Derek Knoke

The parties separated after a 32-year marriage.

Before the marriage, the respondent wife received shares in her father's business.

During the marriage, an estate freeze was executed, transferring the growth value of the shares to a new family trust settled by her father for $100.

The trial judge, feeling bound by prior appellate jurisprudence, excluded the wife's interest in the trust from her net family property as a gift after marriage.

The Court of Appeal allowed the appeal in part, distinguishing the prior case and holding that the trust interest was traceable to the pre-marital gift.

The trust interest was included in net family property, but the equalization payment was reduced to $18 million under s. 5(6) of the Family Law Act due to unconscionability.

Retroactive spousal support was ordered, but prospective support was denied.

The trial costs award against the appellant husband was upheld.

The appellant, a retiree, posted comments on a community Facebook page accusing the respondent real estate developer of corrupt business tactics and bribery.

The developer sued for defamation, and the appellant brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the action.

The motion judge dismissed the anti-SLAPP motion, allowing the defamation action to proceed.

On appeal, the Court of Appeal upheld the motion judge's decision, finding grounds to believe the defamation claim had substantial merit and that the appellant had no valid defence of fair comment, as the statements could be viewed as factual assertions and there was a basis to find malice.

The Court also upheld the finding that the likelihood of serious harm to the developer outweighed the public interest in protecting the expression.

However, the Court allowed the appeal on costs, reducing the motion judge's substantial indemnity costs award to partial indemnity.

The moving parties (plaintiffs) brought a motion to quash the responding parties' appeal of an order adding them as defendants in a medical malpractice action.

The moving parties argued the order was interlocutory and should be appealed to the Divisional Court.

The responding parties argued the order was final because it definitively dismissed their limitation period defence.

The Court of Appeal held that the motion judge's findings regarding the limitation period were preliminary and did not preclude the responding parties from pleading the defence at trial.

Consequently, the order was interlocutory, the appeal was quashed, and the matter was transferred to the Divisional Court.

A law firm appealed an application judge’s decision interpreting a contingency fee retainer agreement and rejecting its claim to a share of damages awarded on appeal.

The client had retained new counsel for the appeal, which resulted in a substantial damages award after an unsuccessful trial.

The firm argued it was entitled to fees under the retainer or alternatively on a quantum meruit basis.

The Court of Appeal held that the retainer expressly limited fee entitlement to damages recovered by settlement or judgment at trial and did not include recovery obtained on appeal.

The court also held that quantum meruit relief was unavailable where the parties had expressly defined the circumstances of payment.

The appeal was dismissed.

At a case conference for a contempt of court proceeding, the respondent appeared with newly retained counsel.

On consent, the matter was adjourned to allow counsel to prepare.

The court discharged the previously appointed amicus curiae, as the respondent was no longer self-represented.

The court also amended the title of proceeding to reflect the criminal nature of the contempt proceeding, while noting it would remain a sub-bundle in the civil file.

The appellant appealed a judgment awarding over one million dollars in damages to the respondents for personal injuries sustained in a motor vehicle accident.

The trial judge discharged the jury after finding that defence counsel breached the rule in Browne v. Dunn by failing to cross-examine the plaintiff on a significant piece of evidence regarding fluid leaking from his ear, which was later introduced through expert witnesses.

The trial judge found the breach irreparably tainted the jury and proceeded with a bench trial, ultimately accepting the plaintiff's evidence and rejecting the defendant's malingering theory.

The Court of Appeal upheld all aspects of the trial judge's decision, including the finding of a Browne v. Dunn breach, the discharge of the jury, the qualification of a treating physician as an expert witness, and the damages award.

The Centre for Free Expression (CFE) sought leave to intervene as a friend of the court in a civil appeal arising from the dismissal of a motion under s. 137.1 of the Courts of Justice Act (Ontario) in a defamation action.

The Court of Appeal for Ontario, per Roberts J.A., dismissed the motion for intervention, finding that while CFE had a clear mandate and interest in freedom of expression issues, its proposed submissions would not provide a distinct or useful contribution beyond those of the parties.

The court emphasized that intervention is to be granted sparingly, particularly in private disputes, and that the issues raised by CFE were already adequately addressed by the parties.

This costs endorsement follows the plaintiffs' success in defeating an anti-SLAPP motion to dismiss their libel action.

The court considered whether to award costs to the successful plaintiffs, referencing the discretion provided by section 137.1(8) of the Courts of Justice Act.

Finding that the defendant's impugned words were designed to cause serious detriment to the plaintiffs and undermine their business, the court exercised its discretion to award costs.

The court settled on a compromise amount, ordering the defendant to pay the plaintiffs $89,000 in all-inclusive costs.

The Court of Appeal for Ontario considered a motion by Barbara Lang-Newlands regarding the operation of the automatic stay under rule 63.01 of the Rules of Civil Procedure following a family law trial judgment.

The court addressed whether certain monetary awards (post-separation adjustments) should be characterized as support and thus exempt from the stay, and whether the stay should be lifted or maintained on various payments pending appeal.

The court declined to recharacterize the payments as support, but exercised its discretion to lift the stay on Ian Newlands' obligation to pay post-separation adjustments, given the risk that Barb would not recover the funds if the stay remained.

The court ordered Barb to pay Ian the net difference and expedited the appeal.

The court dismissed the defendant’s anti-SLAPP motion under section 137.1 of the Courts of Justice Act, finding that Facebook posts made by the defendant accusing the plaintiffs of corruption and bribery were not protected as fair comment.

The posts, which followed a controversial development approval in Niagara-on-the-Lake, were found to be based on falsehoods and reckless disregard for the truth, with the defendant admitting he had “no proof” for his accusations.

The court held that the harm to the plaintiffs’ reputation and business interests outweighed the public interest in protecting the defendant’s expression, and that the posts were motivated by an ulterior motive to thwart the plaintiffs’ development project.

The moving party sought leave to appeal a decision of the Ontario Land Tribunal.

The Divisional Court dismissed the motion for leave to appeal without costs.

The proposed defendants in a medical malpractice action brought a motion to strike a supplementary affidavit sworn by the plaintiffs' lawyer.

The proposed defendants argued the affidavit was an abuse of process, violated rules of professional conduct regarding lawyers acting as witnesses, and constituted improper reply evidence.

The court dismissed the motion, holding that disputes over whether the affidavit attempted to change or repudiate earlier evidence should be determined by the judge hearing the substantive leave motion.

The court also found that Rule 39.02(2) did not preclude the plaintiffs from delivering the supplementary affidavit because they had not cross-examined on an adverse party's affidavit.

The appellant, Juan Guillermo Gutierrez, appealed three orders from the Superior Court of Justice: a finding of civil contempt, a 30-day imprisonment sentence, and a full indemnity costs award of $563,485.00.

The contempt finding stemmed from his interference with a court-appointed receiver by signing a false declaration in Guatemala to initiate a criminal complaint against the receiver's representatives.

The Court of Appeal dismissed all three appeals, affirming the lower court's jurisdiction based on a "real and substantial link" to Ontario, upholding the contempt finding due to intentional breach of the receivership order, confirming the 30-day sentence as fit given the egregious nature of the contempt and lack of remorse, and upholding the full indemnity costs award due to the seriousness of the conduct and the financial burden placed on the judgment creditor.

The County of Simcoe appealed a trial judgment finding it 100% liable for catastrophic injuries sustained by Melinda Wasylyk in a motor vehicle accident caused by hazardous road conditions.

The County argued the trial judge erred in finding the road in disrepair, in her causation analysis, and in finding no contributory negligence.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the road was in disrepair due to ice and snow, that these conditions caused the accident, and that the plaintiff was not contributorily negligent, deferring to the trial judge's factual assessments.

This appeal concerned the appropriate remedy for a party who deliberately accessed the opposing party's privileged information.

The application judge had struck the appellant's Notice of Appearance, barred them from filing evidence, and ordered the Partition Application to proceed undefended.

The appellant argued that this remedy was unpleaded, unproven, and that lesser remedies were available.

The Court of Appeal dismissed the appeal, affirming the application judge's decision.

The court found no error in applying the three-part test for unauthorized access to privileged documents, particularly given the appellant's failure to rebut the presumption of prejudice or propose effective alternative remedies.

The plaintiffs initiated a defamation and civil conspiracy action against multiple defendants, including Tamina Eapen.

Ms. Eapen brought a motion to strike the Statement of Claim against her, arguing it disclosed no reasonable cause of action and was frivolous, vexatious, and an abuse of process.

The court found that the Statement of Claim failed to plead material facts against Ms. Eapen, particularly regarding the elements of defamation and civil conspiracy, and therefore struck the claim against her.

However, given the plaintiffs were self-represented, the court granted leave to amend the Statement of Claim.

The motion to dismiss the claim as frivolous, vexatious, and an abuse of process was adjourned pending the amended claim.

Costs were awarded to Ms. Eapen.

The moving parties sought to strike two expert reports and their references from the appeal book and compendium (ABCO) and the responding party's factum, arguing they were not evidence at trial.

The court, citing precedent, found that while the reports were not formally entered as exhibits, they were provided to the trial judge as aides memoire and should have been marked as lettered exhibits, thus forming part of the appeal record.

The motion was allowed in part, directing the responding party to amend the descriptions of the reports in the ABCO and factum to clearly state their non-evidentiary status.

The moving party, Juan Guillermo Gutierrez, brought a motion for leave to appeal the order of McEwen J. dated December 1, 2022.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding party, the Receiver, fixed at $5,000.

The Receiver sought costs of a contempt motion against the respondent on a full indemnity basis.

The respondent had been found in civil contempt for breaching an appointment order and sentenced to 30 days' imprisonment.

The court awarded costs on a full indemnity basis, finding the respondent's conduct egregious and highly disrespectful to the court and its appointed officer.

The quantum was fixed at $563,485, with a minor reduction for time spent on irrelevant facts.

The Receiver brought a contempt motion against the respondent for breaching an appointment order by interfering with the Receiver's exclusive authority and supporting a criminal complaint against the Receiver's representatives in Panama.

Having previously found the respondent in civil contempt, the court determined the appropriate penalty.

Finding that the respondent's conduct was a blatant and deliberate breach that undermined the court's authority, and that a fine would be insufficient for deterrence, the court ordered the respondent to be imprisoned for 30 days.