M. Gregory Ellies

The appellant bank appealed an interlocutory order adjourning its summary judgment motion.

The motion judge had adjourned the motion to hear oral evidence regarding whether the bank knew or should have known that the respondent's brother was using a line of credit, secured by the respondent's condominium, for his own benefit contrary to a trust agreement.

The appellant argued that under Hryniak v. Mauldin, the motion judge was required to determine if there was a genuine issue for trial based solely on the paper record before ordering oral evidence.

The Divisional Court dismissed the appeal, holding that Hryniak does not restrict a motion judge's inherent equitable jurisdiction to adjourn a motion and hear oral evidence to determine if a genuine issue for trial exists.

The applicant sought a vesting order to remove the respondent from the title of her home.

The applicant had contributed the vast majority of the purchase price, while the respondent was placed on title solely to secure a mortgage.

The respondent subsequently assaulted the applicant, stole her car, and fled the jurisdiction, contributing almost nothing to the property's maintenance or mortgage.

The court found the respondent was unjustly enriched and impressed a constructive trust on the property for its full value in favour of the applicant, granting the vesting order and sole possession.

The respondent husband brought a motion for spousal support following a five-year, childless marriage.

He argued the parties had agreed to a $20,000 lump sum, or alternatively sought $325 per month.

The court found no agreement for lump sum support existed, as the $20,000 discussed was for property equalization.

The court rejected compensatory support but awarded non-compensatory support due to the income disparity during the marriage.

The applicant wife was ordered to pay $325 per month for 42 months, plus $65 in costs.

The plaintiff corporation brought a motion for leave to be represented by its sole shareholder, while the defendant brought a motion for security for costs in a construction lien action.

The court granted the plaintiff's motion, noting the trend of allowing sole proprietorship-like corporations to be self-represented.

The court also granted the defendant's motion for security for costs, finding good reason to believe the plaintiff had insufficient assets in Ontario, and ordered the plaintiff to post $20,000.

Following a finding that the respondent condominium corporation unfairly disregarded the applicant's interests by requiring a full-time security guard for a pay-and-display parking lot, the court determined the appropriate remedy.

The court held it had authority under s. 135(3) of the Condominium Act to permit the applicant to make the proposed changes to the common elements without requiring a vote by the unit owners under s. 97(4).

The court found a vote would place owners in a conflict of interest given the applicant's outstanding damages claim.

The court also ordered the respondent to turn on and maintain existing lighting in the parking garage.

In a divorce proceeding, the applicant amended her application to claim an unequal division of net family property under s. 5(6) of the Family Law Act, alleging the respondent recklessly depleted his assets by spending money on a mistress, escorts, and adult websites.

The respondent brought a motion to strike these amendments.

The court found that the amendments failed to disclose a reasonable claim because the applicant did not plead material facts showing a significant reduction in the respondent's net family property or that equalization would be unconscionable.

The motion to strike was granted without leave to amend, as it was clear the applicant could not specify the financial impact of the alleged spending.

The moving party sought a final order terminating child support and reducing spousal support based on his retirement and the terms of a separation agreement.

The responding party conceded child support should terminate but opposed the spousal support reduction.

The court found a material change in circumstances due to retirement and applied the rule against double recovery for previously equalized pension income.

The court ordered a temporary termination of child support and a stepped reduction in spousal support, imputing income to the responding party to encourage self-sufficiency.

The plaintiff corporation brought a motion for summary judgment to enforce a mortgage against the defendant corporation.

The dispute involved two brothers, one acting as the plaintiff's director under a power of attorney from their father, and the other as the sole shareholder of the defendant.

The defendant argued that an oral agreement precluded enforcement and that the father lacked capacity to grant the power of attorney authorizing the action.

The court rejected the oral agreement defence based on the Statute of Frauds and the parol evidence rule.

However, finding a genuine issue regarding the father's capacity, the court stayed the motion for 30 days to allow the defendant's principal to commence proceedings under the Substitute Decisions Act to challenge the power of attorney.

In divorce proceedings, the respondent brought a motion seeking joint custody or unsupervised access, spousal support, equalization of family property, and various property-related orders.

The court declined to revisit custody and access where prior provincial court orders imposed supervised access pending unresolved criminal charges and no change in circumstances was demonstrated.

The request for spousal support was denied due to the absence of a financial statement and evidentiary foundation.

The equalization claim was dismissed as statute-barred under the six-year limitation period in the Family Law Act and the court declined to extend time.

Certain remaining property-related issues were adjourned, while the responding party was awarded costs.

The Waterloo Region District School Board appealed an Ontario Municipal Board decision awarding interest to Erbsville Road Development Inc. on expropriated land from the date of draft subdivision approval, rather than the later date of actual expropriation.

The Divisional Court dismissed the appeal, holding that under s. 33(1) of the Expropriations Act, interest can accrue from a date preceding expropriation when the owner ceases to make productive use of the land due to the impending expropriation.

The court found the board member's determination that productive use ceased upon draft approval was reasonable.

The applicant, a corporate landlord, sought judicial review to quash the City of Waterloo's Residential Rental Housing Licensing By-law.

The applicant argued the licensing fees constituted an ultra vires indirect tax and that the by-law's application to townhouses but not apartment buildings constructively discriminated against families contrary to the Human Rights Code.

The Divisional Court dismissed the application, finding the fees were validly enacted to fund the licensing program and did not constitute a tax.

The Court also held the by-law did not discriminate on the basis of family status, as it targeted specific types of dwellings rather than any protected group.

The moving party sought an order vacating or varying a prior consent order requiring her to pass her accounts as attorney under a continuing power of attorney for an incapable person.

She argued the order was unnecessary because expenses for the incapable person were paid from a joint bank account.

The court held that the circumstances did not fall within Rule 37.14 of the Rules of Civil Procedure and that consent orders may only be varied under Rule 59.06 in limited situations such as fraud or where the order fails to reflect the parties’ intentions.

The evidence did not establish any such basis, and the existence of a joint account predated the consent order.

The court concluded that the moving party remained obligated to pass her accounts and dismissed the motion.

The applicant sought judicial review of the Ministry of Transportation's alleged refusal to grant a development permit for a gas bar unless the applicant entered into an agreement restricting the transfer of the lands.

The Divisional Court dismissed the application, finding that the Ministry had not purported to require the agreement, but rather offered it as an alternative to standard setback requirements.

Furthermore, the application was premature as the applicant had not submitted a revised site plan, meaning no statutory power of decision had yet been exercised.

The Crown appealed an acquittal on a charge of operating a motor vehicle with a blood alcohol concentration exceeding the legal limit after breath sample evidence had been excluded under s. 24(2) of the Charter.

The trial judge had found a breach of the respondent’s right to counsel under s. 10(b) because police failed to give a reasonable opportunity to contact counsel of choice, defaulted quickly to duty counsel, and failed to facilitate contact beyond leaving a single voicemail.

The appellate court held that the informational and implementational components of s. 10(b) were breached where the accused reasonably believed he had no option but to speak with duty counsel rather than wait for his chosen lawyer.

Despite the reliability and minimally intrusive nature of breath evidence, the seriousness of the Charter breach justified exclusion to protect the integrity of the justice system.

The Crown’s appeal from the acquittal was dismissed.

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 appellant mother appealed a summary judgment order making her child a Crown ward without access.

She sought to introduce fresh evidence, arguing her former counsel provided ineffective representation by failing to request disclosure and an adjournment.

The Divisional Court admitted the fresh evidence but dismissed the appeal, finding the new evidence would not have changed the outcome given the mother's history of substance abuse and non-compliance.

The court also rejected arguments that the motion judge erred in his treatment of sibling access and the denial of access to the mother, finding no errors in the consideration of the child's best interests and need for permanency.

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 appellant appealed a decision of the Social Benefits Tribunal upholding the suspension of his Ontario Works benefits.

He argued he was denied procedural fairness because the Tribunal held a telephone hearing rather than an in-person hearing.

The Divisional Court dismissed the appeal, finding the Tribunal had discretion to hold an electronic hearing, the appellant suffered no prejudice, and he failed to demonstrate any error of law in the Tribunal's decision.

The appellant mother appealed a summary judgment order making her child a Crown ward without access.

She argued that her former counsel provided ineffective representation by failing to request disclosure and an adjournment, and that the motion judge erred in his treatment of access, including sibling access.

The Divisional Court admitted fresh evidence but dismissed the appeal, finding that the fresh evidence would not have changed the outcome of the summary judgment motion and that the motion judge made no errors in his access determination.

The moving party (defendant insurer) sought leave to appeal an order dismissing its motion to remove the responding party's (plaintiff's) counsel.

The removal motion was brought because the responding party's counsel retained two experts (a psychologist and an occupational therapist) who had previously been retained by the moving party to assess the responding party's disability claim.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's conclusion that no confidential or litigation-privileged information had been imparted to the experts by the moving party, and that there is no property in an expert witness.