Darwin Earl John Keane Harasym

The applicant and respondent, two siblings, are engaged in contentious estate litigation over their late father's estate.

The applicant brought an application under Rule 14.05 seeking, among other things, declarations of resulting trust over a condominium, a RRIF, and a TFSA, and the removal of the respondent as Estate Trustee.

The respondent argued the application was essentially a motion for directions under Rule 75.06 and should be subject to a minimal evidentiary threshold.

The court held that the evidentiary threshold established in will challenge cases does not apply to a Rule 14.05 application that does not challenge the validity of the will.

The court directed the issues to proceed to trial as an action, but dismissed the applicant's premature requests for documentary production and an order prohibiting the respondent from using estate funds for litigation.

The moving party sought panel review of two single-judge motion decisions: one requiring security for costs and payment of costs, and one refusing leave to obtain and file a transcript for the review.

The panel held that no error in principle, unreasonable result, legal error, or misapprehension of evidence was shown.

Both review motions were dismissed.

The applicant appealed a Committee of Adjustment decision refusing a minor variance to reduce a side yard setback from 6 metres to 1.5 metres for a covered porch on a reconstructed cottage.

The Tribunal accepted the uncontested expert planning evidence that the variance met the four tests under section 45(1) of the Planning Act, was consistent with the Provincial Planning Statement, and would have minimal impact on neighbouring properties.

The appeal was allowed and the variance was authorized.

The plaintiff sought to vary a court-approved timetable to compel affidavits of documents and examinations for discovery prior to the defendant's summary judgment motion.

The defendant opposed, arguing the motion should proceed without delay and that the case was not complex.

The court granted the plaintiff's motion, finding that allegations of fraud and forgery involve credibility issues difficult to resolve on a paper record alone.

The court ordered a proportionate discovery process including exchange of affidavits of documents and cross-examinations on the motion, with the summary judgment motion to be heard in fall 2026.

The appellant appealed the Essex Region Conservation Authority's refusal to issue a development permit for the reconstruction of a residential structure located within flood and erosion hazard lands.

The Tribunal found that while the scope of the works constituted a reconstruction and therefore a 'development activity' requiring a permit under the Conservation Authorities Act, the permit should be issued.

The Tribunal determined that the works, which were primarily internal renovations within the existing footprint, would not create new hazards or aggravate existing ones, and were consistent with the Provincial Planning Statement.

This decision addresses several motions between the parties, including undertakings and refusals arising from cross-examinations, a request for Employment and Social Development Canada (ESDC) to produce certain files and employees as witnesses, and whether the plaintiffs should be granted leave to file a supplementary affidavit in the context of a summary judgment motion.

The court discusses the privacy and production issues related to ESDC records, the discretion of the Minister under the Department of Employment and Social Development Act, and the test for granting leave to file supplementary affidavit material.

The court also rules on costs and sets out principles for undertakings and refusals.

The Ontario Land Tribunal held a Case Management Conference regarding an appeal of the Essex Region Conservation Authority's decision to deny a permit for the reconstruction of a house and detached structure.

The Tribunal approved the final draft Procedural Order and scheduled a three-day video hearing to commence on June 24, 2025.

The defendants moved to dismiss or stay an action arising from a cottage sale dispute on the basis of res judicata, abuse of process, and multiple unpaid costs orders from prior related proceedings.

The court held that the plaintiff's new claim merely attempted to re-litigate the enforceability of an agreement of purchase and sale that had already been decided against him in earlier proceedings and unsuccessfully challenged on appeal.

The court found both cause of action estoppel and issue estoppel established, and further held that the plaintiff's failure to pay outstanding costs orders independently justified dismissal under the Rules of Civil Procedure.

The claim against the second defendant was also struck for disclosing no reasonable cause of action.

In the alternative, the court held that security for costs of $42,940 would have been appropriate if the action were to continue.

The defendant, 2756646 Ontario Inc. (Mitchell Woods), brought a motion to discharge five certificates of pending litigation (CPLs) registered against nine properties.

The plaintiffs had obtained these CPLs based on Agreements of Purchase and Sale (APS) for homes that were never built.

Mitchell Woods argued the APS were not enforceable against it as it was not the named vendor and that damages would be an adequate remedy.

The plaintiffs contended that Hira Custom Homes Inc. acted as Mitchell Woods' agent, or Mitchell Woods was implicitly referenced in the APS, or a constructive trust arose.

The court found a triable issue regarding the plaintiffs' interest in the land based on agency or implied terms.

Considering the equities, particularly the advantageous terms of the APS and the defendant's failure to provide evidence of its ability to pay damages, the court dismissed the motion to discharge the CPLs.

The Tribunal held a Case Management Conference regarding an appeal of the Essex Region Conservation Authority's denial of a permit to reconstruct a house and detached structure.

The parties agreed on a draft Procedural Order and finalized the Issues List.

The Tribunal scheduled a three-day merit hearing to determine whether the proposed works constitute a development under the Conservation Authorities Act and whether a permit should be allowed.

The appellant appealed the Essex Region Conservation Authority's refusal to issue a permit for the reconstruction of a house and detached structure.

At a Case Management Conference, the parties discussed the issues, which included whether the reconstruction constituted 'development' and whether safety considerations were properly applied.

The Tribunal scheduled a subsequent Case Management Conference and ordered the parties to file a draft Procedural Order and Issues List.

The moving parties brought a motion for leave to appeal the order of Carey J. dated May 1, 2023.

The Divisional Court dismissed the motion for leave to appeal.

As agreed by the parties, the moving parties were ordered to pay the responding party's costs fixed at $3,000.

The Automotive Parts Manufacturers' Association (APMA), supported by the City of Windsor and the Attorney General of Ontario, brought a motion for an interim interlocutory injunction to restrain a protest that had obstructed access to the Ambassador Bridge in Windsor, Ontario.

The protest, related to COVID-19 restrictions, caused significant economic harm to the automotive industry and disrupted the local community.

The court applied the three-part RJR-MacDonald test for injunctions and the modified test for statutory injunctions to enforce municipal by-laws.

The court found overwhelming evidence of serious issues to be tried (public nuisance, intentional interference with economic relations) and irreparable harm to the economy and community.

It concluded that the balance of convenience strongly favored granting the injunction, emphasizing that Charter rights to freedom of expression do not extend to unlawful acts that impede public access and cause substantial harm.

The applicant brought an application for judicial review of an arbitrator's interpretation of schedules to two expired collective agreements.

Prior to the hearing, the parties ratified new collective agreements.

The Divisional Court dismissed the application, finding the matter moot as there was no longer a live controversy between the parties.

The court declined to exercise its discretion to hear the moot case, emphasizing that it does not provide advisory opinions and that the applicant had an obligation to bargain scheduling issues rather than await a court decision on expired agreements.

The defendant brought a motion to transfer the proceeding from the Toronto Region to the Southwest Region (Windsor).

The action arose from a failed real estate transaction for a property located in Windsor.

The plaintiff, who resides in Toronto, commenced the action in Toronto seeking specific performance or damages.

Applying the holistic approach under Rule 13.1.02(2) of the Rules of Civil Procedure, the court found that the plaintiff's choice of venue was reasonable and the defendant failed to establish that Windsor would be a significantly better venue.

The motion to transfer was dismissed.

The plaintiffs brought a motion for summary judgment seeking specific performance of an Agreement of Purchase and Sale for a residential property.

The defendant vendor attempted to unilaterally terminate the agreement and failed to close the transaction, arguing that the closing date fell on a holiday and no agreement was reached for a new date.

The court found that the defendant committed an anticipatory breach and that the plaintiffs were ready, willing, and able to close on the next business day.

The court granted summary judgment and ordered specific performance, finding the property was uniquely suited to the plaintiffs and damages would be inadequate.

Gibbs & Associates (G.A.), a law firm, sought a court determination on the scope of an assessment of its legal accounts rendered to 1904601 Ontario Ltd. (190).

Following a lien release agreement, 190 unilaterally initiated an assessment for ten accounts, including some already paid and outside the agreed scope of five outstanding accounts.

The court characterized 190's actions as "sharp practice." The court ordered that accounts 8 through 13 be assessed, finding that accounts 1 through 4, which were paid more than 12 months prior and subject to a previous discount agreement, should not be assessed due to the absence of special circumstances and being out of time under the Solicitors Act.

The appellant appealed a Consent and Capacity Board decision refusing to appoint him as the substitute decision-maker for his mother regarding her admission to a care facility.

The Board had found the appellant did not meet the criteria under s. 33(6) of the Health Care Consent Act, relying on the 'best interests' factors in s. 42(2).

The Superior Court of Justice allowed the appeal, finding the Board erred in law by misapplying the statutory test, improperly discounting the mother's previously expressed wishes to be cared for by family, and misinterpreting the definition of 'available'.

The Court quashed the Board's decision and appointed the appellant as his mother's representative.