Heather J. Williams

The applicant sought disclosure of medical and legal records relating to her late mother's estate, alleging suspicious circumstances and lack of capacity surrounding a 2015 will that disinherited her.

The executor provided evidence that the mother changed her will after discovering the applicant had improperly transferred joint investment accounts while acting as her attorney for property.

The court dismissed the application, finding the applicant failed to meet the minimal evidentiary threshold required to put the estate to the burden of proving the will in solemn form.

The defendant brought a motion to compel the plaintiff to answer two questions refused at his examination for discovery in a personal injury action arising from a motor vehicle accident.

The defendant sought production of the plaintiff's academic records to verify his computer science degree, which underpinned his loss of income claim, and childhood medical records from SickKids Hospital regarding a prior head injury.

The court granted the motion, finding both sets of records relevant to the issues of damages and causation.

Following a trial where the court invalidated powers of attorney due to incapacity and undue influence, the successful applicants sought their costs.

The court found that the unsuccessful respondent's conduct, which included manipulating the incapable person and unnecessarily lengthening the litigation, warranted a costs award on a substantial indemnity scale.

The court ordered the respondent to pay $150,000 in costs to the applicants, rather than having the costs paid from the incapable person's assets.

The plaintiffs sought leave to bring a motion for an interlocutory injunction against their neighbours regarding a disputed boat ramp and dock, after having already set the action down for trial.

The court denied leave, finding no substantial or unexpected change in circumstances since the action was set down, as the complained-of conduct was already detailed in the statement of claim.

In obiter, the court noted that even if leave had been granted, the injunction would have been dismissed under the RJR MacDonald test because the plaintiffs failed to demonstrate irreparable harm and the balance of convenience favoured maintaining the status quo.

The mother brought an urgent motion seeking to have the parties' eight-year-old daughter returned to her full-time care before the start of the school year.

The daughter had been living with the father since June on what the mother claimed was a temporary basis.

The court found no urgency, noting the mother failed to establish the placement was temporary and that the impending sale of the matrimonial home created uncertainty about the daughter's future school district.

The motion was dismissed, and the daughter was ordered to remain in the father's care on an interim basis pending involvement of the Office of the Children's Lawyer.

The plaintiff sought default judgment against nine persons in an action for constructive dismissal.

However, only the Crown was named in the title of proceeding, and the plaintiff had not complied with the notice requirements under the Crown Liability and Proceedings Act, 2019.

The court adjourned the motion, directing the plaintiff to consider whether the parties were properly named and requiring her to serve any future default judgment motion materials on the defendants.

The applicant mother brought an urgent motion to temporarily relocate to Dubai for 11 months with the parties' 10-year-old daughter to accept a teaching contract.

The respondent father opposed the motion, raising concerns about the UAE not being a Hague Convention signatory, the COVID-19 pandemic, and the impact on his relationship with the child.

Applying the relocation provisions of the Divorce Act, the court found that the temporary relocation was in the child's best interests, noting the educational and cultural benefits, and granted the motion with conditions to ensure the child's return and the maintenance of the father's relationship through videoconferencing.

The respondent requested an urgent case conference to seek a motion to dismiss the appellant's appeal of a Landlord and Tenant Board decision, or alternatively, to lift the stay of the decision.

The court scheduled the case conference and provided a virtual link.

The appellant attended, but the respondent failed to appear.

The court noted the scarcity of court time and directed that if the respondent wishes to request another appointment, he must explain his failure to attend.

Following execution of a search warrant at a Kanata residence, police seized cocaine, crack cocaine, two loaded handguns, ammunition, a money counter, packaging materials, and cash.

The court applied constructive and joint possession principles under s. 4(3) of the Criminal Code and the circumstantial evidence framework to determine which occupant controlled the drugs and firearms found in separate bedrooms.

The court found both respondents jointly in possession of the drugs, but only one respondent in possession of each respective firearm found in his bedroom.

The cocaine was held to be possessed for the purpose of trafficking based on surveillance evidence, packaging materials, a scale, a buffing agent, loaded firearms, and a barricaded door, while the crack cocaine supported only simple possession.

The proceeds of crime allegation relating to $195.00 was not proven.

The applicants sought to invalidate 2016 powers of attorney executed by their 91-year-old mother/sister-in-law in favour of her son, who lived with her.

The son brought a competing application to validate the 2016 powers of attorney and be appointed guardian.

The court found the 2016 powers of attorney were executed under suspicious circumstances and the son failed to prove the mother had the requisite capacity to execute them.

The court also found the son exercised undue influence over the mother.

The 2016 powers of attorney were declared invalid, the 2009 power of attorney for property was declared operative, and the applicants were appointed joint guardians of the person.

The plaintiffs brought a motion to enforce a $200,000 settlement under Rule 49.09, arguing they had accepted a 2016 offer from the defendants in 2020.

The court found that while the 2016 letter contained a valid Rule 49 offer that remained open for acceptance, the plaintiffs' purported acceptance in 2020 introduced new terms regarding mutual releases and costs involving parties not represented by the offeror's counsel.

Consequently, the purported acceptance was a counter-offer, and no agreement on essential terms was reached.

The motion to enforce the settlement was dismissed.

The Crown appealed the accused's acquittal on a charge of sexual assault.

The trial judge had found that the complainant communicated consent through her actions and that the absence of a condom did not negate consent.

The Superior Court of Justice allowed the appeal, finding the trial judge made several errors of law.

Specifically, the trial judge improperly conflated the actus reus and mens rea of sexual assault, failed to consider whether the complainant subjectively consented to intercourse without a condom, and failed to assess whether the accused took reasonable steps to ascertain consent.

The acquittal was set aside and a new trial ordered.

This decision addresses a costs endorsement following the dismissal of the plaintiff's motion to strike a jury notice as premature.

The parties had initially agreed to partial indemnity costs for the motion, but the defendant, having successfully opposed the motion, sought substantial indemnity costs.

The court considered the defendant's offers to settle, noting they did not trigger Rule 49 consequences.

Despite the defendant's success, the court declined to award substantial indemnity costs, finding the plaintiff's refusal of the offers was not unreasonable given the rapidly evolving legal landscape concerning jury trials during the COVID-19 pandemic and the defendant's shifting position.

Partial indemnity costs of $4,000 were awarded to the defendant.

The applicant, charged with firearms offences, brought a Charter application arguing that police lacked reasonable grounds to arrest him without a warrant and unlawfully searched his vehicle incident to arrest.

He also alleged his right to counsel was violated.

The court found that the arresting officer had objectively reasonable grounds to order the arrest based on a combination of witness descriptions, vehicle identification, and a partial licence plate match.

The subsequent search of the vehicle, which yielded a loaded handgun, was deemed a lawful search incident to arrest.

The court also found no violation of the applicant's right to counsel.

The Charter application was dismissed.

The plaintiff sought to amend her statement of claim to add TQ Landscapes as a defendant, alleging she slipped on ice in a parking lot.

TQ Landscapes argued the claim was statute-barred due to the expiration of the limitation period.

The court found the plaintiff subjectively discovered her claim against TQ Landscapes on March 5, 2019, when she received documents identifying TQ as the snow removal contractor.

However, the court was unable to determine the date a reasonable person would have discovered the claim, thus allowing the amendment but permitting TQ Landscapes to plead a limitation defence.

The plaintiff brought a motion to strike the defendant's jury notice due to the suspension of civil jury trials in Ottawa caused by the COVID-19 pandemic.

The plaintiff argued that the delay in obtaining a jury trial date caused her financial prejudice under the Insurance Act.

The court found the motion premature because the parties were not yet ready for trial, requiring updated medical and actuarial reports.

The motion was dismissed without prejudice to the plaintiff's right to bring a similar motion once the action was trial-ready.

Following a family law trial with divided success, both self-represented parties sought costs.

The father was primarily successful on parenting issues, while the mother was primarily successful on financial issues.

The court found the mother's conduct regarding parenting issues unreasonable, but noted the father should have conceded certain financial obligations earlier.

Given the divided success, the parties' conduct, and the amounts claimed, the court ordered that each party bear their own costs.

The defendants in a medical malpractice action brought a motion for the production of documents from the plaintiffs' lawyer's file prior to cross-examinations on affidavits.

The affidavits were filed in support of the plaintiffs' pending motion to extend the time to set the action down for trial.

The defendants argued the plaintiffs waived privilege by referring to the lawyer's steps to advance the litigation.

The court found a limited waiver of litigation privilege regarding the fact and timing of the lawyer's communications with medical experts, but held that the plaintiffs were not required to produce the corroborating documents prior to the cross-examination.

The motion was largely dismissed, with the plaintiffs ordered only to have redacted corroborating documents available at the cross-examination.

The defendant, Paolo Messina, was successful on a summary judgment motion dismissing the plaintiffs' action against him.

He sought costs on a partial indemnity basis up to the date of an offer to settle, and substantial indemnity costs thereafter.

The court found no reprehensible conduct or Rule 49 offer to justify substantial indemnity costs, awarding partial indemnity costs instead.

After reviewing the principles of partial indemnity costs, including the rule that they must be less than two-thirds of actual costs, the court fixed the defendant's costs at $47,029.64, noting the plaintiffs' unreasonable conduct in maintaining the action without evidence.

Following a motion and cross-motion regarding parenting time, decision-making authority, and child support where success was divided, the father sought partial indemnity costs of $32,285.16.

The mother argued no costs should be awarded due to divided success and the father's conduct.

The court found the father was the more successful party overall, particularly on the primary issues of parenting time and decision-making authority.

After considering the factors under Rule 24(12) of the Family Law Rules, including the parties' behaviour, time spent, and proportionality, the court ordered the mother to pay the father fixed costs of $18,000.