Douglas K. Gray

The franchisor, Mr. Lube, brought an application to enforce a sublease provision requiring the franchisee to pay an additional 2% rent based on gross sales.

The franchisee brought a cross-application seeking a declaration that it was not required to pay the amount, arguing it was a disguised franchise fee prohibited by a prior agreement and was not properly disclosed under the Arthur Wishart Act.

The court found that the 2% rent was clearly disclosed in the franchise disclosure document and the executed sublease.

The court rejected the franchisee's argument of non est factum, noting the franchisee's principal failed to read the documents.

The court also held that the percentage rent was not a franchise fee.

The franchisor's application was granted and the franchisee's application was dismissed.

In a certified class proceeding regarding a franchise dispute, the plaintiff sought to bring a motion for partial summary judgment on the issue of whether the defendant was a franchisor under the Arthur Wishart Act.

The defendant opposed, arguing that all issues should proceed to the scheduled common issues trial.

The court held that permitting a partial summary judgment motion would not be proportionate, expeditious, or cost-effective, as it risked creating multiple final judgments and appeal routes.

The court exercised its power under section 12 of the Class Proceedings Act to prohibit the plaintiff from proceeding with the motion, directing that all issues be determined at the common issues trial.

The applicant sought an order to remove a mature black walnut tree located on the property line between his and the respondents' properties, arguing that falling nuts hitting his roof constituted a private nuisance.

The court applied the two-part test for private nuisance, finding that the interference was neither substantial nor unreasonable.

The court noted the nuts only fell for a few weeks a year, and the property was located in a heritage conservation district known for its mature trees.

The application was dismissed with costs awarded to the respondents.

The plaintiff brought a motion to certify a class proceeding against the defendant employer for unpaid overtime.

The proposed class included non-management employees subject to the defendant's overtime policy.

The court found that the pleadings disclosed valid causes of action in breach of contract, unjust enrichment, and negligence.

The court certified the action, finding that there was an identifiable class, common issues regarding systemic practices and aggregate damages, that a class proceeding was the preferable procedure, and that the plaintiff was an appropriate representative.

Following a finding of civil contempt against a respondent and his former solicitor for bartering non-compliance with a document production order, the court held a penalty hearing.

The court refused to allow the contemnors to revisit the initial contempt finding.

Finding that the contemnors' actions resulted in the disappearance of highly relevant documents and deprived the applicant of a fair hearing, the court struck the respondents' responding material and granted default judgment.

To denounce and deter the serious misconduct of bartering compliance with a court order for personal advantage, the court sentenced both the respondent and his former solicitor to 90 days of incarceration.

The appellant appealed his conviction for impaired driving, arguing that a 33-minute delay in administering an approved screening device (ASD) test at the roadside violated his Charter rights under ss. 8, 9, and 10(b).

He also argued the trial judge provided inadequate reasons and relied on inadmissible evidence compelled by statute.

The Superior Court of Justice dismissed the appeal, finding the 20-minute investigation to form reasonable suspicion and the 13-minute ASD administration were reasonable.

While the trial judge erred in considering the appellant's compelled admission of drinking as direct evidence of impairment, the error was harmless given the overwhelming admissible evidence of impairment.

The plaintiff, Concentra Financial Services Association, and the defendant, Kenneth Rawling, brought cross-motions for summary judgment regarding a mortgage in default.

The defendant counterclaimed for a refund of all mortgage payments, alleging the mortgage was fraudulently procured.

The court found that the defendant was a paid participant in the fraudulent scheme and could not claim the mortgage was invalid.

The defence of non est factum was rejected as the defendant knew he was signing a mortgage and failed to read the documents.

The court also determined that the fraudulent misrepresentations by the solicitor, who acted for both parties, did not bind the plaintiff, as the solicitor's actions were in the interest of the fraudsters and the defendant, not the plaintiff.

Summary judgment was granted in favour of the plaintiff, and the defendant's counterclaim was dismissed.

This case involved a lengthy trial over custody and access to the parties' youngest child, Adam, and equalization of net family property.

The court considered the child's views and preferences, OCL recommendations for a parallel parenting regime, and financial claims.

The court found both parents contributed to conflict but were good parents when not litigating.

A joint custody order with parallel parenting was issued, with specific decision-making authority assigned to each parent for education and medical care, and an equalization payment ordered from the applicant to the respondent after various adjustments.

No child or spousal support was ordered.

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 plaintiff challenged the validity of two wills executed by her late father shortly after he was diagnosed with a terminal brain tumour.

The wills entirely disinherited the plaintiff and her children.

The court found that the testator lacked testamentary capacity when he executed both wills, as his cognitive functions were impaired by the tumour, poorly managed diabetes, and various medications, leading to insane delusions that affected his testamentary dispositions.

The wills were declared invalid.

The plaintiff's alternative claims for undue influence, proprietary estoppel, and dependant support under the Succession Law Reform Act were dismissed.

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 applicants, an immigration detainee and a remand detainee housed in a maximum security provincial correctional facility, brought an application for habeas corpus and a remedy under s. 24(1) of the Charter.

They alleged that frequent and unpredictable lockdowns, primarily caused by staff shortages, violated their Charter rights.

During lockdowns, inmates were confined to their double-bunked cells for 24 hours a day with limited access to showers, phones, and programs.

The court found that the conditions during the lockdowns, which occurred approximately 50% of the time, constituted cruel and unusual treatment in violation of s. 12 of the Charter.

The court declined to order a systemic remedy or a transfer, but awarded Charter damages of $60,000 to the immigration detainee (payable jointly by Ontario and Canada) and $25,000 to the remand detainee (payable by Ontario).

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.

The Crown applied for an order for substituted service or to dispense with service of a Notice of Appeal regarding a summary conviction acquittal.

The court held that while the Criminal Code explicitly permits substituted service for indictable appeals, it omits such a provision for summary conviction appeals.

The court concluded that the Criminal Proceedings Rules permitting substituted service in this context are inconsistent with the Criminal Code and therefore ineffective.

The application was dismissed for lack of jurisdiction.

The defendant brought a motion for summary judgment, arguing the plaintiff's action on a $138,000 promissory note was statute-barred.

The central issue was whether the plaintiff made a clear demand for payment in 2012, which would have triggered the limitation period.

The court found that determining when a demand was made required assessing credibility, which could not be fairly done on a paper record or through a mini-trial.

The motion for summary judgment was dismissed, and the matter was ordered to proceed to trial.