Douglas K. Gray

The plaintiff sought certification of a class proceeding on behalf of operators of Sears Hometown Stores who entered into standard Dealer Agreements with the defendants.

The claim alleged that the contractual arrangements constituted franchise relationships under the Arthur Wishart Act (Franchise Disclosure), 2000, triggering statutory disclosure obligations and a duty of fair dealing, and alternatively alleged breach of contract, breach of the duty of good faith, and unjust enrichment arising from the defendants’ compensation structures, advertising practices, and direct sales into dealers’ market areas.

The court applied the certification criteria under s. 5(1) of the Class Proceedings Act, 1992 and found that the pleadings disclosed viable causes of action, the proposed class was identifiable, and the claims raised common issues concerning the defendants’ standardized contractual practices and compensation structure.

The court further held that a class proceeding was the preferable procedure and that the proposed representative plaintiff was adequate despite not currently operating a store and lacking resources to satisfy potential costs awards.

The action was certified as a class proceeding with revised common issues.

The applicant sought to vary a week‑on/week‑off parenting arrangement so that the child would primarily reside with her.

The dispute centred on allegations that the child was unhappy during time spent with the respondent and required emotional space to address her feelings.

The court considered the status quo principle but found special circumstances justified altering the existing arrangement.

Relying in part on evidence from the child’s counsellor and the child’s expressed wishes, the court ordered that the child reside with the applicant and spend time with the respondent in accordance with the child’s wishes.

A parenting assessment under s. 30 of the Children’s Law Reform Act was also ordered.

Following a scheduled review of custody and access arrangements in a high‑conflict family law matter, the court considered updated evidence including affidavits, a clinical investigator’s report from the Office of the Children’s Lawyer, and counselling records.

The court addressed preliminary issues including whether unpaid costs should bar a party from further participation and whether privileged interview notes obtained inadvertently should be returned and destroyed.

Assessing the best interests of the children, the court found significant evidence of parental alienation by the respondent affecting the youngest child’s perceptions of the applicant.

The court determined that maintaining the existing shared arrangement risked further damage to the child’s relationship with the applicant.

Custody was therefore confirmed with the applicant, with the youngest child ordered to primarily reside with the applicant and the respondent receiving alternate‑weekend access.

Following a successful family law motion, the court addressed costs.

The successful party sought full recovery costs while the unsuccessful party argued for no costs or a nominal award.

Applying Rule 24(11)(b) of the Family Law Rules, the court considered the reasonableness of the parties’ conduct.

The court found that communications from the responding party’s counsel contained inappropriate accusations and unnecessarily escalated the dispute.

As a result, the court awarded full recovery costs with a punitive element to mark its disapproval of the behaviour.

The plaintiff moved for summary judgment seeking the return of a $50,000 deposit after refusing to close a real estate transaction, alleging a misrepresentation regarding the maturity date of an assumed mortgage.

The defendant argued the motion was premature because the action proceeded under Rule 76 (simplified procedure) and discovery steps had not yet occurred, preventing the defendant from obtaining documents and evidence potentially showing the plaintiff affirmed the contract after learning of the misrepresentation.

The court held that, particularly under the simplified procedure where cross‑examination on affidavits is restricted, fairness requires that parties have a meaningful opportunity to obtain documentary and discovery evidence before responding to a summary judgment motion.

The court found that the defendant had not yet been able to put its best foot forward and that there remained a genuine issue requiring trial regarding potential affirmation of the contract.

The summary judgment motion was therefore dismissed without prejudice.

The accused was tried for three counts of robbery using a firearm and one count of breach of probation arising from a home invasion robbery.

The evidence established that the accused and an accomplice attended the victims’ apartment intending to steal property and assault the occupant, while another participant wielded a sawed‑off shotgun.

The court rejected the accused’s claim that he was unaware of the firearm and accepted evidence from multiple witnesses that the firearm had been displayed and discussed beforehand.

Applying party liability under s. 21 of the Criminal Code, the court held that the accused knowingly participated in a common plan to commit a robbery in which a firearm would be used.

The accused was therefore convicted of three counts of robbery with a firearm and breach of probation.

The respondent father brought a motion to stay an Ontario application for child support on the basis that he resided in Florida and that Ontario should decline jurisdiction under forum non conveniens or require the claim to proceed under the Interjurisdictional Support Orders Act.

The court applied the real and substantial connection test and held that the child’s ordinary residence in Ontario constituted a sufficient presumptive connecting factor to ground jurisdiction.

Relying on Court of Appeal authority, the court found that the Interjurisdictional Support Orders Act does not displace jurisdiction under the Family Law Act but provides an alternative procedure.

The respondent failed to demonstrate that Florida was a clearly more appropriate forum.

The motion to stay the Ontario proceeding was dismissed.

The plaintiff lender sought to enforce a second mortgage arising from a refinancing scheme involving the defendants’ former matrimonial home.

The self-represented defendant argued that the registered purchaser held title as a bare trustee for him and that the second mortgage had been executed without his knowledge and was therefore not binding.

The court rejected this evidence, finding the defendant had full knowledge of the financing structure and had participated in arranging the second mortgage.

Email correspondence and surrounding circumstances demonstrated that he acknowledged the debt and promised repayment after default.

The court held the second mortgage was valid and enforceable and ordered that the proceeds of sale held in trust be released to the plaintiff lender.

A defendant brought a motion to dismiss an action alleging fraudulent conveyance and to discharge a certificate of pending litigation registered against a matrimonial home.

The moving party argued that the claim was barred by a prior full and final release executed after settlement of related debts.

The court held that interpretation of the release required consideration of the surrounding circumstances and could not be determined without a trial, so dismissal of the action was refused.

However, the court found that the release was a material fact that should have been disclosed when leave to register the certificate of pending litigation was obtained.

Because of this non-disclosure, the certificate of pending litigation was discharged.

In an undefended family law motion to change a prior support order, the respondent resided in the United States and had been personally served in Georgia by a private process server.

The court considered whether the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applied to family law proceedings governed by the Family Law Rules.

The court held that family law proceedings are civil matters and therefore the Convention applies, and its procedures are mandatory when service occurs in a contracting state.

The court concluded that service by a certified Georgia process server complied with Article 10(c) of the Convention.

Having found valid service and no response from the respondent, the court allowed the applicant to proceed with an undefended trial and granted the requested relief.

The applicant brought a motion seeking a finding of contempt against the respondent for allegedly breaching a consent access order relating to the parties’ children.

Although affidavit evidence conflicted on most alleged breaches, the court found that the respondent had withheld access for approximately two weeks and that her justification for doing so lacked credibility.

Despite concluding that the elements of civil contempt could have been established beyond a reasonable doubt for that incident, the court declined to make a formal contempt finding.

Emphasizing that contempt in family law matters is a remedy of last resort, the court determined that the circumstances did not warrant such a sanction at that time.

The motion was dismissed, though the respondent’s conduct would be considered on the issue of costs.

A non‑party developer sought a protective order restricting disclosure of its financial and project financing documents produced in litigation concerning a municipal RFP process.

The moving party argued the information was confidential and that disclosure to a competitor should be limited to counsel and experts and sealed from the public record.

Applying the test in Sierra Club of Canada v. Canada (Minister of Finance), the court held the evidence did not establish a real and substantial risk of harm or a sufficiently important commercial interest.

The court emphasized the open court principle and the public interest in transparency where allegations of political influence and misconduct in a municipal procurement process were raised.

The motion for a protective and sealing order was dismissed, though the court ordered reciprocal disclosure of equivalent financial documents relating to the plaintiff’s proposal.

A high‑conflict custody dispute involving three children where the parents made mutual allegations of parental alienation and sexual abuse.

After extensive evidence, including testimony from police, child protection authorities, medical professionals, and an Office of the Children’s Lawyer clinical assist, the court found no deliberate sexual abuse and concluded the allegations were largely influenced by the responding parent.

The court determined that the views of the older children favouring residence with the applicant were independently formed, while the younger child’s views were likely influenced by the responding parent.

Applying the best interests test under the Children’s Law Reform Act, the court awarded the applicant sole custody of all three children.

Access for the responding parent to the older children was to occur according to their wishes, while a structured transitional schedule was ordered for the younger child, with counselling and a future judicial review.

The applicant sought a declaration requiring its insurer to pay legal defence costs in a wrongful dismissal action brought by a former employee.

The insurance policy excluded indemnity for wrongful termination damages but contained an endorsement providing up to $100,000 in legal defence costs for claims including wrongful termination, subject to a deductible.

The insurer refused coverage, arguing the claim involved intentional conduct and was excluded by policy terms and the fortuity principle.

The court held that the pleadings contained at least a possibility that the claim fell within coverage and therefore triggered the insurer’s duty to defend.

The insurer was ordered to pay the applicant’s defence costs relating to the wrongful dismissal claim, subject to the deductible and policy limits.

A mortgagee applied to pay surplus sale proceeds from a power of sale into court where competing claims existed between joint mortgagors and an execution creditor.

One respondent had filed a consumer proposal under the Bankruptcy and Insolvency Act and argued the execution creditor’s writ could not attach to her share of the surplus due to the statutory stay.

The court held that a writ of execution filed with the sheriff constitutes an encumbrance and a subsequent encumbrancer under s. 27 of the Mortgages Act.

Accordingly, the execution creditor had to be paid from the surplus before any residue became payable to the mortgagors.

The remaining residue was divided equally between the joint owners.

Both parents brought motions to change a prior consent parenting order concerning custody, decision‑making, travel, and parenting arrangements for a child.

The court considered whether there had been a material change in circumstances sufficient to vary the order.

Evidence demonstrated persistent conflict and an inability to cooperate in joint decision‑making, including disputes about medical care, extracurricular activities, travel documentation, and scheduling.

The court concluded that joint decision‑making had become unworkable and granted the mother unilateral decision‑making authority following consultation with the father, while maintaining the existing parenting schedule.

The court also ordered retroactive and ongoing contributions for special or extraordinary expenses and an adjustment to guideline child support.

Contempt motions brought by both parties were dismissed despite findings that each had deliberately breached aspects of the order.

The accused applied under s. 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings, alleging a violation of their right to be tried within a reasonable time under s. 11(b).

The court assessed delay under the framework from R. v. Morin, allocating periods between inherent time requirements, Crown delay, and institutional delay.

Crown and institutional delay totalled approximately 19 months, modestly exceeding the Morin guideline range of 14–18 months.

While much of the claimed prejudice was typical of criminal charges, one accused demonstrated significant personal, financial, and health-related prejudice arising from the delay.

Balancing the factors, including prejudice and the seriousness of the charges, the court found the delay unreasonable and ordered a stay of proceedings.

The applicant brought a motion to enforce a family arbitration award arising from minutes of settlement reached during mediation, while the respondent moved to set aside the settlement and award.

The respondent alleged she lacked the capacity to understand the agreement due to medication and anxiety during the mediation.

The court held that the respondent failed to establish incapacity or that the applicant had knowledge or constructive notice of any incapacity at the time of settlement.

The psychological evidence did not establish that the respondent was incapable of understanding the proceedings.

The court therefore enforced the arbitration award and dismissed the motion to set aside the minutes of settlement.

The plaintiff brought a motion for judgment based on promissory notes totaling more than $8 million CAD and $290,750 USD, supported by a Confirmation of Indebtedness and a Consent to Judgment signed by the defendant with independent legal advice.

The defendant filed a statement of defence and counterclaim alleging that the notes were executed only to assist the plaintiff with banking arrangements and that the plaintiff breached an investment agreement.

The court found the defence consisted of unsupported bald allegations and that the documentary evidence, including the acknowledgment of indebtedness and consent to judgment, was clear and unambiguous.

Applying the summary judgment principles from Combined Air Mechanical Services Inc. v. Flesch, the court concluded there was no genuine issue requiring a trial.

Summary judgment was granted to the plaintiff and the defendant’s counterclaim and motion to transfer the matter to Toronto were dismissed.

An execution creditor sought an order compelling a mortgagee bank to produce a mortgage statement to permit the sheriff to sell a debtor’s property to satisfy a judgment.

The mortgagee refused to disclose the statement on the basis that disclosure would violate the Personal Information Protection and Electronic Documents Act (PIPEDA).

After the creditor examined a representative of the mortgagee under Rule 60.18 and the bank maintained its refusal, the creditor renewed the motion.

The court held that, in light of binding Court of Appeal authority interpreting PIPEDA, disclosure of the mortgage statement was prohibited.

The motion to compel production was therefore dismissed.