Edwin G. Upenieks

The applicant son brought an urgent motion to suspend the 2024 powers of attorney appointing the respondent daughter as the attorney for property and personal care for their incapable mother.

The applicant alleged elder abuse and neglect by the respondent.

The court found the applicant's evidence of misconduct unreliable and often contradicted by medical and functional assessments.

Applying the test for terminating a power of attorney, the court held the applicant failed to show strong and compelling evidence of misconduct or neglect.

The motion was dismissed on an interim interim basis, the 2024 powers of attorney remained in force, and the mother was permitted to return to the respondent's care.

The respondent was awarded substantial indemnity costs of $45,000.

This is an appeal from an order dismissing a motion to set aside a noting in default.

The appellants (defendants in the original action) had repeatedly delayed filing a defence, despite extensions and changes in counsel.

The motion judge applied the principles for setting aside a noting in default, considering the full context, including the parties' behaviour and reasons for delay.

The Court of Appeal found no error in the motion judge's comprehensive analysis and dismissed the appeal, affirming that the plaintiff was entitled to proceed given the defendants' prolonged non-compliance.

This motion concerned the defendants' application to set aside a noting of default in a simplified procedure action.

The court reviewed the defendants' extensive and unexplained delays in filing a defence, noting a pattern of missed deadlines and a two-month delay in retaining new counsel after terminating previous counsel.

Despite the general preference for resolving disputes on their merits, the court found the defendants' conduct demonstrated "shocking laxity" and deliberate delay.

The motion to set aside the noting of default was dismissed, with costs awarded to the plaintiff.

The Applicant landlord sought to terminate a commercial lease and obtain a Writ of Possession, arguing the Respondent tenant failed to timely exercise its renewal option and breached lease terms.

The Respondent cross-applied for a declaration of valid renewal or relief from forfeiture.

The court found the tenant's renewal notice was submitted out of time, rendering it null and void, and dismissed the tenant's request for equitable relief from forfeiture, emphasizing strict compliance with renewal provisions in commercial leases.

This appeal concerned the interpretation of a will clause granting an option to purchase "the farming business carried on by me." The testator had ceased active farming years prior to her death, instead leasing the land.

The application judge found the farming business had ceased, causing the option to lapse.

The Court of Appeal reversed, holding that the application judge erred by not applying the presumption under s. 22 of the Succession Law Reform Act, which states a will speaks as if made immediately before death.

The Court found that the testator was still carrying on a farming business at the time of her death through leasing the land and declaring farm income, thus the option was valid.

The applicant law firm sought an interpleader order regarding $83,831.83 held in its trust account.

The funds were originally part of an escrow agreement related to construction liens.

After the liens were settled, a judgment creditor of one of the contractors served a notice of garnishment on the applicant.

Both the property owner and the judgment creditor claimed entitlement to the funds.

The court granted the interpleader order on consent, allowing the applicant to pay the disputed funds into court as it claimed no beneficial interest and faced competing claims.

The moving parties brought a motion for leave to appeal an order of Daley J. dated April 12, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $6,500.

In a long-running dispute over the ownership and management of medical schools, the respondents sought leave from the case management judge to bring a motion to set aside or vary a prior court order under Rule 59.06(2).

The respondents relied on a foreign court order as fresh evidence.

The court denied leave, finding that the foreign order did not constitute fresh evidence that would have changed the result, the respondents had delayed significantly in raising it, and the proposed motion was an abuse of process attempting to relitigate fully adjudicated issues.

The applicant brought a guardianship application regarding one of the respondents, which was dismissed.

The respondents sought costs.

The court found no reason to depart from the normal rule that costs follow the event.

The court awarded partial indemnity costs to the respondents, fixing the costs at $56,224.11 for one respondent and $44,000 for the other, payable by the applicant in three instalments.

The claimants sought compensation for the partial taking of their apple orchard lands by the Regional Municipality of Halton for road widening purposes.

The parties indicated a desire to participate in Tribunal-assisted mediation following document production.

The Tribunal scheduled a five-day video hearing to commence in November 2022 and issued a procedural order governing the steps leading up to the hearing, including discoveries, mediation, and the exchange of witness statements.

The appellant appealed a costs decision arising from a summary judgment motion.

The motion judge had awarded substantial indemnity costs against the appellant personally, based on a finding that the appellant's counsel breached his duty to the court by failing to bring a relevant, determinative case to the court's attention.

Although the underlying action settled and the appeal became moot, the lawyer was granted intervenor status to appeal the findings of professional misconduct.

The Divisional Court allowed the appeal, holding that the motion judge breached procedural fairness by making findings of professional misconduct based on his own research without giving the lawyer notice and an opportunity to be heard.

The plaintiff tire distributor sued the corporate defendant and its sole proprietor for unpaid invoices totalling $659,908.87, relying on a personal guarantee allegedly signed by the proprietor.

The action against the corporate defendant was stayed due to bankruptcy.

The proprietor admitted the corporate debt but denied knowingly signing a personal guarantee, arguing the document was presented merely as a credit application update.

The court found that while the proprietor did sign the document, the plaintiff had a positive obligation to bring the guarantee clause to his attention due to their special, long-standing business relationship.

Because the plaintiff failed to do so, the guarantee was obtained by misrepresentation and was unenforceable.

The action against the personal defendant was dismissed.

The parties agreed that the moving parties would pay costs of the motion in the amount of $5,000 to the responding parties.

The Court of Appeal for Ontario ordered costs in accordance with the parties' agreement.

The respondents (moving parties) sought reconsideration of a prior Court of Appeal decision that had quashed their appeal as interlocutory and dismissed their motion to stay.

The court dismissed the motion for reconsideration, finding that Rule 59.06 of the Rules of Civil Procedure was inapplicable as no order had been issued and entered.

The court emphasized the principle of finality in litigation, stating that reconsideration is only granted sparingly and where the interests of justice require it.

The court noted that the moving parties had already pursued leave to appeal to the Divisional Court and were seeking further leave to appeal that decision, indicating acceptance of the original ruling.

A new argument regarding judicial bias based on counsel's race was deemed irrelevant to the determination of whether the original order was interlocutory or final.

This endorsement addresses the costs arising from a dismissed motion brought by the defendants.

The court found the defendants' conduct, including raising serious, unfounded ethical allegations against the plaintiff's counsel and subsequently abandoning a motion to remove him, constituted an abuse of process.

The court affirmed its broad inherent jurisdiction to award costs in such circumstances, including for abandoned motions.

Given the abusive and damaging nature of the allegations, the court awarded full indemnity costs to the plaintiff and their counsel.

The defendants brought a motion and the plaintiff a cross-motion in a Construction Lien Act action.

The defendants sought to adjourn the trial, challenge the authenticity of the Claim for Lien, amend their Statement of Defence, and have witnesses provide evidence by affidavit, while also making serious, unsubstantiated allegations of misconduct and ethical breaches against the plaintiff's current and former counsel.

The court dismissed the defendants' motion in its entirety, noting their failure to comply with court orders and the lack of evidence for their serious allegations.

The issue of removing plaintiff's counsel was abandoned with prejudice.

The plaintiff's cross-motion was not dealt with as the primary issues were resolved.

The trial was set peremptorily for May 2021.

Costs were reserved for written submissions.

The respondent, a not-for-profit corporation, brought a motion for an injunction requiring the applicants, former employees, to return allegedly misappropriated confidential documents and restraining their further use.

The respondent also sought a sealing order for the court file.

The applicants argued they were whistleblowers exposing corporate wrongdoing.

The court dismissed the motion for an injunction, finding that while there was a serious issue to be tried, the respondent failed to establish it would suffer irreparable harm.

The court also dismissed the request for a sealing order, concluding it was not necessary to prevent a serious risk to an important interest and that the public interest in open court proceedings outweighed the benefits of confidentiality.

The moving parties brought a motion for leave to appeal the order of Fowler Byrne J. dated February 6, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $6,000.

The applicant law firm brought a motion for leave to appeal in a matter under the Solicitors Act.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the respondent in the amount of $1,500.

The respondents moved to quash an appeal from an order that appointed an investigative monitor, released interim funds, granted an interim injunction, converted an application to an action, added parties, and refused to seal the court file.

The Court of Appeal held that all aspects of the order were interlocutory in nature, as they did not finally determine the substantive rights of the parties or the real matters in dispute.

Consequently, the appeal was quashed for lack of jurisdiction, as appeals from interlocutory orders lie to the Divisional Court with leave.