F. Bruce Fitzpatrick

The plaintiff, J.B., sought judgment on motion without notice against the defendant, R.B., who had been noted in default.

Liability for damages arising from a sexual assault perpetrated by R.B. on J.B. in 1992 had been previously established by partial summary judgment.

The court proceeded to quantify damages based on affidavit evidence, awarding J.B. $275,000 for general and aggravated damages, $632,813 for past loss of income, $20,000 for future care costs, $72,000 for special damages related to child-rearing costs (for a child born of the assault), and $13,213.75 for the Ministry of Health's subrogated account, plus prejudgment interest and fixed costs of $25,000.

The accused was charged with multiple counts of sexual assault and sexual interference against a 13-year-old complainant, as well as breach of probation.

The Crown alleged four distinct incidents of sexual assault.

Applying the W.(D.) framework, the court found the complainant's evidence credible and rejected the accused's denials for three of the incidents.

The court found the accused guilty of sexual assault and sexual interference for the incidents at the apartment building, the public library, and the accused's mother's home.

The accused was acquitted of the charges relating to the fourth incident due to reasonable doubt.

The accused was also found guilty of breaching his probation order.

The respondents brought a motion to strike an oppression application commenced by the applicants.

The applicants were minority shareholders of a holding company that owned a minority interest in the respondent corporation, but did not own shares in the respondent corporation directly.

The moving parties argued that the applicants were not proper 'complainants' under s. 245(c) of the Business Corporations Act.

The court dismissed the motion, finding that it was not plain and obvious that the applicants would fail to qualify as complainants, given the court's broad discretion and the factual issues surrounding the corporate structure and the applicants' relationship to the company.

The defendant insurer moved to dismiss the plaintiff's action for long-term disability benefits, arguing the court lacked jurisdiction because the plaintiff's employment was governed by a collective agreement requiring arbitration.

The plaintiff, a registered nurse, was working in a temporary non-union management position on the date she became disabled and stopped working.

The court found that because the plaintiff was not in the bargaining unit on the date of disability, the collective agreement did not apply to her claim.

The motion to dismiss was dismissed, affirming the Superior Court's jurisdiction.

The plaintiff, a general contractor, sought an injunction to prevent Tarion Warranty Corporation from drawing on two performance bonds after Tarion terminated the plaintiff from a repair project for a leaking condominium parking garage.

The plaintiff argued the bonds were conditional payment obligations subject to a repair agreement.

The court found the bonds were autonomous demand bonds, meaning Tarion's right to call on them was independent of the underlying contract.

Applying the Supreme Court's decision in Angelica-Whitewear, the court held that an injunction against a demand bond requires a strong prima facie case of fraud.

As the plaintiff did not allege fraud, the motion was dismissed.

The court also noted the plaintiff would fail the traditional RJR-MacDonald test for injunctive relief.

The court provided additional reasons for its decision on two motions regarding a construction dispute.

On the discharge motion, the court discharged the plaintiff's construction lien, finding that the work performed was an extraction operation rather than an improvement to the land, meaning no right to a lien existed.

On the preservation motion, the court granted the plaintiff's request to preserve the extracted rock and wood, finding that the material was central to the dispute and the balance of convenience favoured preservation to ensure fair adjudication.

The Public Guardian and Trustee (PGT) applied to displace an individual as guardian for property of an elderly person and to compel the individual to repay substantial funds transferred from the elderly person.

The elderly person, suffering from cognitive impairment, had appointed the individual as her attorney for property.

Shortly after, the elderly person transferred significant sums to the attorney and another individual.

The court found that the attorney failed to rebut the presumption of a resulting trust for the funds she received and breached her fiduciary duty by not acting in the elderly person's best interests.

The PGT's application was allowed, terminating the attorney's power of attorney, appointing the PGT as permanent guardian, and ordering the attorney to repay over $334,000.

The parties, two closely held private companies owned by brothers, disputed an unwritten agreement allowing the plaintiff to extract aggregate and timber from the defendants' land.

The defendants brought a motion to discharge a construction lien registered by the plaintiff, while the plaintiff brought a motion to preserve harvested wood and blasted rock on the property.

The court granted the defendants' motion to discharge the lien, finding no lienable services were provided and the lien was not preserved in time.

The court also granted the plaintiff's motion for an interim preservation order, finding the test under Rule 45.01 was met.

The defendants brought a motion for leave to appeal a certification order.

The Divisional Court granted leave to appeal on the question of whether the tort of intrusion upon seclusion is available against collectors and custodians of private information when that information is improperly accessed by a third party, even if the defendants allegedly acted recklessly.

Costs of the motion were fixed at $11,300, left to the discretion of the appeal panel.

The appellant condominium corporation appealed a decision of the Condominium Authority Tribunal ordering it to produce redacted legal invoices to a unit owner.

The corporation had sent a letter to all owners blaming a small group of owners for increased legal costs, which the Tribunal found constituted a waiver of solicitor-client and litigation privilege over the invoices.

The Divisional Court dismissed the appeal, finding no error of law in the Tribunal's application of the common law principles of waiver or its interpretation of the disclosure exceptions under the Condominium Act.

The appellant, a lawyer disbarred in Florida and Illinois for exploiting elderly clients, appealed a decision of the Law Society Appeal Panel upholding his disbarment in Ontario.

The Law Society relied on the foreign disciplinary decisions, arguing they should be recognized and given preclusive effect.

The Divisional Court dismissed the appeal, finding that the Appeal Panel correctly applied the test for recognizing foreign judgments and issue estoppel, and that the appellant's arguments constituted an impermissible collateral attack on the Florida proceedings.

The moving party brought a motion for leave to appeal an unreported order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs fixed at $2,750 to the responding party.

The moving party solicitor brought a motion for leave to appeal from an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $7,500 to the responding party.

The moving parties brought a motion for leave to appeal from the order of Bielby J. dated September 2, 2020.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs fixed at $4,968.21 to the responding parties.

The defendants brought a motion for leave to appeal the order of Doi J. dated January 23, 2020.

The Divisional Court granted the motion for leave to appeal, with costs of the motion fixed at $5,000 payable in the discretion of the appeal panel.

This judgment addresses two motions within a garnishment proceeding.

First, M Builds (NWO) Limited Partnership sought to be added as a co-defendant or joined as a necessary party to the garnishment, which was granted for the purpose of filing materials and making submissions.

Second, 1022403 Ontario Ltd. (Mirmil), a judgment creditor, moved for security for costs against Man-Shield (NWO) Construction Inc. (MS).

The court found Mirmil had a prima facie entitlement to security for costs under Rule 56.01(1)(c).

MS failed to demonstrate sufficient assets or a good chance of success on the merits, given its inconsistent positions regarding the ownership of garnished funds and the City of Thunder Bay's evidence.

The court also rejected MS's argument that the funds were subject to a trust under the Construction Act, as section 7 does not apply to municipalities and section 8 was not engaged due to subcontractors being paid.

Consequently, MS was ordered to post security for costs totaling $12,000.

The plaintiff, David George Owen, brought a negligence claim against dentist Sukhjeevan Bains following a tooth extraction procedure during which Owen lost consciousness and later experienced a bradycardiac event at the hospital, leading to a "near death experience" and psychological injury.

The court dismissed the claim, finding that Owen failed to prove on a balance of probabilities that Dr. Bains's administration of nitroglycerin (NTG) caused the subsequent bradycardiac event at the hospital.

The court determined that Owen's underlying health conditions were the cause of the events, and Dr. Bains's actions were reasonable given the perceived emergency.

Anne Winkworth, a co-estate trustee, brought a motion for directions concerning the sale of the last major asset of the estate, a property in Thunder Bay.

While the parties largely agreed on the sale, disputes remained regarding the holding of sale proceeds and costs.

The court ordered the property to be listed for sale, suspended any beneficiary purchase rights until after the listing, and directed that net sale proceeds, after specific expenses and Anne's fixed costs, be held in trust by Anne's counsel pending further agreement or court order.

Anne was awarded $2,000 in costs, to be a first charge on the sale proceeds.

This trial concerned a dispute between two cottage neighbours over vehicular access to a road ("the Pink Road") located primarily on the respondent's property.

The applicant sought a court order for vehicular access based on proprietary estoppel, following an earlier phase of the application under the Road Access Act which was dismissed.

The court examined the history of the road's use, including a 1968 oral agreement between the original owners, and subsequent blockages in 1992 and 2015.

The court found that the 1968 agreement was a personal license, not an easement, as it lacked the essential characteristic of accommodating the dominant tenement by reasonable necessity.

Furthermore, the applicant failed to establish the elements of proprietary estoppel, as there was no inducement or detrimental reliance sufficient to create an equitable interest.

The application was dismissed, with the court concluding that the applicant's use of the road after 2015 constituted trespass.

The accused, Randall William Creed, was charged with possession for the purpose of trafficking methamphetamine.

The court found that the Crown proved beyond a reasonable doubt that the accused was in possession of a Schedule 1 controlled substance.

However, the Crown failed to prove beyond a reasonable doubt the intent or purpose of physically making the narcotic available to others.

The court found the expert evidence on drug quantity unreliable due to hearsay and lack of basis, and other seized items (baggies, scales, pipe) were deemed equivocal as to trafficking intent, with reasonable alternative explanations.

Consequently, the accused was found not guilty of the charge.