Cory A. Gilmore

The defendant brought a motion for leave to amend her statement of defence and add a counterclaim in a commercial lease dispute involving alleged rental arrears, utilities, and insurance costs.

The plaintiff opposed the amendment, arguing the proposed defences, including a limitation period defence and allegations of fiduciary duty, were legally untenable and constituted delay tactics.

Applying Rules 26.01, 26.02, and 27.07 of the Rules of Civil Procedure, the court held that leave to amend should generally be granted unless non-compensable prejudice would result.

The court found that although some proposed defences appeared tenuous, the litigation was at an early stage and the plaintiff would suffer no prejudice that could not be compensated by costs.

Leave to amend and add the counterclaim was granted, with directions that the summary judgment motion proceed after the amended pleadings and related steps.

The plaintiff moved to set aside a default judgment granted on the defendant’s counterclaim and to withdraw deemed admissions arising from a failure to respond to a request to admit.

Applying the common law test for setting aside default judgment, the court considered whether the motion was brought promptly after discovery of the judgment, whether the default was adequately explained, and whether there was an arguable defence on the merits.

The court accepted that the moving party only became aware of the judgment years later and that counsel’s medical issues contributed to the failure to respond.

The court also emphasized the importance of civility between counsel, noting that notice of the intention to seek default could have avoided the situation.

Finding an arguable defence and limited prejudice to the responding party, the court set aside the default judgment and the deemed admissions.

The Crown brought a certiorari application seeking to quash a trial judge’s disclosure order requiring the Crown to facilitate defence contact with two witnesses who were the complainant’s brothers in a criminal harassment prosecution.

The Crown argued that the order effectively compelled the witnesses to speak with defence counsel and exceeded the trial judge’s jurisdiction.

The court held that the order did not compel the witnesses to participate but merely provided a mechanism for voluntary contact while protecting their autonomy and ability to seek legal advice.

The ruling arose in the context of a Stinchcombe disclosure application where potential relevance to the complainant’s subjective fear was established.

The court concluded the trial judge acted within jurisdiction and that the disclosure mechanism appropriately balanced defence rights with witness privacy.

A subcontractor brought a simplified procedure summary trial seeking payment for renovation work performed on two public construction projects and claimed against a labour and material payment bond issued by the defendant insurer.

With respect to the first project, the court found the subcontractor proved the debt owed by the general contractor but failed to comply with the notice and timing conditions precedent required to enforce the labour and material bond against the surety.

As a result, the debt was recognized but not enforceable against the insurer.

For the second project, the court found the subcontractor properly complied with the bond notice requirements and proved the amount owing, while the defendant failed to produce reliable evidence of deficiencies or rectification costs.

Judgment was therefore granted against the insurer for the second project only.

The defendant brought a motion under Rule 51.05 of the Rules of Civil Procedure seeking leave to withdraw deemed admissions arising from a failure to respond to a request to admit.

The plaintiff simultaneously moved for judgment based on those deemed admissions.

Applying the three‑part conjunctive test from Antipas v. Coroneos, the court held that the proposed withdrawal raised triable issues, that the defendant had provided a reasonable explanation for the failure to respond, and that any prejudice to the plaintiff could be compensated by costs.

Although the defendant’s conduct demonstrated a “head in the sand” approach, denying withdrawal would have prevented adjudication of a significant monetary dispute on the merits.

The court set aside the deemed admissions, dismissed the plaintiff’s motion for judgment, and ordered costs in favour of the plaintiff.

The plaintiff brought a pre-trial motion seeking to amend pleadings in two consolidated construction-related actions originally commenced in Small Claims Court.

The requested amendments included increasing the monetary claims above the former Small Claims Court jurisdictional limit, correcting a bond number, asserting rights under a labour and material bond, and adding claims for relief from forfeiture under the Courts of Justice Act and the Insurance Act.

The court held that increasing the quantum of damages already claimed did not constitute a new cause of action and allowed the amendments raising the amounts claimed.

However, the court refused amendments introducing a claim under a labour and material bond where the original pleadings relied on an incorrect performance bond, finding this would introduce a new and statute-barred claim causing presumed prejudice.

The court also rejected the proposed amendments seeking relief from forfeiture because the plaintiff had failed to comply with condition precedent notice requirements and its conduct in delaying the amendment was unreasonable.

In a family law proceeding concerning custody and access, the respondent mother moved to adjourn a fixed-date trial to allow for the appointment of the Office of the Children’s Lawyer or a parenting assessment, to obtain unsupervised access, and to set aside prior interim orders on the basis that her statutory right to a bilingual proceeding under the Courts of Justice Act had been breached.

The court declined to adjourn the trial, emphasizing the lengthy litigation history, the children’s need for finality, and the substantial court resources already arranged for a bilingual trial.

The court held that while parties have a substantive right to a bilingual proceeding, the evidence did not establish that prior interim orders should be vacated, particularly where the party had been informed of the procedure for requesting a bilingual hearing but failed to pursue it.

The court did, however, confirm that in Family Court proceedings documents may be filed in French notwithstanding the absence of Schedule 2 designation, subject to translation if requested.

The landlords brought a motion to quash the tenants' appeal of a Landlord and Tenant Board order evicting them from a residential property.

The eviction was based on an N12 notice for a purchaser's own use.

The tenants appealed on several grounds, including that the LTB member erred in interpreting section 72 of the Residential Tenancies Act and violated procedural fairness.

The Divisional Court found that the appeal was manifestly devoid of merit and intended to delay eviction, as the grounds were either baseless or impermissible appeals of findings of fact.

The motion to quash was granted and the stay of eviction was lifted.

The defendant brought a motion to set aside a default judgment and writ of possession obtained by the mortgagee after the defendant defaulted on a second mortgage secured against residential property.

The defendant argued she did not recall receiving the originating process due to mental health issues and advanced a proposed defence alleging a fiduciary relationship involving a bank that referred her to the mortgage broker.

The court held the defendant failed to provide a credible explanation for the default, noting evidence that she had been personally served and that her counsel was aware of the motion date but chose not to attend or send an agent.

The court further found that the proposed defence lacked an air of reality because the mortgage relationship between the parties remained a straightforward debtor‑creditor relationship.

The motion to set aside the default judgment was dismissed.

The father brought a motion for contempt after the mother unilaterally suspended court‑ordered access following two incidental encounters between the child and a third party referenced in the prior access order.

The mother asserted the encounters breached the order and raised concerns about the child’s emotional well‑being and moral objections to the relationship involving the third party.

The court held that the order did not prohibit chance encounters and that the father’s conduct did not breach the access restriction.

The mother’s refusal to facilitate four scheduled visits constituted a deliberate breach of the 2008 access order.

The court found the mother in contempt, ordered four make‑up access weekends, but declined to impose a fine while reserving costs.

The defendants moved for summary judgment dismissing two related actions alleging fraudulent conveyances on the basis that the claims were barred by the two‑year limitation period under the Limitations Act, 2002.

The plaintiffs argued that the claims were timely due to discoverability, reliance on another creditor’s ongoing fraudulent conveyance action, and potential application of the Real Property Limitations Act or exceptions for declaratory relief.

The court held that issues of discoverability, whether the relief sought was purely declaratory, whether reliance on the prior action affected limitation analysis, and whether fraudulent concealment occurred all raised genuine issues requiring a trial.

The evidence could support the plaintiffs’ position that the limitation period either had not expired or might not apply.

Summary judgment was therefore inappropriate.

The respondent father brought a motion to change seeking termination of child support for an adult child, adjustment of child support for the remaining child, retroactive recalculation of section 7 child care expenses, and termination or reduction of spousal support.

The court found a material change in circumstances based on the parties’ income changes and the eldest child ceasing to be dependent.

Spousal support was not terminated due to the length of the marriage and the continuing caregiving responsibilities of the recipient, but the court found that under the Spousal Support Advisory Guidelines the appropriate amount would be mid‑range support resulting in little or no ongoing entitlement.

Child support for the adult child was terminated effective June 30, 2011 and ongoing support for the younger child was recalculated.

The court ordered recalculation of retroactive amounts and proportionate sharing of uninsured dental expenses.

The applicant sought the court's direction on whether she properly exercised her right under a separation and trust agreement to purchase the trust's 50% interest in the matrimonial home.

The applicant relied on an appraisal valuing the home at $700,000, while the property subsequently sold to a developer for $1.35 million.

The court ruled in favour of the respondent trustee, finding that the actual sale price was the best indicator of fair market value and that the trustee acted properly to maximize the trust's interest.

The plaintiff mortgagee brought a motion to expunge notices registered on title by the defendants and sought costs of an abandoned motion against the defendants and their former solicitor personally.

The court found the defendants had used the court process for tactical purposes and ordered them to pay substantial indemnity costs of $9,663.20, apportioned 70% to the original owner and 30% to the subsequent purchaser.

The court declined to order costs against the solicitor personally, finding he did not orchestrate the scheme.

The court also ordered the notices on title expunged pursuant to the Land Titles Act.

The plaintiffs brought a motion for summary judgment seeking dismissal of the defendants’ counterclaim alleging malicious prosecution, unlawful interference with economic relations, and various claims for damages arising from an earlier injunction and the termination of a referral relationship.

The court held that the defendants failed to establish the elements required for malicious prosecution, particularly malice, and that the inclusion of parties in civil litigation was insufficient to ground such a claim.

Claims for intentional or unlawful interference with economic relations also failed because the evidence did not demonstrate an intention by the plaintiffs to cause economic harm.

The court further found that damages related to the interim injunction should be pursued through enforcement of the undertaking for damages rather than by counterclaim.

Partial summary judgment was granted dismissing most of the counterclaim, with leave granted to amend the counterclaim to seek damages tied specifically to the injunction period.

Sentencing decision for two counts of fraud over $5,000 arising from an extensive tax fraud scheme committed by a tax preparer.

The offender manipulated client tax returns to include false deductions and unmade charitable donations, resulting in more than $17 million in tax evasion and significant financial hardship for numerous victims following reassessments by the Canada Revenue Agency.

The court found numerous aggravating factors under section 380.1 of the Criminal Code, including the magnitude and planning of the fraud, the large number of victims, and the offender’s abuse of trust.

No mitigating factors were identified, particularly given the offender’s lack of remorse and flight from the jurisdiction prior to trial.

Emphasizing general and specific deterrence, the court imposed maximum concurrent custodial sentences and a substantial fine equal to the taxes evaded on one count.

The accused faced a charge of sexual assault and brought a Charter application to exclude DNA evidence obtained through a warrantless penile swab and to challenge the admissibility of several statements made to police.

The court considered whether the swab constituted a lawful search incident to arrest and whether exigent circumstances justified the warrantless seizure.

While the court held that the search did not breach sections 7 or 8 of the Charter due to exigent circumstances and reasonable grounds, it found a breach of section 10(b) because police failed to ensure the accused had meaningful access to counsel regarding the intrusive procedure.

Applying the Grant framework, the court excluded the derivative DNA evidence.

The court also held that the Crown failed to prove beyond a reasonable doubt that the accused’s statements were voluntary due to intoxication, lack of caution during initial questioning, and uncertainty about whether the accused had an operating mind.

Following the granting of summary judgment in favour of a lender in a commercial loan enforcement action, the court addressed the issue of costs.

The successful lender sought substantial indemnity costs based on contractual indemnity provisions in the mortgage, standard charge terms, and general security agreement.

The defendants argued that no costs should be awarded or that they should receive substantial indemnity costs due to alleged unfounded accusations of dishonesty and the purportedly novel nature of the dispute.

The court held that costs should follow the event and rejected the defendants’ arguments regarding misconduct and novelty.

Exercising its discretion and applying proportionality, the court awarded reduced costs rather than the full amount claimed.

The Crown appealed a sentence imposed for the offence of operating a motor vehicle with blood alcohol exceeding 80 mg.

The sentencing judge had imposed a suspended sentence and probation despite the offender having a prior related conviction and a very high blood alcohol reading.

The Crown argued the sentence was illegal or demonstrably unfit because it failed to recognize the applicable minimum punishment and inadequately considered deterrence.

The appeal court held the sentence was demonstrably unfit and failed to properly account for prior convictions and the aggravating blood alcohol level, though incarceration was inappropriate because the offender had completed the sentence.

The court allowed the appeal and substituted a $2,000 fine.

The plaintiff Bank brought a motion for summary judgment on a demand loan and for possession of a mortgaged commercial property.

Although the borrower was current on monthly payments, the Bank demanded repayment based on non-financial defaults, including the unauthorized transfer of the property to a limited partnership, late financial statements, and misrepresentations in statutory declarations.

The court granted summary judgment, finding that the loan documents clearly permitted demand at any time and that the non-financial breaches justified the Bank's decision to call the loan.