Helen A. Rady

The court heard multiple motions in a long-running dispute over a real estate transaction and mortgage discharge.

The third party sought summary judgment dismissing claims against it as statute-barred and disclosing no cause of action.

The plaintiffs sought leave to amend their pleadings and summary judgment dismissing parts of the defendant's counterclaim.

The defendant sought leave to amend his defence to plead equitable setoff.

The court granted the motions for leave to amend pleadings, finding them tenable in law.

However, the court dismissed the motions for summary judgment, concluding that genuine issues requiring a trial existed regarding the expiry of limitation periods, discoverability, and the third party claim for contribution and indemnity.

The insurer applied for a determination of whether s. 45 of the Statutory Accident Benefits Schedule requires an insured to identify a single accident when applying for a catastrophic impairment designation.

The insured had been involved in three motor vehicle accidents and submitted a single OCF‑19 application claiming catastrophic impairment based on the cumulative effects of all three accidents.

The court interpreted the legislation and regulatory scheme and concluded that the catastrophic impairment determination must be anchored to a single identified accident.

However, the insured may still rely on the cumulative impact of prior accidents where the specified accident represents the tipping point leading to catastrophic impairment.

The court therefore granted the application in part and declared that the application must specify one accident.

The plaintiff sought leave to file a statement of claim after failing to do so within the 30‑day period following issuance of a notice of action.

The underlying action alleged damages for wrongful arrest, prosecution, and incarceration arising from charges that resulted in an acquittal.

The court held that issuing the notice of action within the limitation period tolled the limitation period and that the failure to file the statement of claim in time was an irregularity caused by solicitor inadvertence.

Applying the test from Nugent v. Cook, the court found the delay resulted from inadvertence and caused no prejudice to the defendant.

Leave was granted to issue the statement of claim and extend time for service.

The defendants brought a motion to adjourn a scheduled trial in a professional negligence action arising from legal and accounting advice provided in connection with a corporate reorganization that allegedly caused adverse tax consequences.

The defendants argued that the plaintiffs’ damages theory had expanded late in the litigation to include business losses, requiring a responsive expert report and further discovery.

Applying Rule 52.02 and the factors set out in Ariston Realty Corp. v. Elcarim, the court held that proceeding without the defendants’ damages expert would be fundamentally unfair.

A brief adjournment was available and no non-compensable prejudice to the plaintiffs was established.

The interests of justice therefore required that the trial be adjourned.

Following dismissal of a motion for an interim injunction, the successful defendants sought substantial indemnity costs of $26,270.93 for the interlocutory proceeding.

The court acknowledged the general presumption that the successful party is entitled to costs and that interlocutory costs are ordinarily payable forthwith.

However, given that the underlying dispute raised a serious issue to be tried concerning alleged use of a protected confectionery recipe and related marketing practices, the court concluded that the justice of the case warranted a different approach.

Costs of the motion were therefore reserved to the trial judge, who would be better positioned to assess entitlement in the context of the full record.

The defendants brought a Rule 21 motion to determine questions of law regarding applicable limitation periods and proper parties in an action for damages arising from a municipal drain.

The court held that the limitation period in s. 111 of the Drainage Act applies only to proceedings before a referee, not the Superior Court, meaning s. 45 of the former Limitations Act applied to the plaintiffs' claims.

The court also found that the one-year limitation period under s. 46 of the Professional Engineers Act applied to the claims against the engineering defendants.

Finally, the court determined that under s. 79 of the Drainage Act, the municipality is strictly liable for damages caused by the condition of drainage works, precluding claims against the other defendants.

The plaintiff sought an interlocutory injunction restraining the defendants from using the term “mint smoothie” to describe a chocolate confection, alleging trademark infringement and passing off under the Trademarks Act.

The court accepted that there was a serious issue to be tried given the parties’ relationship, the defendants’ marketing references to family recipes, and the existence of a registered trademark.

However, the plaintiff failed to demonstrate irreparable harm as required by the RJR‑MacDonald test.

Evidence of marketplace confusion was largely hearsay and insufficient, and any potential damages could be quantified.

The balance of convenience also favoured the defendants because the disputed product represented a significant portion of their sales.

The motion for an interlocutory injunction was dismissed.

The accused brought two applications: one seeking a variation of bail conditions based on an alleged material change in circumstances, and another seeking further disclosure from the Crown.

The disclosure request targeted confidential informant files, occurrence reports, redacted officer notes, and additional police notebook entries.

The court reviewed the law governing informer privilege and disclosure obligations under Stinchcombe, emphasizing that informer privilege is near-absolute and cannot be balanced against other interests except where innocence is at stake.

The court held that the requested informant materials were protected by privilege and that additional materials sought were either irrelevant or outside the investigative file relied upon for the search warrants.

Finding that disclosure had been provided in a reasonably timely and adequate manner, the court concluded that no material change in circumstances justified varying the accused’s bail.

Following a jury trial in a personal injury action where the defendants were found not liable, the defendants sought costs of the proceeding.

The plaintiffs argued that costs should be reduced due to impecuniosity, excessive preparation time, inclusion of disbursements for unused experts and surveillance, and the derivative nature of a Family Law Act claim.

The court held that disbursements for unused experts may still be recoverable if reasonably incurred in preparation for trial, but reduced the defendants’ claim by excluding preparation related to two aborted trials.

The court also considered the plaintiff’s financial hardship as a discretionary factor.

Balancing Rule 57.01 considerations, the court awarded reduced costs to the defendants.

Following the granting of summary judgment in favour of a bank against a defendant borrower, the court considered submissions on costs.

The successful plaintiff sought costs of the action and the summary judgment motion on a partial indemnity basis totaling $21,991.01 inclusive of disbursements and HST.

The defendant accepted that costs were payable but argued the amount was excessive due to the absence of discoveries or cross-examinations and suggested a reduced amount.

The court held that the amount sought was reasonable, noting the need to prepare for several pleaded defences and the lack of duplication of effort in counsel’s work.

Applying the criteria under Rule 57.01, the court awarded the full amount requested.

Following dismissal of the defendants’ motion for summary judgment seeking to strike a motor vehicle accident claim as statute-barred, the plaintiffs sought costs on a substantial indemnity basis.

The motion had raised a novel issue concerning the interaction between discoverability and the plaintiffs’ admitted knowledge of the two‑year limitation period prior to its expiry.

The court held that the defendants were justified in bringing the motion given the claim’s lengthy procedural history and the legal uncertainty surrounding the limitation issue.

While the plaintiffs were entitled to costs as the successful party, the court found the hours claimed excessive and rejected substantial indemnity.

Costs were fixed at a reduced amount that was fair and reasonable to the unsuccessful party.

The Crown sought a ruling on the admissibility of a 911 call and a police statement made by the accused’s spouse concerning a stabbing incident.

Because the couple married after the events but before trial, the spouse was incompetent to testify for the Crown under s. 4(1) of the Canada Evidence Act.

The Crown argued the statements should be admitted under the principled exception to the hearsay rule on the basis of necessity and reliability.

Applying the framework from Hawkins and Couture, the court held that the spousal incompetency rule must remain analytically distinct from hearsay analysis and that admitting the statements would undermine the rule’s underlying rationale of protecting marital harmony and preventing conscription of a spouse into the prosecution.

The proposed evidence was therefore inadmissible.

The defendant police officer brought a motion for summary judgment dismissing a claim arising from a traffic stop.

The self-represented plaintiff alleged that statutory laws such as the Highway Traffic Act did not apply to him because he had not sworn allegiance to the Crown and claimed to be a “human being” rather than a legal person.

The court found the arguments resembled organized pseudolegal commercial argument (OPCA) concepts, including claims of immunity from statute and dual-persona theories.

Relying on authorities including Meads v. Meads and R. v. Klundert, the court held individuals cannot choose whether statutory law applies to them and that such arguments are legally baseless.

Finding no genuine issue requiring a trial, the court granted summary judgment dismissing the action.

The appellant appealed the dismissal of her action against the police for trespass, intentional infliction of mental suffering, and misfeasance in public office after officers shot and killed her pit bull terriers while executing an arrest warrant.

The appellant argued the trial judge erred in assessing credibility, placing an onus on her regarding alternative steps the police could have taken, and failing to find causation for her psychological injury.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility assessments or his conclusion that the police acted reasonably in prioritizing human safety during a high-risk situation.

The court also upheld the trial judge's decision to decline making findings on causation given the lack of liability.

The applicant union sought judicial review of an arbitrator's decision upholding the termination of an employee who purchased marijuana while on duty in a City vehicle.

The union alleged the employee was disabled due to marijuana addiction and required accommodation under the Human Rights Code.

The Divisional Court dismissed the application, finding the arbitrator's conclusion that the union failed to prove a disability on a balance of probabilities was reasonable, largely due to the employee's lack of credibility and uncorroborated evidence.

The appellants appealed the dismissal of their motion for summary judgment, which sought to dismiss the respondent's counterclaim as statute-barred under the Limitations Act.

The respondent had alleged fraudulent misrepresentation regarding a fuel-saving device but failed to file responding evidence on the summary judgment motion.

The Divisional Court allowed the appeal, finding the motion judge made palpable and overriding errors by relying on unsupported pleadings and misapprehending when the limitation period commenced.

Summary judgment was granted dismissing the counterclaim.

The appellant general contractor sued the respondent subcontractor for breach of contract after the respondent refused to commence work without an agreement for extra costs due to inaccurate tender documents.

The respondent counterclaimed for loss of profit and surveying costs.

The trial judge dismissed the appellant's claim and awarded damages to the respondent.

On appeal, the Divisional Court found that the substantial errors in the tender documents constituted a fundamental mistake that rendered the contract void.

Consequently, neither party was entitled to damages.

The appeal was allowed in part, setting aside the trial judgment in favour of the respondent.

The plaintiff bank moved for summary judgment against the defendant guarantor for the balance owing on commercial loans.

The defendant argued that the bank's receiver sold the mortgaged property improvidently, thereby raising a genuine issue for trial.

The court found that the receiver took reasonable precautions to obtain the true market value of the property, including obtaining an appraisal and listing it on the MLS for a reasonable period.

The court concluded there was no genuine issue requiring a trial and granted summary judgment to the bank.

The defendants moved for summary judgment to dismiss the plaintiffs' motor vehicle accident claim as statute-barred, arguing the two-year limitation period had expired.

The plaintiffs argued the discoverability principle extended the limitation period because the plaintiff did not know her injuries met the statutory threshold until later.

The court found a genuine issue for trial regarding discoverability, noting that the plaintiff's initial concerns about her injuries were insufficient to start the limitation period without medical evidence establishing a serious and permanent impairment.

The motion was dismissed.

The Attorney General sought forfeiture of a residential property under Part III of the Civil Remedies Act, 2001 on the basis that it had been used as a commercial marijuana grow operation.

The respondent had previously pleaded guilty to production of marijuana under the Controlled Drugs and Substances Act and received a fine in criminal proceedings where the property restraint order was lifted and no forfeiture was pursued.

The court found on a balance of probabilities that the property had been used as an instrument of unlawful activity generating profit and that the respondent was not a responsible owner.

However, applying the “interests of justice” exception under the Civil Remedies Act, the court held that forfeiture would be unfair in light of the circumstances surrounding the plea bargain and the respondent’s reasonable belief that his home would not later be subject to forfeiture.

The application for forfeiture was therefore dismissed.