David G. Price

This case conference addressed multiple motions in ongoing construction lien actions.

The plaintiff sought orders for substituted service of a Summons to Witness and a remedy for the defendant's failure to deliver will-say statements.

The defendant sought production of evidence for a personal costs claim against its counsel and a determination on the preclusive effect of a prior order on costs.

The court addressed the requirements for will-say statements, clarified the scope of a previous preclusion order, and deemed the personal costs claim premature, to be addressed by the trial judge.

The applicant, Nadia Hosein, brought a motion seeking enforcement of a previous parenting order, an updated s. 30 assessment of the children's needs, and sanctions against the respondent, Anoop Dhamoon, for breaching court orders and engaging in parental alienation.

The respondent sought to dismiss or stay the applicant's motion due to unpaid costs and opposed the other requests.

The court found that the applicant had substantially complied with past costs orders, that the respondent had breached the parenting order and engaged in parental alienation, and ordered an updated s. 30 assessment, therapy for the applicant and the eldest child, strict compliance with the previous access order, and costs against the respondent.

The respondents (corporate moving parties) sought to vary or set aside an August 9, 2016 order appointing an auditor, pursuant to Rule 59.06(a) and (b), alleging fraud or mistake due to undisclosed facts by the original applicants (now respondents to this motion).

The undisclosed facts included audit waivers signed by a principal of the original applicants, his criminal conviction, and consumer proposal.

The court dismissed the motion, finding that the original applicants were not obliged to disclose these facts as the motion was on notice, the respondents could have discovered them with reasonable diligence, and the facts would not have altered the outcome as the audit was ordered in the interests of justice, not based on an automatic statutory right.

The court affirmed a shareholder's right to audited financial statements as a fundamental check on financial mismanagement.

The self-represented plaintiffs commenced an action in Small Claims Court for damages arising from a condominium purchase.

During trial, it became evident they intended to claim rescission, a remedy outside the Small Claims Court's jurisdiction.

The trial judge stayed the proceeding to allow them to seek a transfer.

The plaintiffs moved to transfer the action to the Superior Court of Justice and amend their claim.

The court granted the motion, finding it appropriate to allow the plaintiffs to pursue their claim in its full dimensions, despite procedural defects in their motion materials.

Costs were awarded to the defendant as the motion was necessitated by the plaintiffs' mistakes.

The applicant, Wilcason Bullock, moved to vary a 2012 child support order, claiming reduced income and that his children were no longer "children of the marriage." The respondent, Michelle Bullock, moved to dismiss his variation motion due to his repeated breaches of multiple court orders, including non-payment of support arrears, non-payment of interest on costs, failure to provide proof of life insurance, and persistent financial non-disclosure.

The court found that the applicant deliberately breached these orders, which undermined the respondent's ability to respond to his motion and secure a fair determination of the issues.

The court dismissed the applicant's motion to vary, ordered him to redeem his RRSP to reduce arrears, and pay the respondent's costs.

The defendant WR Property Service Inc. brought a motion for summary judgment in a slip and fall personal injury action.

The Morguard defendants, co-defendants in the action, requested an adjournment of WR's summary judgment motion and the upcoming trial, arguing they had insufficient time to prepare a proper response, including securing an affidavit and conducting cross-examinations.

The court granted the adjournment, finding that denying it would cause significant prejudice to the Morguard defendants by preventing them from fully presenting their case, and that the interests of justice in resolving the matter on its merits outweighed the delay.

The plaintiff mortgage broker arranged financing for the defendants' convention centre project.

The plaintiff alleged it was entitled to a 5% ownership interest in the defendant corporation pursuant to an equity agreement, but share certificates were never issued.

Over eight years later, the plaintiff sued.

The defendants moved for summary judgment, arguing the claim was statute-barred under the Limitations Act, 2002.

The plaintiff brought a cross-motion to amend its claim to seek only declaratory relief, arguing that under s. 16(1)(a) of the Act, claims for declaratory relief alone are not subject to a limitation period.

The court granted the plaintiff leave to amend its claim and dismissed the defendants' motion for summary judgment, finding a genuine issue for trial as to whether the plaintiff acquired a beneficial interest that could be subject to declaratory relief without consequential relief.

The self-represented plaintiff, Paul Taylor, sued the Workplace Safety & Insurance Board (WSIB) and the Workplace Safety & Insurance Appeals Tribunal (WSIAT) for approximately $17 million, alleging bad faith, breaches of the Human Rights Code and the Charter of Rights, and various torts related to the handling of his workplace injury benefits claim.

The WSIAT brought a motion to dismiss the action as frivolous, vexatious, and an abuse of process, or to strike the pleadings for disclosing no reasonable cause of action.

The court granted the motion, finding that it lacked jurisdiction over the subject matter, the WSIAT lacked legal capacity to be sued, the action constituted an abuse of process by attempting to re-litigate issues already decided by the Tribunal, the claim failed to disclose a reasonable cause of action (including for assault and misfeasance of public office), and the claims were statute-barred.

Leave to amend the statement of claim was denied, and the statement of claim was struck in its entirety.

The Respondent/Father brought an urgent motion to vary an existing custody order, seeking sole custody of their 14-year-old son (XR) due to mental health concerns and self-harm behaviors.

The Applicant/Mother opposed.

The court ordered XR to return to the Mother's home, requested the Office of the Children's Lawyer (OCL) to re-assign counsel for XR, directed continued CAS services, and adjourned the Father's motion to vary custody to a case conference.

Medical and police records related to XR were ordered sealed in the court file.

The applicant brought a motion to find the respondent in contempt for failing to comply with previous court orders requiring financial disclosure in the context of the respondent's motion to change child support.

The court found that the respondent deliberately breached the disclosure orders, causing unnecessary delay and expense.

Rather than striking the respondent's pleadings, the court ordered him to pay a penalty of $24,900, representing $100 per day of non-compliance, failing which the applicant could return her motion to strike his pleadings.

Angela Piccone and her husband sought an order to extend the time for service of their Statement of Claim on North Country Property Maintenance Inc. due to improper initial service by their previous lawyer.

North Country opposed, claiming prejudice from the delay.

The court granted the extension, finding that North Country and its insurer had early knowledge of the incident and claim, and the delay was not intentional.

The court determined that the extension would not cause unfair prejudice to North Country and would facilitate access to justice for the plaintiffs.

The applicants sought leave to bring a motion for summary judgment to evict their sister from a jointly owned property so it could be sold to fund their mother's long-term care.

The self-represented respondent sought an adjournment to obtain disclosure and file responding materials, claiming a constructive trust and a right to reside there.

The court found genuine issues requiring a trial, declined to grant leave for summary judgment, converted the application into an action, and set a timetable for disclosure and trial.

The applicant husband brought a motion to terminate a temporary, without-prejudice spousal support order of $5,000 per month after he was laid off from his employment.

He also argued that the respondent wife was intentionally unemployed.

The court dismissed the motion as premature, finding that the applicant was still receiving severance pay equivalent to his previous income, and the respondent was awaiting arbitration for her dismissal grievance.

The court declined to impute income to the respondent and held that the existing support amount remained appropriate based on the parties' current actual incomes.

The applicant sought an order preventing a newly incorporated ratepayers association from using the name of a former, unincorporated association.

The court found that the former association had ceased to exist due to prolonged inactivity and a lack of members in good standing.

The former president, acting as a trustee, validly assigned the association's name and funds to the new corporation to carry out the original association's purposes.

The application was dismissed, and costs were awarded to the respondent.

The applicant, Ernest Below, brought a motion for custody of the parties' two young children after the respondent, Stacy Sheene, moved with them from Florida to Ontario.

Sheene had returned to Florida for medical treatment, leaving the children with Below's parents, and intended to return to Florida with the children due to a breakdown in financial support and relationship with Below.

Below obtained a temporary order preventing their removal from Canada.

The court determined it lacked jurisdiction over the custody and access issues, finding that the children's habitual residence remained Florida.

The court declined to exercise jurisdiction under the Children's Law Reform Act, ordered the termination of the temporary order, and directed the children's return to Florida in Ms. Sheene's care, with Mr. Below responsible for travel expenses.

The applicant father brought a motion for contempt against the respondent mother for unilaterally relocating their three children more than 50 kilometres from Hamilton, contrary to a final mediated agreement and court order, and for restricting his access.

The mother brought a cross-motion for custody and transfer of proceedings, asserting she believed the order was withdrawn and alleging an assault by the father.

The court found the mother in contempt, rejected her justifications and assault allegations, and found her actions detrimental to the children's interests.

The court varied the previous order, granting primary residence of the children to the father and ordering an Office of the Children's Lawyer investigation.

The defendants sought leave to appeal an interlocutory costs order of $5,000 made against them for failing to fulfill undertakings.

The plaintiffs brought a cross-motion to dismiss the defendants' motion and to prohibit them from bringing further motions without leave.

The court dismissed the defendants' motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the costs order.

The court granted the plaintiffs' cross-motion, finding the defendants' conduct in attempting to re-litigate the costs issue constituted an abuse of process, and ordered that the defendants must seek leave before bringing any future motions.

The applicant moved to set aside a temporary support order made in 2012 and replace it with the terms of a 2013 separation agreement.

The respondent opposed the motion and sought a readjustment of support.

The court dismissed the motion, finding it lacked jurisdiction because a 2014 final order had already terminated all temporary orders.

Furthermore, the court noted that to enforce or vary the separation agreement, the parties must file it with the Ontario Court of Justice, as the Superior Court of Justice in Brampton is not a Family Court branch.

The applicant sought continuation of a temporary restraining order against a former common law spouse under s. 46 of the Family Law Act.

The court held that the applicant had reasonable grounds to fear for her physical and psychological safety, relying on evidence of past domestic assault, later threatening conduct, the respondent's alleged criminal associations, and the respondent's knowledge that the applicant had provided information to police.

The court found the applicant's fear was legitimate and had a current relationship to more recent events, notwithstanding the age of some earlier incidents.

The restraining order was continued and the applicant, being substantially successful on the only live issue, received partial indemnity costs.

The applicant sought spousal support and equalization of net family property following the breakdown of a 13-year arranged marriage.

The respondent abandoned the applicant in Dubai, retained her Canadian identification, and ceased participating in the proceedings, resulting in his pleadings being struck.

The court imputed an annual income of $90,000 to the respondent based on his credit card spending and mortgage applications, as he failed to provide financial disclosure.

The court ordered the respondent to pay an equalization payment of $229,508, retroactive spousal support of $40,950, and ongoing indefinite spousal support of $1,700 per month, noting the applicant's economic disadvantage from immigrating to Canada and her inability to work in her profession.