Gregory J. Verbeem

The plaintiff contractor performed emergency and restoration services on a property insured by the defendant insurer after a flood.

The property owner went bankrupt before paying the contractor for the restoration work.

The contractor sued the insurer for the unpaid amounts, alleging breach of contract, negligence, conversion, and unjust enrichment, arguing the insurer should have paid the contractor directly or issued co-payable cheques.

The insurer moved for summary judgment.

The court granted the motion and dismissed the action, finding no contract existed between the insurer and the contractor, the insurer owed no duty of care to the contractor to ensure payment, the contractor had no ownership interest in the insurance proceeds to support a conversion claim, and the insurer was not unjustly enriched.

The defendant solicitor brought a motion to dismiss the action for delay under the court's inherent jurisdiction.

The action, commenced in 2007, alleged professional negligence and breach of fiduciary duty arising from commercial real estate transactions in 2000 and 2001.

The court found the delay of over 15 years to be inordinate and inexcusable, noting the plaintiffs failed to take meaningful steps to advance the litigation since 2014.

The court held that the delay created an unrebutted presumption of prejudice, substantially compromising the defendant's ability to have a fair trial.

The motion was granted and the action was dismissed against the moving defendant.

This decision concerns the costs awarded following a successful motion by Mercedes-Benz Canada Inc. to strike the plaintiff's statement of claim for failing to disclose a reasonable cause of action and being frivolous/vexatious.

The court fixed costs at $25,603.51, payable by the plaintiff to Mercedes-Benz Canada Inc. The court rejected the plaintiff's arguments that Mercedes-Benz Canada Inc. delayed in bringing the motion and that the plaintiff's impecuniosity warranted a significant reduction in costs.

The court applied Rule 49.10, awarding Mercedes-Benz Canada Inc. partial indemnity costs up to its offer to settle date and substantial indemnity costs thereafter, finding its "walk-away" offer to be a valid compromise in the context of a motion to strike.

The offender, Mitchell Vansnick, was convicted of sexual assault.

The court considered aggravating factors including the significant impact on the victim, violence beyond the inherent nature of the assault, victim's extreme intoxication and vulnerability, predatory nature of the offense, digital and vaginal penetration without a condom, repeated disregard for victim's lack of consent, and public location of the assault.

Mitigating factors included the offender's youth, lack of criminal record, positive pre-sentence report, stable employment, strong family and community support, and integral role in family care.

The court also considered the collateral consequence of vigilante violence suffered by the offender post-assault, giving it limited weight.

The primary sentencing objectives were denunciation and deterrence.

The court imposed a sentence of 35 months imprisonment, along with a 10-year firearms prohibition, 20-year sex offender registration, DNA order, and a no-contact order with the victim during incarceration.

The defendant Mercedes-Benz Canada Inc. moved to strike the plaintiff's statement of claim against it without leave to amend.

The plaintiff alleged that his identity was stolen and used in a 'straw buy' of a luxury vehicle, and claimed Mercedes was liable in negligence, vicarious liability, and waiver of tort for the actions of its franchisee.

The court found that the statement of claim failed to plead material facts to support a duty of care, breach, causation, or compensable damages in negligence, nor did it support vicarious liability or an agency relationship.

The court struck the claim against Mercedes without leave to amend and dismissed the action against it.

Two competing applications were brought seeking the interpretation of a commercial lease between a tenant operating a nutritional supplement store and a landlord.

The landlord alleged the tenant breached the lease and a restrictive covenant in favour of another tenant by preparing made-to-order protein shakes, selling weight loss products, and operating a juice bar.

The court found that the lease did not permit the tenant to prepare or mix shakes on-site, constituting a breach.

However, the tenant was permitted to sell weight loss products, and there was insufficient evidence that it operated a juice bar.

A permanent injunction was granted restraining the tenant from selling on-site prepared beverages.

The plaintiffs were successful in defeating the defendants' motion for summary judgment and sought costs of $97,824.74 on a partial indemnity basis.

The defendants argued the amount claimed was disproportionate and excessive, suggesting an award between $10,000 and $15,000.

The court reviewed the time claimed by the plaintiffs' counsel, finding that the hours spent on preparing affidavits, facta, and other materials were unreasonably excessive and not proportional to the complexity of the motion.

Applying the principles of reasonableness and proportionality, the court fixed the plaintiffs' costs at $40,949.89 inclusive of fees, disbursements, and HST.

Following a successful motion by the defendant to compel the plaintiff to attend a neuropsychological assessment, which necessitated a trial adjournment, the parties made written submissions on costs.

The court awarded the defendant partial indemnity costs of $4,868.71 for the motion.

However, because the defendant delayed in arranging the assessment and notifying the plaintiff, the court awarded the plaintiff $3,762.90 for costs thrown away on wasted trial preparation.

The net costs award of $1,106.71 was ordered payable by the plaintiff to the defendant in any event of the cause.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' personal injury action arising from a motor vehicle accident, arguing the claim was statute-barred by the two-year limitation period.

The accident occurred in June 2011, and the plaintiff suffered a stroke one month later.

The action was commenced in July 2015.

The plaintiffs argued the limitation period was suspended due to the plaintiff's incapacity to commence a proceeding and that the claim was not discoverable until 2015 when a medical report causally linking the stroke to the accident was explained to her.

The court found genuine issues requiring a trial regarding both the plaintiff's capacity to commence a proceeding and the date of discoverability, given conflicting medical evidence about her cognitive impairments.

The motion for summary judgment was dismissed.

The appellant mother appealed a trial judge's decision placing her two children in the extended care of the Children's Aid Society without access.

The mother argued the trial judge erred in finding the children were not Métis children under the CYFSA, in finding they were in need of protection due to sexual abuse or exploitation, and in excluding certain documentary evidence.

The appeal court found the trial judge erred in law by failing to identify the children as Métis, but concluded this error did not render the proceeding a nullity or change the ultimate disposition, as extended Society care was the only viable option to protect the children from the risks of domestic violence and sexual exploitation.

The appeal was dismissed.

The court fixed costs payable by the plaintiffs to the Lowe's defendants at $114,091.83 and to the Windsor Police Service (WPS) defendants at $91,841.47, on a joint and several basis.

The court rejected the plaintiffs' arguments of impecuniosity and public interest litigation, finding they failed to provide robust financial disclosure and that their claims were primarily private in nature despite involving Charter rights.

The court found the plaintiffs' conduct unnecessarily lengthened the proceeding and that the costs sought were reasonable given the complexity and duration of the action, and the WPS defendants' offer to settle.

The Crown appealed the acquittal of a young person, S.B., on a charge of sexual assault.

The Crown argued the trial judge made a palpable and overriding error of fact regarding the complainant's certainty that the accused heard her express non-consent, and erred in law or mixed fact and law by failing to establish the accused's knowledge of absence of consent.

The appeal court dismissed the appeal, finding the trial judge's reasons functionally adequate.

The court clarified that the trial judge did not make the factual findings attributed by the Crown, but rather expressed reasonable doubt regarding the complainant's credibility and the reliability of her evidence, particularly concerning inconsistencies in timing and the purpose of being at the location of the alleged assault.

The defendant, Diane Marie Daniher, brought a motion seeking leave to compel the plaintiff, Ryan Nelson, to attend an independent neuropsychological examination.

The motion was brought after the action had been placed on a trial list, requiring leave under Rule 48.04(1).

The court found that a recently served neuropsychological report by the plaintiff's expert, Dr. Cancelliere, presented an unexpected and substantial change in evidence regarding the severity and etiology of the plaintiff's traumatic brain injury, differing from a previous expert's opinion.

The court granted leave and ordered the examination, concluding that the prejudice to the defendant in proceeding to trial without an opportunity to respond to the new expert evidence outweighed the prejudice to the plaintiff from an inevitable trial adjournment.

The appellant father appealed a final order of custody granting care of his biological child to the maternal grandmother.

The child, who has Native status, was found in need of protection after the mother passed away.

The father argued the trial judge erred in applying the best interests test, weighing his criminal record, and assessing the grandmother's commitment to the child's cultural heritage.

The appeal court dismissed the appeal, finding the trial judge made no palpable and overriding errors and properly considered the child's Native status and best interests.

The plaintiff motorcyclist brought a motion for partial summary judgment on the issue of liability following a motor vehicle accident.

The defendant driver had made a sudden left turn into the plaintiff's path of travel.

The court applied the summary judgment framework and utilized its fact-finding powers to resolve conflicts in the affidavit evidence.

The court found the defendant solely liable for the accident, concluding he failed to ensure the turn could be made in safety and failed to see the plaintiff who was there to be seen.

The court found no contributory negligence on the part of the plaintiff.

The parties engaged in an international commercial arbitration regarding a contract for the sale of tomatoes.

The arbitrator awarded the respondent $45,516.95 USD.

The applicant sought to set aside the award, initially under the Arbitration Act, and later attempted to rely on a basket clause to seek relief under the International Commercial Arbitration Act (ICAA) after the three-month limitation period expired.

The court held that the applicant could not use a basket clause to assert a new cause of action out of time.

Furthermore, the court found that even if the ICAA applied, the arbitrator's alleged errors in interpreting trade terms did not conflict with the public policy of Ontario.

The application to set aside the award was dismissed, and the cross-application to recognize and enforce the award was granted.

The applicants, who were charged with conspiracy to traffic in a controlled substance, brought applications under s. 24(2) of the Charter to exclude evidence obtained from wiretap and dialed number recorder (DNR) authorizations.

They argued that the authorizations violated their s. 8 Charter rights because the informations to obtain (ITOs) contained false, misleading, and unconstitutionally obtained information, and that the issuing judge for the DNRs demonstrated a reasonable apprehension of bias.

The court found that while some information in the ITOs had to be excised, including jail visitor logs obtained in breach of s. 8, the remaining evidence was sufficient to support the issuance of the authorizations.

The court also found no reasonable apprehension of bias.

The applications to exclude the evidence were dismissed.

The plaintiffs purchased a house and later discovered extensive mold.

They sued the vendors and the home inspector, Bestcheck Inspection Services and its principal, Raymond Lecours, alleging negligence and negligent misrepresentation.

The home inspector defendants brought a motion for summary judgment, arguing they conducted the inspection according to the applicable standard of care and that the plaintiffs did not reasonably rely on any alleged misrepresentations.

The court granted summary judgment, dismissing the claims against the home inspector defendants, finding no breach of the standard of care and no reasonable reliance by the plaintiffs.

The accused, charged with drug trafficking conspiracy, brought applications for a stay of proceedings alleging their s. 11(b) Charter rights to a trial within a reasonable time were infringed.

The total delay was 41.5 months.

Applying the Jordan framework, the court deducted defence delay and delay caused by discrete exceptional circumstances, including a judge's conflict of interest and an unexpectedly lengthy preliminary hearing.

The remaining delay fell below the 30-month presumptive ceiling.

The court also found that the transitional exceptional circumstance applied, as the parties reasonably relied on the prior Morin framework.

The applications for a stay were dismissed.

Coachman Insurance Company sought a declaration that it had no duty to defend or indemnify its insured, Barry Kelley, under a homeowner's policy for a negligence claim arising from an all-terrain vehicle (ATV) accident.

The policy contained a 'motorized vehicle' exclusion.

The court found the exclusion ambiguous and, construing it narrowly, determined it applied to allegations of Kelley's direct physical interaction with the ATV causing it to flip over.

However, the exclusion did not apply to distinct allegations that Kelley impeded the driver's escape or was intoxicated, as these were considered separate concurrent causes not solely 'due to' the use of the motorized vehicle.

Consequently, Coachman was found to have a duty to defend Kelley for the claims not falling under the exclusion.