Helen M. Pierce

The court rendered an endorsement on costs following a successful motion by the Estate to set aside an ex parte order for a certificate of pending litigation obtained by the plaintiff.

The plaintiff had obtained the certificate without notice to the Estate, despite the Estate being represented, and without full disclosure of relevant facts, such as the property having already been sold.

The Estate sought partial indemnity costs after the plaintiff consented to setting aside the order.

The court found that while Rule 42.01(3) permits ex parte motions for certificates of pending litigation, professional courtesy and the adversarial system require notice when counsel is on the record, and full disclosure to the court.

The court fixed costs at $2,500.00 in favour of the Estate, payable by the plaintiff.

The defendant, Floating Lodges of Sioux Narrows Inc., brought a motion for default judgment against the third party, Eric Schwartz, seeking contribution and indemnity.

This motion followed a settlement between the plaintiffs and Floating Lodges for a personal injury claim.

The third party had been noted in default for failing to file a defence.

The court, having previously dismissed a similar motion for insufficient evidence, reviewed a more comprehensive record detailing the plaintiff's injuries, expenses, and the third party's alleged negligence and contractual indemnity.

The court found the settlement amount reasonable and granted default judgment against the third party for $175,000.00 plus $10,000.00 in costs.

The parents (P.N.R. and K.R.) appealed a summary judgment finding that their children were in need of protection due to physical harm, as determined by a motions judge.

The appeal raised issues regarding fresh evidence, the legal test for physical harm, the application of summary judgment rules, and procedural fairness.

The court dismissed the appeal, affirming the original finding that the children had suffered physical harm.

It found no error in the motions judge's application of the law, including the standard for physical harm and the use of summary judgment powers to weigh evidence and assess credibility.

The court also rejected claims of procedural unfairness and ineffective counsel.

The moving party sought to vary a final judgment for spousal support and reduce arrears, citing a material change in circumstances due to his retirement and reduced income.

The court found that both parties had reached the end of their working lives and were now reliant on government pensions, constituting a material change.

Applying the Spousal Support Advisory Guidelines to the parties' actual incomes from 2019 to 2022, the court recalculated the support obligations, credited the moving party against outstanding arrears, and terminated ongoing spousal support effective December 31, 2022.

The mother brought a motion to determine the school enrollment of the parties' four-year-old child.

The mother sought enrollment in a French Immersion program, while the father, who had unilaterally enrolled the child in an English program contrary to a prior order requiring joint decision-making, sought to maintain the English enrollment.

The court found that it was in the child's best interests to have the opportunity to master French, noting the child's French-Canadian heritage and the benefits of bilingualism.

The court ordered the child to be enrolled in the French Immersion school and directed that both parents, the father's grandmother, and the mother's partner be listed as emergency contacts.

This endorsement addresses the costs arising from the respondents' unsuccessful motion to dismiss an application.

The applicant sought substantial indemnity costs, citing delays caused by the respondents.

The court declined to award substantial indemnity, finding the conduct did not meet the threshold for reprehensible behavior.

Instead, the court fixed partial indemnity costs at $3,000, inclusive, payable by the respondents to the applicant, including costs for a necessary case conference.

The appellant tenant appealed a Landlord and Tenant Board order evicting her from a residential unit for demolition purposes.

The tenant argued the Board erred by extending the time for the landlord to pay the required statutory compensation after the initial cheque bounced due to the tenant's delay in cashing it, and that she was denied natural justice.

The Divisional Court dismissed the appeal, finding the Board properly exercised its discretion under s. 190(2) of the Residential Tenancies Act to extend the time requirement, and that the tenant was afforded procedural fairness.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $7,500 to the responding party.

The moving party, the Town of Caledon, brought a motion for leave to apply for judicial review of two decisions made by an adjudicator.

The Divisional Court granted the motion for leave, with costs of $5,000 payable in the discretion of the application panel.

The court also ordered that the disputed amount paid into court remain there pending the final decision, and stayed the impugned orders.

The moving party brought a motion for leave to appeal an unreported order of Sharma J. dated February 7, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $3,500 to the responding party.

The moving party sought leave to appeal an order of the Superior Court of Justice.

The Divisional Court granted leave to appeal and fixed costs of the motion at $2,500.

The court also set an expedited schedule for the hearing of the appeal and any contemplated motion to stay the appeal pending proceedings before the Supreme Court of Canada.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The respondent, Ms. Mbom, moved for summary judgment seeking an annulment of her marriage to the applicant, Dr. Ikpong, and orders for child support arrears and ongoing child support.

Dr. Ikpong opposed the annulment, arguing he was not previously married, and sought a divorce.

The court found Dr. Ikpong's argument regarding a Nigerian jactitation of marriage decree to be a collateral attack on a prior Quebec Superior Court divorce judgment involving his first wife.

The court granted the annulment, determining the marriage between Dr. Ikpong and Ms. Mbom was void ab initio due to Dr. Ikpong's subsisting prior marriage.

The court also ordered Dr. Ikpong to pay ongoing child support and arrears, rejecting his claim for a credit for a vehicle purchase.

The moving parties (respondents in the main application) brought a motion to strike out the responding party's application, arguing that the dispute over the interpretation of a business sale agreement should proceed by way of an action rather than an application.

The underlying dispute involved the location of a fourth sewage site to be developed under the contract.

The court dismissed the motion to strike, finding that the application framework under Rule 14.05(3)(d) was appropriate for contractual interpretation, even if some factual context was required, and that it was not plain and obvious that the application could not succeed.

This case involved an uncontested hearing to determine the distribution of proceeds from the sale of a matrimonial home.

The respondent sought credit for expenses paid towards the home since its ordered sale, arguing the applicant obstructed the sale.

The court found the applicant had intentionally obstructed the sale, leading to the respondent incurring significant expenses.

The court accepted the respondent's detailed summary of deductions and credits, including half of mortgage payments, property taxes, utilities, and insurance, which were deemed to offset de facto spousal support to which the applicant was not entitled.

The final distribution resulted in the respondent receiving the entire net proceeds of sale, with the applicant's notional share being negative.

The appellant, MAK, appealed decisions of the Consent and Capacity Board that found him incapable of making treatment decisions for his bipolar condition and confirmed a Community Treatment Order.

MAK argued that the Board erred in law and fact by misapprehending evidence, failing to assess his capacity at the time of the hearing, and incorrectly concluding he met the requirements for a Community Treatment Order.

The court dismissed the appeal, affirming that the Board correctly applied the legal tests for capacity and Community Treatment Orders, and that its factual findings, including MAK's inability to appreciate the foreseeable consequences of non-treatment, were entitled to deference.

The applicant, charged with manslaughter, brought an application to exclude his clothing from evidence, arguing it was seized from his father's apartment during a warrantless search in violation of his s. 8 Charter rights.

The court found the applicant had a reasonable expectation of privacy in his father's home based on his familial and cultural background.

The court held the search was unreasonable as there were no exigent circumstances and the father did not provide valid, informed consent.

Applying the Grant framework, the court excluded the evidence under s. 24(2), emphasizing the seriousness of the police conduct in entering a dwelling without a warrant and the negative impact on the Indigenous community's trust in police.

Following the dismissal of its application challenging a COVID-19 business closure order, the applicant argued it should not pay costs because it was a public interest litigant raising novel issues.

The court rejected this argument, finding the applicant litigated for its own financial interests and the statutory interpretation issues were not novel.

The court also held that the Health Unit, having been added as a party on consent, was entitled to costs.

The applicant was ordered to pay partial indemnity costs of $35,000 to the Attorney General and $20,000 to the Health Unit.

The moving party, the former husband, brought a motion to change a 1993 spousal support order, seeking to terminate or reduce his support obligations following his retirement.

The responding party, the former wife, opposed the motion and sought an increase in support to $750 per month.

The court found that while both parties had retired, the responding party continued to suffer economic disadvantage from the marriage and required ongoing support.

The moving party's motion was dismissed, and the responding party's request for an increase was granted, raising the spousal support to $750 per month.

The defendant moved for a further and better affidavit of documents in a construction defect case.

The plaintiffs had produced documents, including expert reports, but failed to serve a sworn, updated affidavit of documents after changing counsel.

The court ordered the plaintiffs to serve a sworn updated affidavit of documents pursuant to Rule 30.07, including all produced documents and those required under Schedules B and C.