David M. Pomer

At a status hearing under Rule 48.14 of the Rules of Civil Procedure, the court considered whether the plaintiff had shown cause why its action should not be dismissed for delay.

The plaintiff attributed the delay primarily to misconduct and inaction by an associate lawyer who had carriage of the file.

The court held that internal law firm disorganization, lack of supervision, and unanswered correspondence from opposing counsel did not constitute a reasonable explanation for prolonged inactivity.

Although no specific prejudice to the defendants was proven, the presumption of prejudice from delay was not displaced.

The court exercised its discretion to dismiss the action for delay.

The plaintiff purchased a pre-construction condominium unit from the vendor, The Printing Factory Lofts Inc. Due to unexpected hydro duct placement, an exterior door was eliminated from the unit's plans.

The plaintiff closed the transaction under protest and sued the vendor, as well as Beaverbrook Homes Inc. and Anthony Lanni, for the loss of the door and construction deficiencies.

Beaverbrook and Lanni moved for summary judgment to dismiss the claims against them.

The court granted the motion, finding that Beaverbrook and Lanni were not parties to the Agreement of Purchase and Sale, which contained an entire agreement clause and specific releases.

The court also found no evidence of actionable misrepresentations by the moving parties, applying the parol evidence rule.

The respondent in a family law proceeding brought a motion seeking rescission or variation of an interim support order and requesting that child and spousal support arrears be fixed at zero and paid from the proceeds of the sale of the matrimonial home.

The applicant opposed and brought a cross‑motion seeking to prevent the motion from being heard due to the moving party’s failure to comply with prior costs orders and requesting payment of legal, accounting, and dental expenses from the trust funds.

The court exercised discretion to hear the motion despite non‑compliance with prior cost orders but declined to rescind the interim order entirely.

The court found insufficient evidence to eliminate support arrears and expressed serious concerns regarding the moving party’s financial disclosure and credibility.

Support obligations were varied based on declared income, arrears were not extinguished, and certain legal, accounting, and dental expenses were ordered paid from trust funds.

In a family law proceeding following the breakdown of an 18‑year relationship, the applicant sought custody, child and spousal support, exclusive possession of the matrimonial home, and an unequal division of net family property.

At a case conference, the court addressed extensive disclosure issues between the parties concerning finances, property transactions, corporate interests, and other assets.

The court ordered both parties to produce comprehensive financial disclosure, including bank statements, tax returns, corporate records, litigation documents, and records relating to real property and business interests.

Directions were also given requiring requests to be made to several non‑parties for production of documents and permitting further motions for compliance where necessary.

The matter was scheduled to return for a settlement conference after completion of disclosure and any compliance motions.

The appellant appealed an order dismissing his motion to set aside an interim, interim without prejudice order requiring him to pay child and spousal support.

The appellant argued the original order was obtained by fraud and without notice, and that the motion judge failed to consider the Child Support Guidelines.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the order was not obtained by fraud, and noting that the original order was designed to maintain the status quo pending a case conference.

A default hearing brought by the Director, Family Responsibility Office against a support payor for arrears of child and spousal support totalling $68,335.56.

The payor had been in default since December 2008 following job loss and subsequent development of severe clinical depression and anxiety disorder.

The Director sought an order for incarceration.

The court found that the payor had discharged his burden of proof by demonstrating he was unable, for valid reasons, to pay the arrears or make subsequent payments.

The court dismissed the incarceration remedy and instead imposed reporting and disclosure obligations, including annual submission of tax returns, financial statements, and medical reports regarding the payor's employability.

The moving party sought to vary a prior order requiring payment of child and spousal support, arguing a material change in circumstances due to loss of employment, reduced income, depression, and loss of a driver’s licence.

The court held that the moving party failed to establish a significant and sustained change in circumstances or demonstrate that his reduced income reflected his true earning capacity.

The medical evidence relied upon was inadequate to establish unemployability and did not meet the standards for expert opinion evidence.

The court maintained the previously imputed income under s. 19(1) of the Child Support Guidelines and declined to vary the support order or cancel arrears.

The motion to vary was dismissed, while the Ministry’s assignment of support arrears relating to social assistance payments was confirmed.

The applicant alleged discrimination in employment on the basis of disability, claiming his employment was terminated while he was off work.

Prior to the hearing, the applicant signed a release settling the matter with the corporate respondent but sought to continue the application against the personal respondent.

At the hearing, the corporate respondent's counsel requested a last-minute adjournment by telephone, which the Tribunal denied due to an inadequate explanation for the delay.

The Tribunal reviewed the release and found its plain language barred the applicant from continuing the application against both the corporate respondent and its officers or employees, including the personal respondent.

The application was dismissed.

The appellants appealed a Small Claims Court decision dismissing their claim against the respondent bank for $600.

The bank had exercised a right of off-set to recover funds for an outstanding credit card debt subject to a 1997 default judgment.

The Divisional Court upheld the trial judge's decision, agreeing with the adverse inference drawn from the failure of the key appellant to testify.

The court also upheld the costs award against the appellants' agent personally due to his unreasonable conduct during the trial.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability against a corporate respondent and a personal respondent.

At the scheduled hearing, the personal respondent failed to appear.

The applicant and the representative for the corporate respondent advised they had reached a verbal settlement and wished to proceed against the personal respondent only.

Given the complex and acrimonious relationship between the respondents and ongoing civil litigation regarding their partnership, the Tribunal adjourned the hearing to ensure the personal respondent received proper notice and to seek clarification on the corporate authority and vicarious liability issues.

The appellants appealed a trial decision regarding a loan, attempting to advance a new defence that Mrs. Dhir was not a party to the loan.

The Court of Appeal dismissed the appeal, holding that the defence was not pleaded in the statement of defence or advanced at trial, making it too late to raise on appeal.

The court also noted there was evidence from which her participation could be inferred.