquittals entered.

The appellant appealed a Master's order dismissing his action for repeatedly failing to comply with court orders requiring him to answer undertakings.

The appellant argued he should have been given another 'last chance' to comply, especially as a self-represented litigant.

The Divisional Court dismissed the appeal, finding the appellant had already been given a clear last chance order and had willfully disregarded it by demanding inappropriate conditions before he would comply.

The court affirmed that repeated failures to comply with procedural orders justify dismissal.

The defendants moved to strike portions of a self-represented inmate's Statement of Claim alleging torts and Charter breaches arising from an allegedly unlawful transfer from a minimum security institution to a medium security institution.

The court held that the pleading improperly conflated material facts with evidence, opinion, and argument, and that several tort claims lacked essential elements.

The entire Statement of Claim was struck with leave to amend because the deficiencies were so extensive as to require a new pleading.

The individual defendants were also struck on the undertaking that the Attorney General would accept vicarious liability for any proven torts or Charter breaches.

In a contaminated land action arising from a real estate purchase, certain real estate defendants settled with the plaintiffs under a Pierringer Agreement and sought to be removed from the proceeding.

The remaining vendor defendant refused to abandon a cross-claim against the listing agent and brokerage that pleaded both negligence and breach of contract under the listing agreement.

The court held that Pierringer principles applicable to contributory negligence claims did not plainly foreclose a distinct contractual indemnity claim by a non-settling defendant who was not party to the settlement agreement.

The motion to strike that cross-claim was dismissed, although a separate contributory-negligence-only cross-claim was struck on consent.

In an estate proceeding commenced in 2003 with minimal progress, the moving respondents sought dismissal of the application and payment out of estate funds being held in court.

The court found the application was not being seriously pursued and had become an abuse of process, particularly in light of repeated adjournments and the control of the litigation by a person previously declared a vexatious litigant.

Given the age of the beneficiaries and the urgency of distribution, the court was prepared to direct payment out of the full estate proceeds to the entitled beneficiaries.

The applicant was granted 90 days to seek leave to continue the proceeding, failing which it could be dismissed by ex parte motion in writing.

The defendants sought leave to appeal a motion decision permitting a fully subrogated insurer to continue an action in the names of insureds despite one insured being an undischarged bankrupt when the action was commenced.

The court held the proposed appeal raised important issues of insurance and insolvency law and that there was good reason to doubt the correctness of the motion judge's ruling.

Applying settled bankruptcy and subrogation principles, the court held that the bankrupt insured's cause of action vested in the trustee and that a subrogated insurer could assert only the rights available to the insured.

Because no assignment from the trustee was obtained before the limitation period expired, leave to appeal was granted.

The applicants sought leave to appeal an arbitral award upholding a co-tenancy committee’s authority to require removal or relocation of a ground-level air conditioning unit installed without approval.

The court held that the arbitrator’s interpretation of the co-tenancy agreement and assessment of whether the alteration was minor or cosmetic involved mixed questions of fact and law, not an appealable question of law under s. 45 of the Arbitration Act, 1991.

The court further held that any reliance on condominium jurisprudence did not establish an extricable legal error and that the arbitral decision was reasonable on the record.

Leave to appeal was refused.

The court conducted an assessment of damages following a prior ruling that the defendant’s security interest in the plaintiff’s equipment was invalid under s. 89(1) of the Indian Act.

The defendant had seized the equipment based on the invalid security interest, constituting the tort of conversion.

The court determined the fair value of the seized equipment using expert appraisal evidence and awarded damages reflecting the depreciated condition of the equipment.

The court also awarded limited loss of income damages, finding the plaintiff failed to adequately mitigate losses and restricting compensation to a one‑year period with a modest adjustment for borrowing difficulties.

Punitive damages were additionally awarded after the defendant’s agent improperly involved police in what was a civil debt dispute and falsely characterized the plaintiff as a thief.

The Crown brought a motion for leave to appeal an order permitting the plaintiffs to amend their statement of claim to add the Crown as a defendant in litigation concerning the implementation of competitive procurement for student transportation services.

The plaintiffs alleged the Ministry of Education improperly influenced school boards to use RFP processes under the Broader Public Sector Accountability Act and related procurement directives, disadvantaging smaller operators.

The court held that the claims, including allegations of negligent misrepresentation and breach of statutory duties, were not plainly untenable and required a full factual record at trial.

Questions regarding Crown immunity and the scope of any duty of care could not be resolved without detailed factual findings.

Leave to appeal was therefore refused.

Following the dismissal of the applicant's application for judicial review, the court determined the costs to be awarded to the successful respondent university.

The applicant, who was self-represented, sought costs despite being entirely unsuccessful.

The court rejected the applicant's claim and awarded partial indemnity costs to the respondent, reducing the requested amount to reflect a more conventional award for an application of this type.

The respondent was awarded $18,805.89 inclusive of disbursements and HST.