Emery

The plaintiff brought a motion for default judgment after the defendant failed to close an agreement of purchase and sale for a residential property.

The defendant had agreed to purchase the property for $3,660,000 and paid a $100,000 deposit, but breached the agreement.

The plaintiff subsequently sold the property for $3,200,000 and sought damages for the difference in sale price and carrying costs.

The court granted default judgment, ordering the forfeiture of the deposit to be applied against the plaintiff's total damages, resulting in a net damages award of $405,346.47 plus costs.

The mother brought a motion for an interim order permitting her to relocate to London, England with the parties' two-year-old child to accept a lucrative job offer and be closer to her family support network.

The father brought a cross-motion for a graduated parenting plan in Ontario.

The court granted the mother's motion to relocate, finding that she was the primary caregiver and that the father failed to meet the burden of proving the relocation was not in the child's best interests.

The court also addressed several evidentiary objections, striking surreptitious recordings and certain reply evidence, while allowing the evidence of a treating doctor as a participant expert.

The father's cross-motion was dismissed, and he was ordered to pay costs of $23,640.

The infant plaintiff suffered a severe and permanent brachial plexus injury during birth after encountering shoulder dystocia.

The plaintiffs brought a medical negligence action against the delivering obstetrician, alleging he applied excessive downward traction.

The defendant argued the injury was caused by maternal propulsive forces.

The court found that the defendant breached the standard of care by applying more than gentle downward traction, which caused the injury.

The court awarded $811,564 in total damages, including non-pecuniary damages, future care costs, future loss of income, and Family Law Act damages for the family.

The Crown brought a pre-trial application under section 714.1 of the Criminal Code to allow the adult complainant to testify remotely via video-conference from Edmonton.

The accused, facing multiple charges of assault and assault with a weapon, opposed the application, asserting his right to face his accuser in person.

The court dismissed the application, finding that the Crown failed to provide a sufficient evidentiary foundation regarding the complainant's personal circumstances, logistical difficulties, or the proposed remote setup to justify displacing the default requirement for in-person testimony.

The plaintiff brought an uncontested trial for default judgment against the defendant for defamation and the tort of placing her in a false light, arising from videos posted on social media.

The court found that while the defamation claim failed due to lack of evidence of publication on WhatsApp, the plaintiff established liability for the false light tort because it was reasonably foreseeable the false videos would be shared.

The court awarded the plaintiff $5,000 in general damages and $30,390 in special damages for lost income, plus substantial indemnity costs.

The moving party, Gaspare Caruso, brought a motion to annul the bankruptcy of 1947755 Ontario Ltd. under s. 181(1) of the Bankruptcy and Insolvency Act.

The assignment in bankruptcy had been made by John Hanna Nissan amidst a protracted dispute over corporate control.

The court found that the corporation was not insolvent at the time of the assignment, as its assets exceeded its liabilities and it could have met its obligations with a modicum of effort.

Furthermore, the court held that the assignment was an abuse of process, strategically timed to avoid scheduled examinations in the ongoing litigation.

The motion to annul the bankruptcy was granted.

Following two summary judgment motions in a family law proceeding, the respondent sought approximately $115,000 in costs based on offers to settle.

The applicant argued the amount was grossly excessive and disproportionate.

The court applied the principles of proportionality, fairness, and reasonableness, significantly reducing the claimed hours and disallowing time docketed by an unidentified law clerk.

The respondent was awarded a total of $30,000 in costs inclusive of disbursements and HST.

The applicant husband brought a motion under Family Law Rule 12(6) to sever his claim for divorce from the corollary relief sought by the respondent wife.

The respondent opposed the motion, arguing she would be disadvantaged regarding her claims for the return of jewellery and an interest in property.

The court found that the respondent's true motive was to delay the divorce as leverage for her civil claims, which would not be legally disadvantaged by the severance.

The motion to sever the divorce was granted, and the respondent's cross-motion was dismissed.

The defendants brought a motion for directions after adjourning the examination for discovery of the plaintiff, Valentina Medvedeva.

The day before the scheduled examination, the plaintiffs served a lengthy affidavit intended to serve as Valentina's evidence in chief.

The defendants objected, arguing this would allow the plaintiffs to control the narrative and avoid a proper oral discovery.

The court agreed with the defendants, finding that under Rule 31.02, the examining party controls the form of discovery, and oral examinations are the standard.

The court ordered that Valentina submit to a standard oral examination for discovery without the use of the affidavit.

The appellant appealed a motion judge's order for the partition and sale of a property under the Partition Act.

The appellant argued the motion judge erred by ordering the sale despite a triable issue regarding a trust claim and by failing to find the respondent's conduct was malicious, vexatious, or oppressive.

The Divisional Court dismissed the appeal, finding the respondent's desire to untangle financial affairs was reasonable and the appellant failed to establish prejudice arising from the sale.

The plaintiff, Trade Capital Finance Corp., brought a motion to compel the defendant, Carlo De Maria, to make full disclosure and produce documents relating to the operation of The Cash House Inc. and related corporations.

The plaintiff alleged it was defrauded of millions of dollars and that the stolen funds were funneled through these corporations.

The court found that De Maria retained power and control over the documents despite a purported sale of the business.

The court ordered De Maria to serve a further and better affidavit of documents and produce the requested records, subject to specific rulings on individual categories of documents.

The applicant sought an equalization of net family property, an unequal division of property under s. 5(6) of the Family Law Act, a change to a final order regarding the distribution of home sale proceeds, and a finding of contempt against the respondent.

The court calculated the equalization payment owed to the applicant at $95,181 but dismissed her claim for an unequal division, finding the respondent's conduct did not meet the threshold of unconscionability.

The court granted the motion to change the final order due to the respondent's breach of its terms, and found the respondent in civil contempt for intentionally defying clear court orders regarding property sales and proceeds.

The applicants brought a motion seeking a finding that the respondents, Hanna Gajek and Katarzyna Krol, failed to comply with two prior court orders requiring disclosure of the assets and liabilities of the late Marek Krol's estate.

The court found that Katarzyna Krol had satisfied her disclosure obligations to the best of her ability, as she had no knowledge or possession of relevant documents.

However, the court found that Hanna Gajek had not fully complied with the orders, particularly regarding documents likely kept in a safe and details of joint bank accounts.

The motion was dismissed against Katarzyna Krol and allowed in part against the Estate of Hanna Gajek, with directions for further disclosure.

The plaintiff brought a motion to strike the defendants' jury notice in a motor vehicle accident action, citing delays caused by the COVID-19 pandemic.

The defendants opposed, arguing the plaintiff required leave under Rule 48.04 as the action was already set down for trial, and that the action was not ready for trial due to outstanding undertakings.

The court granted leave, finding the pandemic constituted a substantial and unexpected change in circumstances.

The court conditionally struck the jury notice, ordering that if a jury trial cannot be accommodated during the January 2022 sittings in Brampton, the trial will proceed before a judge alone to avoid undue delay.

The moving party brought a motion for summary judgment to uphold the validity of a marriage contract.

The responding party sought to set aside the contract under section 56(4) of the Family Law Act, alleging non-disclosure of the value of a property, failure to understand the contract, and duress.

The court found that the responding party had independent legal advice, knew of the property's existence, and failed to establish any grounds for setting aside the agreement.

The motion for summary judgment was granted, and the marriage contract was declared valid and enforceable.

The applicant mother brought a motion for an interim order granting her sole decision-making responsibility and primary residence of the parties' four-year-old child, along with a modified parenting schedule for the respondent father.

The mother argued the current schedule caused the child anxiety, while the father sought a 2-2-3 shared parenting schedule.

The court granted the mother interim sole decision-making responsibility and primary residence, finding it in the child's best interests.

The court rejected the father's 2-2-3 proposal due to uncertainty but modified his parenting time to shorter, more frequent visits to reduce the child's anxiety while maintaining regular contact.

The applicant daughter sought to be appointed as guardian of property and personal care for her mother, the respondent.

The respondent opposed the application but filed no responding evidence.

The court found the respondent incapable of managing her property and personal care due to declining mental health, delusions, and inability to manage finances or medical needs.

The court declined to order a capacity assessment, finding it would be overly intrusive given the respondent's likely refusal to cooperate.

The application was granted, and the daughter was appointed guardian subject to posting a $125,000 bond.

The applicant brought a motion for a Certificate of Pending Litigation (CPL), a preservation order, and expanded financial disclosure in a family law proceeding following a long marriage.

The applicant alleged the respondent unilaterally sold a jointly acquired rental property and transferred funds to purchase a new property in his sole name, while failing to provide adequate financial disclosure.

The court granted the CPL, finding a reasonable claim for a constructive trust, and issued a preservation order under sections 12 and 40 of the Family Law Act to prevent the dissipation of assets.

The court also ordered the respondent to provide detailed financial disclosure, noting his previous non-compliance had frustrated the progress of the case.

The applicant brought two motions following the respondent's failure to comply with a consent order.

The first motion sought costs for an urgent motion required to compel the respondent to transfer a vehicle, which he did on the eve of the hearing.

The court found the respondent acted in bad faith and awarded full recovery costs of $4,500.

The second motion sought to strike the respondent's pleadings for failing to provide ordered financial disclosure.

The court declined to strike the pleadings as a remedy of last resort, instead setting a final deadline for compliance and awarding $3,000 in partial indemnity costs to the applicant.

The plaintiffs brought a motion for the production of a Cooperation and Common Interest Agreement between the defendants.

The plaintiffs sought the agreement to support their argument that the defendants mounted a joint defence, which would affect the apportionment of costs following summary judgment motions.

After reviewing the agreement in camera, the court dismissed the motion, finding that the document was protected by privilege.