H.J. Williams

In a medical malpractice action, the defendant physicians brought a motion under Rule 7 of the Rules of Civil Procedure to declare the self-represented plaintiff a party under a disability and to appoint the Office of the Public Guardian and Trustee (OPGT) as his litigation guardian.

The court reviewed the plaintiff's conduct, including his failure to attend a court-ordered capacity assessment, his attempts to manipulate other capacity assessments, his lack of understanding of the civil litigation process, and his communications suggesting delusions.

The court found the plaintiff to be a party under a disability and appointed the OPGT as his litigation guardian.

The accused was charged with possession of cocaine and crack cocaine for the purpose of trafficking, possession of proceeds of crime, and multiple firearms offences following the execution of search warrants at two apartments.

The Crown's case relied on circumstantial evidence to prove constructive possession.

The court found the accused not guilty of the drug charges, as there was a reasonable doubt regarding his exclusive access to the stash house where the drugs were found.

However, the court found the accused guilty of possessing over $90,000 in proceeds of crime and a loaded restricted firearm found in the apartment where he was arrested, concluding that his guilt was the only reasonable inference.

The defendant brought a motion under the Not-for-Profit Corporations Act, 2010 to overturn the election of the board of directors of the plaintiff church.

The election took place after a physical altercation broke out at the meeting, causing several members to leave for medical attention.

The court found that the defendant was entitled to challenge the election by way of a motion under s. 31(1) of the Act.

The court held that the church failed to prove the election complied with its by-laws, as there was no evidence of the total membership or the number of members present.

The motion was granted, the election was declared invalid, and a new election was ordered.

The plaintiff tenant sued her landlord for injuries sustained in a slip and fall on ice on the front step of her leased row house.

The landlord counterclaimed, arguing the tenant was responsible for winter maintenance of the exclusive use area.

Both parties moved for summary judgment on the issue of responsibility for clearing the ice.

The court held that the front step was an exclusive use area, not a common area, and that the lease provision requiring the tenant to remove snow was not void under the Residential Tenancies Act.

The tenant's motion to dismiss the counterclaim was dismissed, and the landlord's motion was granted in part, declaring the tenant responsible for winter maintenance of the area.

The plaintiffs, including two lawyers and a union, brought a motion for an interlocutory injunction to restrain the defendant from publishing defamatory and harassing posts on a Facebook profile.

The defendant, a former union member, requested an adjournment to retain counsel and transfer the action to Manitoba, which the court denied.

Applying the RJR-MacDonald test, the court found a serious issue to be tried regarding defamation and harassment, irreparable harm to the professional reputations of the plaintiffs, and that the balance of convenience favoured granting the injunction.

The motion was granted with no costs ordered.

The moving party brought an urgent motion for the production of an Agreement of Purchase and Sale (APS) under Rule 30.04(2) of the Rules of Civil Procedure, arguing it was referred to in the responding party's affidavits.

The underlying application sought to extinguish a right of first refusal held by the moving party.

The court dismissed the motion, finding the APS was not incorporated by reference into the affidavits.

Furthermore, the court exercised its discretion to deny production, concluding the APS was not relevant to the core issue of the application and its disclosure could prejudice the responding party due to commercial sensitivity.

The defendant brought a motion to strike the plaintiff's statement of claim without leave to amend.

The plaintiff sought to recover over $3.4 million allegedly owed to his former company, which had been forced into bankruptcy.

The court found that the plaintiff lacked standing to bring claims on behalf of the corporation and that the claims were an abuse of process, as they resurrected issues previously struck in a 2015 action.

The motion was granted, and the statement of claim was struck in its entirety without leave to amend.

Following a summary judgment motion where the defendants were largely successful, the parties settled the action and submitted a joint costs brief.

The defendants sought $32,014.17 in partial indemnity costs, while the plaintiff argued for $15,000, noting the defendants spent twice as much time and charged three times as much as the plaintiff.

The court found the defendants' time investment was generally reasonable given what was at stake, but acknowledged some overkill, ultimately fixing costs at $27,500 all-inclusive.

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.

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 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 the dismissal of the applicant's application, the successful respondent sought costs.

The respondent requested costs of $13,612.53, which was approximately twice the amount it had set out in its Form 57B costs outline delivered prior to the decision.

The court held that a party cannot seek costs exceeding the amount in its costs outline, as doing so would undermine the purpose of the rule requiring parties to commit to their costs positions.

The respondent's costs were limited to the amount requested in its costs outline.

Following a successful application to discharge a mortgage, the applicant sought costs on a substantial indemnity basis, including a request for costs against the respondent's lawyer personally under Rule 57.07(1).

The court noted that the respondent's lawyer had not been given a reasonable opportunity to make representations as required by Rule 57.07(3).

The court issued directions giving the applicant the option to withdraw the request or confirm it, in which case the respondent's lawyer would be given an opportunity to request a hearing and retain counsel.

The mother was substantially successful on the father's motion to change child support and sought full indemnity costs.

The court reviewed the parties' behaviour, time spent, and offers to settle under the Family Law Rules.

The mother had made an offer to settle that was more favourable to the father than the final decision, entitling her to full recovery costs from the date of the offer.

The court awarded the mother $13,000 in fees plus disbursements and HST, and ordered that the costs be deemed as additional support enforceable through the Family Responsibility Office.

The plaintiffs purchased a vacant recreational property in 2005.

In 2014, the defendants purchased an adjacent property and claimed a right of way over a track on the plaintiffs' land, tearing down the plaintiffs' fence to gain access.

The plaintiffs sued for trespass and an injunction, while the defendants counterclaimed for a declaration of a right of way or an access road under the Road Access Act.

The Superior Court of Justice found that the defendants failed to establish a prescriptive easement under the doctrine of lost modern grant, as there was insufficient evidence of 20 years of continuous, uninterrupted use prior to the land's conversion to the Land Titles system in 1999.

The court also held that the track did not qualify as an access road under the Road Access Act.

The court granted an injunction prohibiting the defendants from crossing the plaintiffs' property.

The applicant sought to discharge a $50,000 mortgage registered against his property by the respondent.

The respondent, operated by the son of the applicant's former lawyer, brought a counter-application seeking repayment of various loans.

The court declined to join the proceedings, finding the counter-application required a trial.

On the main application, the court found the mortgage was invalid and unconscionable because there was no contract for debt, the applicant was unaware of the mortgage, and there was an undisclosed relationship between the applicant's lawyer and the lender.

The mortgage was ordered discharged and the counter-application was converted into a separate action.

The defendant homeowners brought a motion to vacate a construction lien registered by the plaintiff contractor, arguing the lien had expired before perfection because the contract was abandoned earlier than claimed.

The homeowners also sought an order for security for costs.

The court found the contractor did not abandon the project until the homeowners refused access, meaning the lien was preserved and perfected in time.

The court also dismissed the motion for security for costs, finding the corporate plaintiff was impecunious and its claim was not obviously devoid of merit.

The plaintiff bank brought a motion for summary judgment to enforce personal guarantees signed by the defendants for loans made to a now-bankrupt corporate borrower.

Three of the defendants brought competing summary judgment motions seeking to discharge their guarantees, arguing they lacked independent legal advice and that the bank acted in a commercially unreasonable manner.

The court granted the plaintiff's motion and dismissed the defendants' motions, finding the guarantees valid and enforceable.

The court held that the lack of independent legal advice did not invalidate the guarantees absent unconscionability or misrepresentation, and the express terms of the guarantees precluded the commercially unreasonable realization defence.

The defendants' counterclaims were also dismissed.

The father brought a motion to change a final consent order for child support, which stated it would not be varied 'for any reason whatsoever'.

He argued that the children's circumstances had changed, as one child had finished university and started working, and the other had moved to British Columbia for university.

The court dismissed the motion to change support, finding that these changes were reasonably contemplated at the time the original order was made and therefore did not constitute a material change in circumstances.

The court did grant orders requiring the mother to pay her share of tuition at the beginning of each semester and allowing the father to remove the older child from his life insurance policy.

Following the dismissal of the plaintiffs' defamation and unjust enrichment action after a five-day trial, the successful defendant sought costs.

The defendant sought partial indemnity costs to the date of his settlement offers and substantial indemnity costs thereafter.

The court found that the defendant's offers did not trigger substantial indemnity costs under Rule 49 and the plaintiffs' conduct did not warrant a punitive costs award.

The court awarded the defendant costs on a partial indemnity basis, fixing the amount at $59,940.78 inclusive of fees, disbursements, and HST.