Douglas J. Spiller

The court considered an application by Wayne Biggar for spousal support and unequal division of net family property following the breakdown of his marriage to Donna Stratford (nee Biggar).

After reviewing the parties’ financial circumstances, contributions, and the evidence at trial, the court granted Mr. Biggar’s claim for spousal support on a non-compensatory basis, ordering a lump sum payment of $85,000 to be paid from Ms. Stratford’s share of the proceeds of sale of the matrimonial home.

The court dismissed Mr. Biggar’s claim for unequal division, finding that the remaining proceeds of sale should be divided equally, subject to adjustments for the spousal support award and a prior judgment against Mr. Biggar.

The court also found that, although an equalization payment was technically owed by Mr. Biggar, equitable considerations justified reducing it to zero.

The Ontario Court of Appeal dismissed the appeal of Robert Paul Ireland from a judgment declaring his Facebook posts defamatory of the Ontario Federation of All Terrain Vehicle Clubs, ordering their removal, and enjoining further defamatory posts.

The court found no procedural unfairness or error in the application judge’s decision, holding that Mr. Ireland’s failure to file a notice of appearance precluded him from participating in the application, and that the Federation’s courtesy in providing him with information did not create further obligations.

The court also rejected arguments regarding service and limitations, and found no reviewable error in the application judge’s findings on defamation and available defences.

The court considered a motion by the respondent, Robert Paul Ireland, to set aside a default judgment granted in favour of the Ontario Federation of All Terrain Vehicle Clubs.

The judgment, issued after Ireland failed to attend the hearing, declared certain statements made by him on Facebook to be defamatory and ordered their removal.

Ireland argued he did not attend due to accident, mistake, or insufficient notice.

The court found that he was properly served, aware of the proceedings, and intentionally chose not to participate.

The motion to set aside the judgment was dismissed.

The plaintiff, Royal Bank of Canada, sought summary judgment against Precision Markings Inc. and Isabell Helene Sickinger for a liquidated debt under a 2018 loan agreement.

Precision admitted liability, but Ms. Sickinger disputed personal liability, raising the defence of non est factum.

The court found no genuine issue for trial, holding that Ms. Sickinger was not misled and was not entitled to rely on non est factum, given her experience and the clarity of the agreement.

Judgment was granted in favour of the plaintiff for $212,421.80 plus interest.

The tenant appealed an eviction order and a subsequent review order of the Landlord and Tenant Board, alleging procedural unfairness and a reasonable apprehension of bias by the reviewing Member.

The tenant claimed he did not receive notice of the original hearing and that the reviewing Member improperly restricted his representative's conduct during the review hearing.

The Divisional Court dismissed the appeal, finding no evidence of procedural unfairness or bias, and held that the Member's conduct was a reasonable exercise of discretion to manage the hearing expeditiously.

The appellant tenant appealed a Landlord and Tenant Board eviction order, arguing she was denied procedural fairness.

The appellant had retained a paralegal the day before the hearing, who sent an agent to request an adjournment.

Due to a misunderstanding, the agent left before the adjournment was formally considered.

The hearing proceeded with the unrepresented appellant, who was temporarily disconnected and missed the landlord's evidence on the adjournment.

The Divisional Court found the Board's handling of the adjournment, the appellant's disconnection, and the failure to explain the process to the self-represented appellant amounted to a denial of procedural fairness.

The appeal was allowed and the matter remitted to a different Board member.

The appellant tenant, who suffers from a mental health disability, appealed a Landlord and Tenant Board order terminating her tenancy and evicting her due to disruptive and threatening behaviour towards other tenants.

The tenant argued the Board failed to properly consider the landlord's duty to accommodate her disability under the Human Rights Code, failed to consider relief from eviction under s. 83 of the Residential Tenancies Act, and denied her procedural fairness by relying on hearsay evidence.

The Divisional Court dismissed the appeal, finding the Board correctly determined that accommodating the tenant caused undue hardship to the landlord and other tenants, properly exercised its discretion regarding relief from eviction, and appropriately admitted and weighed hearsay evidence.

The landlord brought a motion to quash the tenant's appeal of a Landlord and Tenant Board eviction order, arguing the appeal was devoid of merit and an abuse of process.

The tenant, who suffers from a mental disorder, appealed on grounds including the LTB's failure to apply the correct Human Rights Code accommodation test, failure to meaningfully consider relief from eviction under s. 83 of the Residential Tenancies Act, and denial of procedural fairness.

The Divisional Court dismissed the motion to quash, finding the grounds of appeal raised arguable questions of law and the appeal was not an abuse of process.

The court also declined to lift the statutory stay of eviction or order security for costs.

The respondent father brought a motion for summary judgment to enforce Minutes of Settlement that resolved parenting time and eliminated his child support arrears, or alternatively, to vary his child support obligations due to financial hardship.

The court granted summary judgment on the parenting issues, finding no genuine issue for trial.

However, the court refused to enforce the settlement regarding child support arrears, holding that parents cannot bargain away a child's right to support, and directed that issue to trial.

The court also granted a temporary order reducing ongoing child support and arrears payments based on the father's reduced 2021 income.

The defendants brought a motion for security for costs under Rule 56.01(1) of the Rules of Civil Procedure, seeking $300,000 in total for the main action and a related counterclaim.

The court dismissed the motion, finding that the plaintiffs had recently paid over $150,000 in outstanding costs orders, the related counterclaim did not seek the same relief, and the action was neither frivolous nor vexatious.

Furthermore, the defendants failed to establish that the plaintiffs had insufficient assets in Ontario to pay costs.

This is a costs endorsement following an appeal.

The Court of Appeal for Ontario awarded the respondents costs of the appeal on a partial indemnity basis, fixed at $10,000 inclusive of disbursements and applicable taxes.

The decision was made after considering submissions from counsel.

The appellants appealed the dismissal of their claim for lack of jurisdiction and, alternatively, on forum non conveniens grounds, as well as seeking leave to appeal a costs order.

The motion judge had characterized the claim as contractual, not tortious, for jurisdictional purposes and found no real and substantial connection to Ontario.

The Court of Appeal upheld the motion judge's factual finding that the corporate defendant did not carry on business in Ontario, finding no palpable and overriding error.

The Court also affirmed that a court assessing jurisdiction can look beyond the plaintiff's characterization of the claim to its substance.

Regarding forum non conveniens, the Court found no error in the motion judge's balancing of factors, which heavily favoured Germany due to party agreements, defendant/witness residence, and evidence location.

Leave to appeal costs was refused as the grounds related solely to quantum.

The defendants brought a summary judgment motion to dismiss the plaintiffs' action for solicitor's negligence, breach of contract, breach of fiduciary duty, breach of trust, misappropriation of trust funds, misrepresentation, and conversion.

The defendants argued the action was statute-barred under the Limitations Act, 2002, or lacked expert testimony.

The court dismissed the summary judgment motion, finding a "plethora of genuine issues" requiring a trial, particularly concerning the discoverability of the claims, the circumstances of the consolidation of actions, and the alleged improvident settlement.

The court emphasized that there were significant credibility and reliability issues that could not be resolved summarily.

The applicants were successful in their application for judicial review of a Small Claims Court costs decision, which was remitted back to the Deputy Judge for reconsideration and provision of reasons.

In this costs endorsement, the court awarded costs to the applicants despite their counsel acting pro bono, noting that such awards promote access to justice.

The court rejected the applicants' claim for substantial indemnity costs, finding the result was not better than their offer to settle.

Balancing the factors under Rule 57.01(1) and the principle of proportionality, the court fixed costs at $5,000 all inclusive.

The moving party brought a motion for leave to appeal an order dated April 13, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000.

The Court of Appeal for Ontario issued a costs endorsement following an appeal brought by the Debtor, Wayne Biggar.

The Court found that Mr. Biggar's appeal was brought to the wrong court and constituted an obvious delay tactic.

As a result, the Creditors, Jack Pinder, Victor Dusik, and Innotech Safety Solutions Inc., were awarded substantial indemnity costs fixed at $11,500, inclusive of disbursements and applicable taxes, payable by Mr. Biggar within five days.

The applicants sought judicial review of a Small Claims Court costs decision where the Deputy Judge ordered them, as the successful party on a motion, to pay $1,500 in costs to the plaintiff.

This amount was 15 times the maximum allowable under Rule 15.07 of the Rules of the Small Claims Court absent special circumstances.

The Divisional Court found that the Deputy Judge's failure to provide reasons for the elevated costs award constituted a breach of procedural fairness.

The costs decision was set aside and remitted back to the Deputy Judge for reconsideration and provision of reasons.

The respondents (creditors) moved to quash an appeal brought by the appellant (debtor) from a garnishment order, arguing that the order was interlocutory and therefore not appealable to the Court of Appeal.

The Court of Appeal agreed, finding that the garnishment order was an interlocutory step in an ongoing oppression action, not a final disposition of the parties' rights or a discrete proceeding.

Consequently, the Court lacked jurisdiction to hear the appeal, which properly lay with the Divisional Court.

The appeal was quashed.

Following the dismissal of the plaintiffs' claim for lack of jurisdiction, the successful defendants sought costs of $30,000 on a partial indemnity basis.

The plaintiffs argued for costs of $5,000.

The court considered the principles of fairness, reasonableness, and proportionality under Rule 57.01, noting that the losing party should not be expected to pay for all additional costs incurred by senior counsel when junior counsel argued the motion.

Costs were fixed at $15,000 all-inclusive, reflecting what an informed client could reasonably expect to pay for a motion of moderate complexity.

The defendants moved to dismiss the plaintiffs' action for lack of jurisdiction or to stay it on the basis of forum non conveniens.

The dispute arose from a contract between the corporate plaintiff and the corporate defendant, which was accepted over the internet and contained a forum selection clause designating Germany.

The individual plaintiff attempted to plead the claims in tort and conspiracy to ground jurisdiction in Ontario.

The court found no real and substantial connection to Ontario, as the corporate defendant did not carry on business there and the tort claims were merely an attempt to convert a breach of contract action.

The motion to dismiss the action was granted.