Gary J. Marcuccio

The plaintiffs, Lloyd Newton and the Estate of Donna Marion, brought an action against the Anishinabek Police Services and related defendants for damages arising from criminal charges laid against them, which were later withdrawn after restitution.

The claims included negligent investigation, malicious prosecution, and a variety of other torts.

The court granted summary judgment for the defendants, finding no genuine issue requiring a trial.

The judge held that most claims were not actionable by the plaintiffs, and that the criminal proceedings did not terminate in the plaintiffs’ favour, precluding claims for malicious prosecution and negligent investigation.

This decision addresses the costs arising from a successful motion by Lucien Cammaert to transfer proceedings from Toronto to Sudbury.

Lucien sought substantial indemnity costs, while Rosemary Maki, the unsuccessful party, argued for no costs or costs in the cause, asserting her initial choice of venue was reasonable and that she was seeking an accounting of assets.

The court found Lucien presumptively entitled to costs, rejecting Rosemary's arguments that her positions were unreasonable enough to warrant substantial indemnity, but also that costs should be in the cause.

The court awarded partial indemnity costs to Lucien, emphasizing that the unsuccessful party's conduct did not warrant elevated costs, but also did not justify deviating from the general rule that costs follow the event.

The applicant, Rosemary Maki, sought leave under section 42 of the Substitute Decisions Act, 1992, to compel the respondent, Lucien Cammaert, to pass his accounts regarding his management of their father's (Willy Cammaert) property.

The father, 89 and in long-term care, was deemed to lack capacity.

The applicant alleged extensive involvement and mismanagement by the respondent since 2016, leading to a significant erosion of the father's assets.

The respondent claimed the father managed his own finances until a stroke in February 2024 and that transfers were gifts.

The court granted leave, finding the applicant had a genuine interest and that the respondent was involved in the property's management since January 2016, regardless of the father's capacity at the time, and had not fully accounted for his dealings.

The applicant was awarded costs.

The defendant, Amy Chan, brought a motion for summary judgment to dismiss the plaintiff, Stefan Methot's, claims regarding an interest in a residential property and a numbered company.

The plaintiff, who was self-represented, failed to file responding materials or retain counsel despite multiple adjournments.

The court applied the "put your best foot forward" principle and found no genuine issue for trial.

It concluded that the plaintiff did not fulfill his part of the agreement concerning the property and lacked evidence to support an ownership interest in the corporation.

Summary judgment was granted in favour of the defendant, dismissing all of the plaintiff's claims.

The applicant, Rosemary Maki, initiated an application in Toronto seeking a declaration of her father's incapacity, the setting aside of his Powers of Attorney, and her appointment as guardian.

The respondent, Lucien Cammaert, brought a motion to transfer the application to Sudbury.

The court, applying Rule 13.02(2)(b) of the Rules of Civil Procedure, considered factors such as where the events occurred, where the subject matter was located, and the convenience of parties and witnesses.

Given that the Powers of Attorney were executed in Espanola (Sudbury District), the property is located there, and most parties and witnesses reside in the Sudbury District, the court found that Sudbury was a "significantly better" venue.

The motion to transfer the proceedings to Sudbury was granted.

The defendants brought a summary judgment motion to dismiss the plaintiffs' Family Law Act claim arising from their mother's fall and subsequent death.

The mother fell and fractured her hip on June 9, 2015, and died on September 29, 2015.

The action was commenced on September 29, 2017, exactly two years after her death but more than two years after the fall.

The plaintiffs conceded that the court was bound by Camarata v. Morgan, which held that death does not create a new cause of action or re-toll the limitation period.

The action was dismissed as statute-barred.

The third party, Her Majesty the Queen in Right of Ontario, represented by the Ministry of Natural Resources and Forestry (MNR), brought a motion for summary judgment to dismiss a third-party claim by the defendant, 2065943 Ontario Ltd. The defendant's claim alleged negligence against the MNR related to signage and property maintenance in a provincial park, following an incident where the plaintiff was injured.

The MNR argued that the claim was one of occupiers' liability, requiring notice within ten days under the Proceedings Against the Crown Act (PACA), which the defendant failed to provide.

The court found that the defendant's claim was indeed an occupiers' liability claim, subject to the strict 10-day notice period, and that the defendant's arguments regarding discoverability, negligence vs. occupiers' liability, and lack of prejudice to the Crown were unpersuasive.

The motion for summary judgment was granted, and the third-party claim against the MNR was dismissed.

A boat passenger was injured when the boat struck the shoreline and sued both the driver and owner.

The driver was covered under two insurance policies: the owner's TD policy and his own Intact homeowner's policy.

Both policies contained identical "other insurance" clauses declaring themselves excess to other applicable insurance.

TD sought an order requiring both insurers to share equally in the defence and indemnification of the driver.

The application judge dismissed the application, finding TD's policy provided primary coverage based on a "closeness to the risk" analysis.

The Court of Appeal allowed the appeal, holding that the application judge erred by applying the rejected "Minnesota approach" and that the irreconcilable conflict between the identical excess clauses required equal contribution from both insurers.

The appellant, FNX Mining Company Inc., appealed an order from a building inspector requiring building permits for a generator structure and several trailers at its mine site.

The generator, providing standby power, was remotely operated and not designed for human occupancy, though maintenance staff entered periodically when it was off.

The trailers served as offices, lunchrooms, and first aid stations, were movable but secured for periods with utilities attached.

The court, applying a reasonableness standard, found the generator was not a "building" under the Building Code Act, 1992, as its transient occupancy and regulation by other safety regimes made the building permit requirement unreasonable.

However, the trailers, being secured for periods with utilities and used for regular human occupancy, were deemed "buildings" requiring permits.

The appeal was allowed in part.

The appellant, a personal caregiver, slipped and fell at the residence of her employer, Jeanne Birnie.

She initially sued Jeanne Birnie as an incompetent person, but that action was discontinued.

A second action was commenced against Jeanne Birnie, Michael Birnie (her son), and another defendant.

Michael Birnie was dismissed from the action by consent order dated September 26, 2008.

Approximately seven years later, the appellant moved to set aside the consent order, claiming newly discovered facts regarding Jeanne Birnie's incompetence at the time of the accident.

The motion judge dismissed the motion, finding that the facts were available through reasonable diligence at the time of the consent order.

The Court of Appeal upheld this decision, finding no factual or legal basis to set aside the consent order and that the interests of justice did not support such relief.

This decision addresses five separate motions brought by the plaintiffs to reinstate administratively dismissed actions or extend time for filing/serving Statements of Claim, after 14 years of litigation with minimal progress.

The court dismissed all motions, finding that the plaintiffs had abused the process by repeatedly attempting to re-litigate issues already decided, misusing court procedures for investigative purposes rather than advancing claims, consistently ignoring court orders and timetables, and failing to properly manage their claims and expert evidence.

The court relied on its inherent jurisdiction to manage its process, concluding that the delay was inordinate and inexplicable, and that "enough is enough."

The defendant Civita Vitiello brought a motion for summary judgment, arguing the plaintiff's claim was statute-barred due to the expiration of the limitation period.

The central issue was discoverability, specifically when the plaintiff, Marie Leblanc, discovered or ought to have discovered her claim against Civita Vitiello.

The court found that Marie Leblanc had sufficient knowledge or suspicion of Civita Vitiello's involvement by December 2010, and her son's 2014 disclosure did not constitute new information to trigger a fresh limitation period.

The plaintiff failed to demonstrate reasonable diligence in pursuing her claim.

Consequently, the action was dismissed as statute-barred.

Following a successful motion by the plaintiff to set aside a registrar’s administrative dismissal of an action, the court addressed the issue of costs.

Although the plaintiff succeeded in reinstating the action, the court held that the defendants were entitled to their costs because the reinstatement constituted an indulgence and the defendants were not unreasonable in opposing the motion.

The court found that the defendants had legitimate grounds to resist reinstatement given the long delay and expiry of the limitation period.

The request for substantial indemnity costs was rejected, but the defendants were awarded partial indemnity costs.

The plaintiff commenced an action for damages arising from a workplace slip and fall.

The action was administratively dismissed for delay after the plaintiff's lawyer inadvertently missed a deadline and failed to receive the status notice.

The plaintiff brought a motion to set aside the dismissal.

The court found that while the plaintiff failed to satisfactorily explain the delay, her lawyer's inadvertence, the promptness of the motion, and the complete lack of significant prejudice to the defendants justified setting aside the dismissal order.

The defendant manufacturer brought a motion for summary judgment seeking dismissal of a product liability claim arising from injuries caused by an electronic wheelchair.

The plaintiffs alleged manufacturing defects, inadequate warnings, and failure to provide proper training.

The court held that issues concerning product design standards and causation required expert evidence.

Because the plaintiffs produced no expert or other evidence capable of establishing a breach of the applicable standard of care or causation, there was no genuine issue requiring a trial.

Summary judgment was granted dismissing the claim against the manufacturer.

The plaintiffs sought an extension of time to serve a statement of claim on a contractor nearly nine years after the action was commenced, and the defendants moved to dismiss the entire action for delay.

The court found the plaintiffs’ efforts to locate and serve the contractor were lackadaisical and that significant prejudice resulted from the lengthy delay, including loss of records, faded memory, and the death of a witness.

Accordingly, the court refused to extend time for service on that defendant.

However, although the court found a period of “inexcusable delay” in prosecuting the action, it held that the remaining defendants had not demonstrated prejudice sufficient to create a substantial risk that a fair trial was no longer possible.

The motion to dismiss the entire action for delay was therefore refused.