Douglas K. Gray

The plaintiff moved under Rule 59.06(2) to set aside or vary a prior order dismissing summary judgment, alleging fraud or newly discovered facts concerning the non-disclosure of a substantial payment from the defendant solicitor's trust account to a co-defendant paralegal, labelled "Sawah fees." The plaintiff also sought to compel the defendant solicitor's examination for discovery in Mississauga rather than Winnipeg.

The court found the non-disclosure suspicious but determined the new evidence was insufficient to overturn the summary judgment dismissal, concluding that the matter should proceed to trial for credibility assessments.

The court granted the request for discovery in Mississauga, citing efficiency and the simplified rules.

This costs endorsement followed a judgment where two wills were declared invalid, resulting in an intestacy where the plaintiff, Star Sweetnam, inherited the entire estate.

Sweetnam sought substantial indemnity costs, while the defendant estate trustees, Dianne Lesage and Terry Dooley, sought their own costs from the estate.

The court applied the modern "loser pays" principle in estate litigation, finding that the estate trustees acted unreasonably by rejecting two settlement offers from Sweetnam, particularly an early, modest offer.

The court also found Lesage's conduct adversarial and her claimed costs excessive.

Sweetnam's costs were fixed at $311,679.56 (after a 20% reduction for time spent on moot issues).

The court ordered Lesage and Dooley to pay Sweetnam's costs jointly and severally and denied their claims for costs from the estate, preventing Sweetnam from effectively paying the unsuccessful parties' costs.

The applicant, Xuan Luu, sought to set aside a $700,400 default judgment and corresponding writ of execution obtained by the judgment debtor's son, Mazen Abuomar, against his father, Mohamed Abuomar, alleging fraud.

The judgment was obtained shortly after the Sheriff initiated sale proceedings for Mohamed's property to satisfy Luu's prior judgments.

The court found numerous "badges of fraud," including suspicious timing, familial relationship, and lack of documentation, which the respondents failed to explain.

The court declared Mazen's judgment and writ void against Luu's interests.

Luu's request for a judicial sale of the jointly-owned property was dismissed, as the court found no statutory or equitable basis to compel the sale of a non-debtor joint owner's interest.

The plaintiff, Frances Wedlake, brought a motion for summary judgment against the defendants, James Jeffrey Richey (a solicitor) and Tracey Ann Richey, concerning two loans made by Wedlake to Richey.

One loan was secured by a mortgage on the Richeys' home, and the other by a promissory note.

Richey had borrowed money from his client, Wedlake, in violation of the Rules of Professional Conduct.

Richey claimed the loans were defrayed by unbilled legal services and that Wedlake authorized the mortgage discharge.

The court found no evidence to support Richey's claims, deemed the alleged mortgage discharge authorization not genuine or improperly obtained without independent legal advice, and granted summary judgment in favour of Wedlake for the outstanding amounts on both the mortgage and promissory note, and ordered the mortgage reinstated.

The applicant brought a motion for contempt against the respondents and a non-party solicitor, alleging they violated a court order requiring the solicitor to make certain documents available for inspection.

The court found that the solicitor intentionally transmitted "highly prejudicial" documents to the respondent, rather than making them available for inspection, and that the respondent subsequently failed to produce these documents to the applicant.

The court found both the respondent and the solicitor guilty of contempt beyond a reasonable doubt, based on the clear terms of the order, their knowledge of it, and their intentional actions.

The court deferred the imposition of penalties and remedies to a separate hearing, noting the seriousness of the affront to the administration of justice.

The Crown appealed the respondent's acquittal on an "over 80" charge.

The trial judge had found no reasonable and probable grounds for arrest or breath demand, leading to the exclusion of breath samples under s. 24(2) of the Charter.

The Superior Court of Justice found that the trial judge erred in law by not making a clear finding of fact regarding the respondent's slurred speech, which was a crucial factor in determining reasonable and probable grounds.

Without a definitive finding on this key indicium of impairment, the court could not determine with certainty if reasonable and probable grounds existed.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

The court determined two issues: the percentage of time a child spent with each parent and the applicant's income for child support effective January 1, 2017.

The court found that the child did not spend 40% of time with each parent, so s. 9 of the Child Support Guidelines did not apply.

The applicant's income was imputed at $75,000 per annum, effective January 1, 2017, as his reasons for leaving a well-paid job to "kick back" and spend more time with his son were insufficient to avoid financial responsibilities, and he also received undeclared cash payments.

The applicant sought injunctive relief and damages regarding a right-of-way over the respondents' land, alleging interference with its use and enjoyment, and requesting contribution to maintenance and snow clearing.

The court dismissed the application, finding that the right-of-way was limited to vehicular access to the applicant's garage, as determined by the instrument creating it and historical circumstances.

The respondents' fence was found not to substantially interfere with this purpose.

The court also determined that the destruction of stone pillars on the right-of-way was not unlawful given the land's Land Titles Absolute status, which extinguished possessory claims.

Furthermore, the respondents were not obligated to contribute to snow removal as they did not use the right-of-way in winter.

The claim for damages was dismissed as it could not be advanced by application.

Members of a charitable non‑profit corporation sought to set aside a board election on the basis that the process violated the corporation’s by‑laws and basic principles of fairness.

The court found that the interim board improperly expanded the membership list prior to the election and required members to reaffirm their memberships despite no authority for such requirement in the by‑laws.

The election was also conducted for a two‑year term despite the by‑laws specifying five‑year terms.

These irregularities went to the core of the electoral process and undermined the legitimacy of the result.

The court declared the election void and ordered that a new election be conducted under the supervision of an independent solicitor.

The court addressed disputes regarding the interpretation and implementation of Minutes of Settlement in estate litigation between family members and an estate trustee during litigation.

Following earlier endorsements clarifying settlement terms, the judge directed the parties to submit competing draft orders reflecting the intended disposition.

The principal issues concerned the timing of a payment obligation tied to a $500,000 amount from an estate interest and whether provisions addressing the estate trustee’s role should appear in the final order.

Applying a “final offer selection” approach, the court concluded that the draft orders proposed by the estate trustee most accurately reflected the settlement and prior endorsements.

The court therefore signed and entered those orders.

The defendants sought leave to appeal an order granting the plaintiffs leave to issue a Certificate of Pending Litigation in relation to a residential property.

The plaintiffs alleged they advanced funds toward the construction of a home that was not completed on time, resulting in termination of the agreement of purchase and sale and a claim for return of funds and an interest in the land.

The court considered the leave test under rule 62.02(4)(b) and assumed, without deciding, that there might be reason to doubt the correctness of the underlying order.

However, the court held that the proposed appeal did not raise an issue of sufficient importance beyond the parties to justify appellate intervention.

Leave to appeal was therefore refused and costs were awarded to the plaintiffs.

The accused was tried without a jury on charges of attempted murder, possession of a loaded restricted firearm, robbery, aggravated assault, and attempted obstruction of justice arising from a hotel room confrontation involving a sex worker and a client.

Surveillance video, text messages, and witness testimony showed the accused entered the room with a handgun during an argument over payment and a gun discharged shortly before the complainant fled with a head injury.

The court found the accused possessed and fired the firearm and caused the complainant’s injury, but the Crown failed to prove beyond a reasonable doubt that the injury was caused by the bullet or that the accused had the specific intent to kill.

The court also found the force used was not justified as defence of another and that the accused later attempted to influence a witness’s evidence through a letter.

Convictions were entered for possession of a loaded restricted firearm, aggravated assault, and attempted obstruction of justice, while the accused was acquitted of attempted murder and robbery.

Following Minutes of Settlement resolving estate litigation concerning farm property and estate assets, the parties disputed the interpretation of tax liability provisions in the settlement.

The responding party intended to pursue a tax strategy regarding estate filings and potential CRA assessments, while the moving party sought clarification and orders restricting what she characterized as a high-risk tax plan.

The court held that the Minutes of Settlement constituted a contract whose terms were clear and unambiguous when interpreted using standard contractual interpretation principles.

The agreement allocated full responsibility for tax restructuring, related transactions, and resulting liabilities to the responding party, including an obligation to indemnify the moving party and the estate trustee for any resulting liability.

The request for further clarification and restrictions was therefore dismissed.

The Crown brought an ex parte application seeking judicial authorization to disclose a redacted version of an accused’s statement to co‑accused without revealing that any redactions had been made.

The redactions were necessary to protect the identity of the accused as a confidential informant unrelated to the charges.

The court held that granting the request would effectively authorize the creation and use of evidence that was not what it appeared to be, which would improperly mislead participants in a judicial proceeding.

While recognizing the practical difficulty created by informer privilege and disclosure obligations in a multi‑accused prosecution, the court declined to provide such authorization.

The application was dismissed and the materials were ordered sealed.

The plaintiff bank brought a motion for summary judgment seeking recovery of $46,784.11 after it mistakenly credited mortgage payments drawn from a frozen bank account and later discharged the mortgage based on an incorrect payout statement.

The court held that the discharge of the mortgage did not extinguish the underlying debt, and allowing the defendants to retain the benefit of the bank’s mistake would constitute unjust enrichment.

The defendants’ argument based on the maxim ex turpi causa non oritur actio was rejected, as the bank’s breach of the freeze order was inadvertent and did not bar enforcement of the debt.

However, the court declined to rectify the land titles register to reinstate the mortgage because the parties could not be restored to their original position and the requested third mortgage would prejudice other mortgagees who were not parties to the proceeding.

Judgment was granted for the debt, and the defendants’ counterclaim was dismissed.

The appellant appealed convictions for assault and breach of probation arising from an incident in which he briefly touched a young complainant’s wrist while speaking with two elementary school students outside a school.

Because the complainants were under 18, counsel had been appointed under s. 486.3(1) of the Criminal Code to conduct cross-examination on behalf of the self-represented accused.

The appellant argued that the appointed counsel failed to pursue a critical defence theory that the complainants fabricated the allegation to avoid trouble with their parents for speaking with a stranger.

The court held that counsel appointed under s. 486.3 must pursue relevant and proper lines of inquiry requested by the accused, even if counsel might otherwise decline on tactical grounds.

The failure to pursue the proposed line of cross-examination deprived the appellant of a fair trial.

Rather than ordering a new trial, the court substituted findings of guilt but replaced the sentence with a conditional discharge and probation already completed.

In a criminal trial involving allegations of sexual misconduct against a minor, the court considered whether statements made by the accused to his former spouse and to his pastor were made to “persons in authority,” thereby requiring the Crown to prove voluntariness beyond a reasonable doubt.

The accused argued that the statements were induced after both individuals threatened to contact police.

Applying the framework from Hodgson, the court held that the test requires both a subjective belief by the accused that the listener could influence the prosecution and an objectively reasonable basis for that belief grounded in a relationship with police or prosecutorial authorities.

The evidence did not establish that the accused believed either individual was acting as an agent of the police or prosecution.

Consequently, the recipients were not persons in authority and the confessions rule did not apply.

The statements were therefore admissible.

The applicant brought a motion for contempt alleging the respondent repeatedly failed to comply with court‑ordered access exchange arrangements and sought a motion to change custody and child support orders.

The respondent brought a cross‑motion for contempt alleging breaches by the applicant.

Applying the test for civil contempt from Hobbs v. Hobbs, the court found beyond a reasonable doubt that the respondent deliberately disobeyed a clear order by refusing to deliver the child to the designated exchange location, effectively denying the applicant access for several months.

The court declined to vary custody, finding no evidence that changing the child’s residence was in the child’s best interests, but granted limited relief regarding child support arrears due to the applicant’s health‑related inability to work.

The respondent’s contempt motion was dismissed.

The defendant sought leave to amend its statement of defence to assert adverse possession and add a counterclaim claiming ownership of disputed land.

The plaintiff argued the amendment constituted withdrawal of an admission because the original defence relied on acquiescence, which would defeat an adverse possession claim.

The court held that the original pleading did not clearly amount to an admission but assumed it might and applied the test for withdrawal of admissions.

The proposed amendment raised a triable issue, the defendant provided a reasonable explanation based on newly discovered aerial photographs supporting historical possession, and no non-compensable prejudice was established.

Leave to amend the pleading and assert the counterclaim was granted.

An application was brought seeking appointment as guardian of property and guardian of the person for an elderly individual alleged to be suffering neglect while living with two children who held powers of attorney.

A capacity assessment confirmed the individual was incapable of managing property and personal care.

The court considered whether guardianship was necessary under the Substitute Decisions Act, 1992, given the existence of valid continuing powers of attorney.

The court held that guardianship should not be imposed where an adequate, less restrictive alternative exists and where strong evidence of misconduct by attorneys is absent.

Because the allegations of neglect were disputed and could not be resolved on the affidavit record, and because the evidence did not establish that the incapable person’s interests were being harmed, the court declined to disturb the existing arrangements.