F. Bruce Fitzpatrick

The moving parties brought a motion for leave to appeal an order of Nieckarz J. dated February 21, 2023, and other related orders.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $2,663.98.

The appellant appealed a motion judge's order directing the partition and sale of the parties' matrimonial home and dismissing her cross-motion for temporary exclusive possession.

The Divisional Court found that the motion judge applied the correct legal test, balancing the prima facie right to sale against potential prejudice, and appropriately considered the status quo of the parties and their adult children.

Finding no palpable and overriding error or error of law, the court dismissed the appeal and awarded costs to the respondent.

The plaintiff sought leave to file two additional affidavits, including one from a handwriting expert, in response to the defendants' motion for summary judgment.

The court granted the plaintiff's motion, finding that the proposed evidence was relevant, responded to matters raised during cross-examination, would not cause non-compensable prejudice, and that the plaintiff provided a reasonable explanation for the delay in filing.

The court applied the four-part test for admitting further affidavit evidence post-cross-examination under Rule 39.02(2) of the Rules of Civil Procedure.

The plaintiff, a renovation company, brought a motion seeking a Certificate of Pending Litigation (CPL) against a residential property owned by the defendant, who was the mother-in-law's son-in-law.

The plaintiff claimed over $200,000 for renovation services and materials provided to the property.

The defendant asserted the work was deficient and had listed the property for sale.

The court dismissed the motion, finding that the plaintiff's claim was for money damages arising from a construction contract, not for an interest in land.

The court held that the plaintiff's failure to perfect its construction lien rights could not be circumvented by seeking a CPL or by invoking equitable remedies like constructive trust, as this would subvert the statutory scheme of the Construction Lien Act.

The court rendered a sentencing decision for Adrian Myles Puentes-Reed and Kalid Yousuf, who were found guilty of eight firearms, drug, and proceeds of crime offences.

The judge accepted the joint sentencing submission from counsel, imposing a nine-year penitentiary sentence for Puentes-Reed and an eight-year penitentiary sentence for Yousuf, less time served.

The decision emphasized the principles of denunciation and deterrence, acknowledging the severe societal harms caused by drug trafficking and the associated violence, while also considering the offenders' prospects for rehabilitation.

Antonio Manzo was charged with four firearms-related counts stemming from an incident on May 6, 2020, where a Toyota Tundra was shot multiple times.

The Crown's case relied on circumstantial evidence, including civilian observations of the accused's vehicle near the scene, the subsequent discovery of a firearm (Ruger rifle) in his possession, and forensic evidence linking a spent shell casing from the scene to the Ruger.

The court found all Crown witnesses credible and concluded that the only reasonable inference from the evidence was that the accused fired the Ruger at the Tundra, causing the damage.

Manzo was found guilty on all counts.

This judgment concerns an application for a bankruptcy order against River Green (Thunder Bay) Inc. The court previously determined that the alleged debt to the applicant creditor, BNL Contracting Ltd., was bona fide.

The remaining issues were whether River Green committed an act of bankruptcy within six months of the application and whether the application was brought for an improper purpose.

The court found that River Green had ceased to meet its liabilities generally, satisfying the act of bankruptcy requirement.

The court dismissed the respondents' argument that the application was brought for an improper purpose, finding their evidence speculative and noting the debtor's inability to manage its affairs.

A bankruptcy order was granted, and a trustee appointed.

Costs were awarded against the opposing parties.

The Crown applied to admit presumptively inadmissible evidence as similar fact evidence in a criminal trial for sexual offences against a youth.

The Crown sought to introduce facts from the accused's prior sexual interference conviction.

The defence argued that the facts the Crown sought to rely upon were not fully admitted by the accused during the 2009 plea.

The court dismissed the application, finding that the alleged similar facts were not strongly proven by the 2009 transcript and that the defence would be unable to fairly respond to the allegations.

M. Singh Law Professional Corporation (MS) sought a charging order under section 34 of the Solicitors Act against property of River Green (Thunder Bay) Inc. in the possession of 2801100 Ontario Inc. The court applied the three-part test for a charging order, specifically focusing on whether MS was instrumental in preserving the property.

The court found that while the property existed and the client could not pay, MS's efforts were not "substantial and integral" to the preservation, as the assets had already been preserved by a prior court order obtained before MS was retained.

Consequently, the court dismissed the motion for a charging order.

The Crown sought forfeiture of over $1.2 million in cash seized from the accused under sections 462.43 and 490(9) of the Criminal Code.

The accused applied to exclude the evidence (cash, opinion evidence, and agreed statement of facts) under section 24(2) of the Canadian Charter of Rights and Freedoms, arguing that it was obtained in violation of his section 8 Charter rights, as previously found by the court in his criminal trial where the evidence was excluded, leading to his acquittal.

The court, applying the R. v. Grant test, determined that while the Charter breaches were serious, the context of a forfeiture application, where liberty is not at stake, is sufficiently different from a criminal trial.

The court found that excluding the evidence in this forfeiture proceeding would bring the administration of justice into disrepute, given the nature and large sum of the cash.

Therefore, the defence's application to exclude the evidence was dismissed, allowing the forfeiture application to proceed.

The defendants moved to dismiss or permanently stay the plaintiff's action, alleging a breach of the common law deemed or implied undertaking rule.

They claimed the plaintiff used documents obtained from an Ontario Labour Relations Board (OLRB) matter to prepare its statement of claim in the civil action.

The plaintiff argued there was no breach, or alternatively, sought relief from the consequences.

The court dismissed the defendants' motion, finding that Ontario's Rule 30.1.01(2) limits the deemed undertaking rule to evidence obtained through discovery processes under the Rules of Civil Procedure, and therefore does not apply to documents obtained from an unrelated proceeding in another forum like the OLRB.

This endorsement addresses the issue of costs referred back to the court following previous motions and applications.

Cheadles LLP sought substantial indemnity costs of $38,137.85, while Walter Zanewycz argued no costs should be awarded.

The court found that costs were payable by Zanewycz to Cheadles LLP due to Zanewycz's conduct, which included unfocused materials, relitigation of matters, unsubstantiated allegations, and unrealistic claims.

Costs were awarded on a substantial indemnity basis, but the quantum was reduced from the amount sought, primarily by disallowing costs for multiple solicitors and law clerk time.

The final award was $18,000.00 inclusive of disbursements and HST.

The Applicant, M.R., and the Respondent, K.M., both brought motions for temporary parenting orders concerning their 10-year-old child, JJKR, following the tragic death of the child's biological mother, K.R. The Applicant, the mother's former common-law partner, sought primary residence and decision-making, or alternatively, a week-about schedule.

The Respondent, the biological father, sought primary residence with him and limited parenting time for the Applicant.

The court found the Applicant to be a "parent" under the Family Law Act and, considering the child's best interests, ordered a temporary week-about parenting schedule with sole decision-making responsibility for the Applicant.

The defendants brought a motion seeking an interim or final order to authorize the transfer of shares held by the Jack Witiluk Family Trust in Phase 2 Ventures Inc. to Jeffrey Witiluk and Ryan Witiluk.

The plaintiffs opposed, citing prejudice, oppression, and technical issues related to board approval and director appointment.

The court found the plaintiffs' opposition lacked merit, emphasizing the long-standing nature of the litigation and the pragmatic business sense of the proposed transfer.

Exercising its discretion under the Ontario Business Corporations Act, the court authorized the share transfer, dismissing the plaintiffs' technical objections.

Costs were awarded against the plaintiff, Gerald Witiluk, personally.

The plaintiffs, Resolute Forest Products Inc. and its affiliates, brought a motion seeking an order to waive the deemed undertaking rule under Rule 30.1.01(8) of the Rules of Civil Procedure.

They sought to use discovery evidence, including documents, from the Ontario action in a related defamation and intentional interference with economic relations action commenced in the United States District Court of the Northern District of California.

The defendants, Greenpeace Canada and its employees, opposed the motion.

The court dismissed the motion, finding that Resolute failed to demonstrate a superior public interest that would outweigh the privacy protections of the deemed undertaking rule.

The court noted that the parties and issues in the Canadian and US actions were not sufficiently similar to warrant a waiver, and that Rule 30.1.01(6) already permits the use of discovery evidence for impeachment in another proceeding, including foreign ones.

The court also found that Resolute was not sufficiently particular about what specific evidence was required.

The accused, Adrian Myles Puentes-Reed and Kalid Yousuf, were jointly charged with multiple offences including possession of proceeds of crime, possession of cocaine and marijuana for trafficking, and various firearm offences.

They were found asleep in a "safe house" in Thunder Bay containing large amounts of cash, drugs, and firearms.

The defence argued lack of possession and knowledge, with Puentes-Reed claiming he was intoxicated and inadvertently brought to the residence.

The court rejected the defence's explanations, finding them incredible and inconsistent with documentary evidence and the nature of the "safe house" operation.

Both accused were found guilty on all remaining charges, as the Crown proved constructive possession and knowledge beyond a reasonable doubt.

This is an endorsement on costs following a decision where the applicant, Mary Maureen Marttunen, was awarded costs against the respondent, Raymond McDevitt.

The court had previously found Raymond McDevitt liable for misappropriating over $400,000 from a vulnerable elderly person to whom he owed a fiduciary duty.

The applicant requested costs on a substantial indemnity basis, totaling $27,543.23.

The respondent did not submit any materials regarding costs.

The court agreed with the applicant's submission, finding the matter complex and the respondent's conduct egregious, justifying substantial indemnity costs.

The Respondents moved to convert an oppression remedy application into an action, asserting material facts were in dispute.

The Applicants sought a sale of shares.

The court, exercising its case management authority, adjourned the conversion motion.

Instead, recognizing the parties' shared ultimate objective of a share divestment, the court ordered the Respondents to purchase the Applicant's shares and established a comprehensive timetable for expert valuation, aiming to expedite the resolution of the long-standing corporate dispute.

Raymond McDevitt, acting as power of attorney for his 93-year-old mother Helen, was found to have misappropriated over $443,000 from her joint bank accounts.

The applicant, Mary Maureen Marttunen, also a joint power of attorney, sought an order for Raymond to pass accounts and for declarations of breach of trust and fiduciary duty.

The court found that Raymond failed to rebut the presumption of resulting trust, acted in breach of trust and fiduciary duty by taking funds for his personal benefit without consent, and ordered him to repay the misappropriated amount.

Raymond was removed as power of attorney for property and personal care, and Mary Maureen Marttunen was declared the sole attorney.

The parties in a high conflict family case brought competing motions for significant relief, including child support, spousal support, exclusive possession of the matrimonial home, and parenting schedules.

The motions were scheduled as short motions limited to one hour.

The court found that the legal and evidentiary issues, which included allegations of family violence and disputed incomes, were too complex to be resolved in a short motion format.

As a result, all motions were dismissed without costs, and the parties were directed to schedule a case conference to properly address the issues.