Cynthia Petersen

The plaintiff and defendant, former business partners, each brought motions for summary judgment regarding a failed real estate transaction for a property on Lushes Avenue.

The plaintiff sought specific performance and damages, alleging the defendant breached the Agreement of Purchase and Sale (APS) and acted in bad faith.

The defendant sought dismissal of the plaintiff's action, damages for unjust enrichment, vacant possession, and an order for sale, alleging the plaintiff anticipatorily repudiated the contract by lacking funds to close.

The court dismissed both motions for summary judgment, finding numerous factual and legal issues in dispute, including which party was responsible for the failed transaction, the plaintiff's ability to close, anticipatory breach, and the property's uniqueness.

The court determined that these issues could not be fairly resolved without a full trial, citing deficiencies in the motion record and serious credibility issues requiring viva voce evidence.

This case involves a dispute between two brothers, Ronald (plaintiff) and Richard (defendant), over beneficial ownership of a residential property.

Ronald asserted beneficial ownership through a resulting trust, while Richard, the registered owner, disputed its existence and counterclaimed for damages and reimbursement.

The court granted Ronald's motion for partial summary judgment, finding that Richard held legal title in trust for Ronald's benefit.

Richard was found to have breached his fiduciary duties by extracting equity and improperly treating the property as an investment for tax purposes, but his conduct did not warrant punitive damages.

The court ordered Richard to transfer title to Ronald upon Ronald securing mortgage release and reimbursing Richard for properly incurred expenses, with an offset for equity removed by Richard.

If Ronald fails to secure financing, the property is to be sold.

The appellant employee appealed the dismissal of his Small Claims Court action for wrongful dismissal.

The employee had refused to perform temporary duties in the shipping department unless he was paid the higher wage rate associated with that position.

The employer treated this as a resignation or, alternatively, just cause for termination due to insubordination.

The Divisional Court upheld the trial judge's finding that the employer's request was reasonable and lawful based on company policy and past practice, and that the employee's repeated refusals constituted a repudiation of an essential condition of his employment contract.

The appeal was dismissed.

Ace Marmon appealed a Small Claims Court decision dismissing his wrongful dismissal action against SanMar Canada.

Marmon claimed he was fired without cause, while SanMar asserted he resigned or was terminated for insubordination after refusing temporary shipping duties at his regular pay rate.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors of fact or law by the Deputy Judge.

The court upheld the finding that Marmon's refusal constituted repudiation of an essential employment condition and insubordination, justifying dismissal.

This action concerned a dispute over the proceeds of sale of a residential property between former common-law partners.

The plaintiff, Errol Walters, claimed entitlement to half the proceeds based on registered joint title.

The defendant, Lubna Nusseiri, counter-claimed for a resulting trust, arguing the transfer of half-interest to Walters was gratuitous and that she was the sole beneficial owner.

The court found Walters made no contribution to the property's initial purchase and that the subsequent transfer to him was gratuitous, giving rise to a presumptive resulting trust in Nusseiri's favour.

Walters failed to rebut this presumption.

The court also rejected Walters' constructive trust claim for renovations, finding no unjust enrichment.

The Applicant sought divorce, retroactive and ongoing spousal support, an equalization payment, and a declaration of 50% beneficial ownership in the matrimonial home based on resulting or constructive trust.

The Respondent contested spousal support entitlement and the ownership claim, arguing for a different valuation date for equalization and reimbursement for property costs.

The court determined the valuation date, denied the beneficial ownership claim, calculated equalization, and awarded retroactive and ongoing non-compensatory spousal support to the Applicant, while also ordering the return of RRSP funds and reimbursement of occupation rent to the Respondent.

This endorsement addresses costs arising from two summary judgment motions.

The Plaintiff successfully defended Halton's motion to dismiss claims against it, and also successfully defended against Mervyn White and Carters PC's motion to dismiss claims against them, though White and Carters PC obtained a declaration regarding the limitation period.

The court found the Plaintiff entirely successful in defending both motions and entitled to costs.

It also found it reasonable to join the defendants and applied the Moore v. Wienecke framework for a Bullock order, requiring Halton to pay a majority of White and Carters PC's costs due to Halton's motion effectively shifting responsibility and prompting White and Carters PC's companion motion.

The offender, Elidio Moran, was convicted of possession for the purpose of trafficking a Schedule 1 controlled substance (crack cocaine).

The court considered an application to exclude evidence based on an alleged s.8 Charter violation, which was denied.

In sentencing, the court weighed aggravating factors, including the nature and quantity of the drug and the offender's significant criminal record with prior drug offences and probation breaches, against mitigating factors such as the efficient conduct of his defence.

The Crown sought 18 months' imprisonment, while the Defence proposed 13 months' imprisonment followed by two years' probation.

The court imposed a sentence of 16 months' imprisonment, followed by one year of probation, with credit for pre-trial custody and house arrest.

Mandatory weapons prohibition and a victim fine surcharge were also ordered.

The offender, Barna Olvedi, was convicted after trial of importing fentanyl and possession of fentanyl for the purpose of trafficking.

The court considered the gravity of the offences, particularly the importation of 499.5 grams of 100% pure fentanyl citrate with an estimated street value of over $14 million, and the devastating impact of fentanyl in the community.

Aggravating factors included the quantity, purity, and powder form of the drug, the financial motivation (greed), and wilful blindness.

Mitigating factors included no prior criminal record at the time of the offence, cooperation with police, post-conviction remorse, reluctance to accept delivery due to threats, and excellent rehabilitation potential.

The Crown sought 17 years, while the Defence proposed 8-12 years.

The court imposed a sentence of 15 years' imprisonment for importing fentanyl and a concurrent sentence of 12 years' imprisonment for possession for the purpose of trafficking, along with forfeiture of $10,759.37 and a fine in lieu of forfeiture of $34,240.63, and mandatory victim fine surcharges.

Tarrique Gordon was convicted of sexual assault and sexual interference involving a 15-year-old.

The court addressed the constitutional invalidity of mandatory minimum sentences and applied the Kienapple principle to conditionally stay the sexual assault conviction, sentencing only for sexual interference.

The sentencing decision considered aggravating factors such as vaginal penetration, significant victim impact, and the offender's disregard for pleas to stop, alongside mitigating factors including the offender's youth, first-time offender status, family support, and rehabilitative potential.

The court also gave serious consideration to the collateral immigration consequences of a sentence exceeding six months, ultimately imposing a sentence of two years less a day imprisonment, along with various ancillary orders.

The applicant, Shrawan Motwane, sought partial summary judgment to dismiss a counterclaim against him personally and for the return of personal belongings seized by the defendants.

The court granted the return of some personal items, finding they were not subject to the chattel mortgage, but dismissed the motion to dismiss the counterclaim, citing genuine issues requiring a trial and the risk of duplicative findings.

The defendant, TD Home and Auto Insurance Company, sought full indemnity costs of over $600,000 after successfully defending a breach of contract claim (arson defence) and succeeding on a counterclaim in a three-week jury trial.

The plaintiff, Nazir Azami, conceded costs but argued the amount was excessive and should be on a partial indemnity scale.

The court, applying Rule 57.01(1) of the Rules of Civil Procedure, found that substantial indemnity costs were warranted due to the plaintiff's deceitful conduct and unfounded allegations of misconduct.

However, the court significantly reduced the claimed amount, finding the defendant's docketed hours (over 1,750 combined hours by six lawyers) and claimed disbursements (over $130,000) to be disproportionate and excessive.

The court also noted the defendant's conduct contributed unnecessarily to the trial's length.

Ultimately, the court ordered the plaintiff to pay the defendant's costs in the total amount of $211,500, inclusive of fees, disbursements, and HST.

This trial decision addresses outstanding issues from a divorce application, including property equalization, child support, spousal support, and Section 7 expenses.

The court determined the parties' net family properties, ordered an equalization payment from the respondent to the applicant, and calculated retroactive and ongoing child support.

The court imputed income to the self-employed applicant due to undeclared cash earnings and unreasonable business expense deductions.

The respondent was found entitled to non-compensatory spousal support, with retroactive and ongoing payments ordered from the applicant.

Claims for Section 7 extraordinary expenses for children's athletic activities were denied.

The appellant appealed a Small Claims Court decision dismissing his claim for breach of contract and granting the respondent banquet hall's counterclaim for unpaid cancellation fees.

The appellant argued the trial judge made factual errors and misapplied the law of mitigation by not requiring the respondent to prove it took active steps to re-book the hall.

The Divisional Court dismissed the appeal, finding any factual errors were inconsequential.

Applying the Supreme Court's decision in Southcott Estates, the court held that the onus of proving a failure to mitigate, including that a profitable substitute could have been found, rests entirely on the party alleging the failure.

The defendants, The Corporation of the Regional Municipality of Halton and the plaintiff's former lawyers (Mervyn F. White and Carters Professional Corporation), brought motions for summary judgment to dismiss the plaintiff's claims for long-term disability (LTD) benefits.

Halton argued the LTD application was late, the plaintiff's employment was terminated, and the claim was statute-barred.

The former lawyers sought dismissal if the claims against Halton were time-barred.

The court granted the plaintiff relief from forfeiture for the late LTD application, finding Halton's misleading information and failure to assist contributed to the delay.

It also determined that the termination of employment did not preclude the claim and that the two-year statutory limitation period applied, which had not expired.

Both defendants' motions for summary judgment were dismissed.

This decision addresses multiple motions in a family law dispute concerning child support, post-secondary education expenses, and contempt.

The court dismissed the applicant's contempt motion regarding costs due to lack of jurisdiction and reserved the contempt motion for non-compliance with a temporary order for trial.

The applicant's motion to dismiss the respondent's motion was denied as it would prejudice the children's rights to support.

The respondent's motion to set aside a prior order terminating child support for the adult daughter was granted, but the court provisionally ordered that the applicant is not obligated to pay support for the daughter beyond her 18th birthday, subject to re-determination at trial.

Interim retroactive child support for both children and ongoing child support for the son were ordered, but the retroactive amount was equitably set off against substantial costs owed by the respondent to the applicant.

The respondent's request for an increased contribution to university expenses was denied due to lack of material change and incomplete disclosure, with this issue also reserved for trial.

Both parties were ordered to provide comprehensive financial disclosure.

The defendant Canadian Hydro Developers (CHD) brought a motion to enforce Minutes of Settlement and sought a declaration on the property valuation date.

The plaintiff, Paul Thompson, opposed, arguing misapprehension of facts and that his former counsel acted without instructions regarding the valuation date.

The court enforced the main settlement but exercised its discretion to set aside counsel's agreement on the June 2014 valuation date, finding it unreasonable and entered into without the plaintiff's instructions, leading to clear injustice.

The valuation date was determined to be the date appraisals are conducted.

The plaintiff and the deceased purchased a property together, with the plaintiff contributing half the down payment but title registered solely in the deceased's name.

Following the deceased's death, his estate claimed the plaintiff was merely a tenant, while the plaintiff claimed 100% beneficial ownership.

On cross-motions for summary judgment, the court found the parties had been in a domestic relationship and applied the presumption of resulting trust.

The court concluded the plaintiff held a 50% beneficial ownership interest in the property and ordered it sold with proceeds divided equally.

The plaintiffs, as judgment creditors, previously obtained a civil contempt order against the defendant judgment debtor for concealing income and moving assets to defeat his creditors.

The penalty phase was adjourned to allow the defendant to purge his contempt by paying $112,623.

The defendant paid the amount in full, albeit past the deadline.

The court determined the appropriate sentence for the contempt, weighing mitigating factors (purging the contempt, no prior record, apology) against aggravating factors (intentional and long-running misconduct).

The court ordered the defendant to complete 75 hours of volunteer community service over six months.

The accused was charged with sexual assault and sexual interference involving a 15-year-old complainant.

The parties met in person after communicating via social media.

The accused admitted to intentional sexual touching but claimed the complainant consented.

The court applied the W.(D.) framework to assess credibility, rejecting the accused's exculpatory evidence as implausible and inconsistent.

The court found the complainant's testimony credible and reliable, concluding that she did not consent and that the accused did not have an honest but mistaken belief in consent.

The accused was convicted on both charges.