Heather J. Williams

During a criminal trial, a Crown witness failed to appear despite being served with a subpoena.

The Crown requested a material witness warrant under s. 705 of the Criminal Code.

The defence opposed, arguing the subpoena was invalidly issued by a court clerk without any inquiry into whether the witness had material evidence to give, as required by s. 698.

The court agreed with the defence, applying the framework from Dykstra v. Greensword, and held that issuing a subpoena without any case-specific inquiry exceeds the issuer's jurisdiction.

The subpoena was quashed and the request for a warrant was denied.

The plaintiff (ADM) sued the defendant (DW) for unpaid invoices relating to touchscreens.

DW counterclaimed for damages, alleging the touchscreens were defective.

ADM argued DW spoliated evidence by replacing the touchscreens before ADM could test them.

The court dismissed the spoliation argument, finding DW replaced the screens to mitigate damages and satisfy customers, not to affect litigation.

The court found ADM breached the implied conditions of fitness and merchantable quality under the Sale of Goods Act, as the touchscreens suffered from a manufacturing defect causing the cover sheets to collapse.

DW was awarded damages for replacement costs, labour, shipping, and engineering, less a set-off for ADM's unpaid invoices.

The plaintiff brought a motion for summary judgment on a mortgage and sought to dismiss the defendants' counterclaim as statute-barred.

However, the plaintiff failed to include the request to dismiss the counterclaim in its notice of motion.

Citing the need for active case management and proportionality, the court declined to dismiss the limitation period argument outright and instead ordered a timetable allowing the plaintiff to amend its notice of motion and the defendants to file responding evidence.

The applicant brought a motion seeking to enforce an interim separation agreement regarding a joint line of credit, compel outstanding financial disclosure, and request case management for a high-conflict family law proceeding.

The court ordered a structured process for the respondent to pay his share of the line of credit while ensuring his liability is extinguished.

The court also established a fixed timeline for both parties to complete financial disclosure and ordered that the proceeding be case managed.

During a personal injury trial, the plaintiff's counsel brought a motion under Rule 53.01(3) to recall the plaintiff as a witness after new documents were produced during the cross-examination of the plaintiff's family doctor.

The documents, which had not been disclosed prior to trial, contained notes and handwriting suggesting the plaintiff was attempting to manage her medical case.

The court granted the motion, finding that the interests of justice and trial fairness required giving the plaintiff an opportunity to explain the newly produced documents, and imposed restrictions on counsel's communications with the plaintiff prior to her recall.

The respondent brought a motion for summary judgment to dismiss the applicant's claims for retroactive child support, equalization of net family property, and a resulting trust over her pension.

The court dismissed the claim for retroactive child support because the adult child was no longer a student and therefore not a 'child of the marriage' when the application was commenced.

The equalization claim was dismissed because it was a claim provable in bankruptcy and was extinguished when the respondent was discharged from bankruptcy.

The resulting trust claim was dismissed for lack of factual foundation.

The applicant's claim for a divorce order was permitted to proceed.

The plaintiffs brought a motion to stay a summary judgment motion initiated by the defendants.

The trial was scheduled for May 2018, and the summary judgment motion was scheduled for March 2018.

The plaintiffs argued the motion required leave and was inappropriate.

The court found that leave was not required because the defendants had not consented to the action being placed on a trial list.

However, the court permanently stayed the summary judgment motion, finding that it would not resolve the entire action, would duplicate efforts, and could delay the scheduled trial.

The father brought a motion to change previous orders regarding child support, spousal support, and access.

The mother brought a motion to strike the father's motion under Rule 1(8) of the Family Law Rules due to his failure to comply with multiple previous court orders, including failing to pay over $60,000 in support arrears and over $50,000 in an equalization payment.

The Family Responsibility Office (FRO) brought a motion to enforce the support arrears.

The court granted the mother's motion to strike, finding the father had the means to pay but chose not to, and prohibited him from bringing further motions to change without leave until all arrears and costs are paid.

The court also granted the FRO's motion, ordering the father to pay $61,292.68 in arrears within 30 days and $20,000 as security within 45 days, failing which the FRO could seek his committal.

The defendant landlord brought a motion for summary judgment to dismiss the plaintiff tenant's claim for negligent misrepresentation regarding building occupancy levels prior to signing a commercial lease.

The defendant argued the claim was statute-barred and precluded by an entire agreement clause.

The court dismissed the motion, finding a genuine issue requiring a trial regarding when the plaintiff discovered the loss or damage for limitation purposes.

The court also declined to grant summary judgment based on the entire agreement clause, reasoning that doing so while the defendant's counterclaim for rent arrears proceeded to trial risked inconsistent findings and substantive injustice.

The client, a lawyer himself, brought a motion to set aside a registrar's order for the assessment of his former law firm's account.

The client argued that the assessment officer lacked jurisdiction under section 3 of the Solicitors Act because the retainer was disputed, as he had been quoted a flat fee but was billed on an hourly basis after his real estate transaction became complicated.

The court dismissed the motion, finding that the client did not dispute the existence of the retainer or that the work was authorized and performed satisfactorily.

The court held that the disagreement was solely over the quantum of the fees, which falls squarely within the jurisdiction of the assessment officer.

The father of a child in care brought motions to validate the late delivery of his notice of appeal, to stay the trial judge's order making the child a Crown ward with no access, and for access pending appeal for himself and the child's aunt.

The society brought a cross-motion for summary judgment dismissing the appeal.

The aunt sought to be added as a party.

The Divisional Court granted the father's motion to extend the time to appeal, finding no prejudice to the child.

The court dismissed the society's motion for summary judgment, holding that the rules do not permit summary judgment on appeals to the Divisional Court.

The court declined to add the aunt as a party or stay the trial decision, and denied the father access pending appeal.

However, the court granted the aunt access to the child pending the appeal, finding it to be in the child's best interests.

The plaintiff brought a motion to strike the statement of defence filed by the defendant's brother.

The brother, who is not a lawyer, attempted to defend the action using a power of attorney for property, as the defendant resided in the UK and allegedly lacked mental capacity.

The court struck the statement of defence, holding that a power of attorney does not authorize a non-lawyer to conduct litigation on behalf of another person.

The court noted that if the defendant lacks capacity, he must be represented by a litigation guardian and a lawyer.

The plaintiffs brought a motion for court approval of a settlement under Rule 7.08 of the Rules of Civil Procedure, involving minor plaintiffs.

The proposed settlement of $250,000.00 included an allocation of $1,000.00 for each minor.

The court declined to approve the settlement due to concerns about a potential conflict of interest between the litigation guardian and the minor plaintiffs, the absence of proposed minutes of settlement, and the proposal to pay funds into RESPs instead of into court as required by Rule 7.09(1).

The court requested additional evidence to assess whether the settlement was in the best interests of the minor plaintiffs.