James F. Diamond

The Applicant brought a motion to vary a consent parenting order, seeking to impose fully supervised parenting time for the Respondent due to concerns about his mental health and alleged non-compliance with treatment recommendations.

The court dismissed the motion, finding that the Applicant failed to demonstrate a material change in circumstances or compelling evidence that the child's welfare was at risk.

The court characterized the Applicant's concerns as *quia timet* and noted that subjective fears, while understandable, do not meet the legal test for varying an interim order.

The applicant brought a motion for a temporary order to increase child support, share post-secondary expenses, and pay arrears, pending the hearing of her Motion to Change a 2012 consent final order.

The court held that the stringent test for temporarily varying a final parenting order also applies to final support orders, requiring compelling and exceptional circumstances.

Finding no such circumstances, the court dismissed the contested portions of the motion and only granted temporary relief on terms consented to by the respondent.

The plaintiff obtained a default judgment against the defendants following a default on a car loan agreement.

The plaintiff sought an order directing a reference to determine issues relating to the judicial sale of the defendants' property, rather than proceeding with a sheriff's sale.

The defendants opposed the motion, seeking an adjournment and a stay of the judgment, but had not moved to set aside the default judgment.

The court granted the plaintiff's motion for a reference, finding a judicial sale advantageous, but stayed enforcement for 60 days to allow the defendants a final opportunity to move to set aside the default judgment.

During an ongoing civil trial, the court held a voir dire to determine the admissibility of an affidavit sworn by a non-party in a separate, sealed family proceeding.

The affidavit had come into the possession of one of the defendants.

The objecting parties argued the affidavit was protected by solicitor-client privilege and was obtained unlawfully.

The court held that the sworn affidavit filed in court was not a privileged communication and that the sealing order did not reinstate privilege.

The court ruled the affidavit admissible for impeachment purposes as a prior inconsistent statement.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's claim for long-term disability benefits on the basis that the plaintiff failed to submit a formal application for benefits.

The court found that the failure to submit a formal claim amounted to imperfect compliance rather than non-compliance, as the defendant had already adjudicated and denied the plaintiff's short-term disability claim and had notice of the long-term disability claim via a completed physician questionnaire.

The court granted the plaintiff relief from forfeiture, finding that the defendant suffered no substantial prejudice, and dismissed the defendant's motion for summary judgment.

The respondents sought to enforce a Utah default judgment against the appellant.

During discovery, the appellant refused to answer several questions, and an Associate Judge ordered him to answer them.

The appellant appealed the Associate Judge's decision, arguing the questions breached solicitor-client privilege or related to a coerced Stipulation of Fact.

The Superior Court allowed the appeal in part, striking one question that sought the content of legal advice, but upholding the orders to answer questions about the steps taken to secure legal advice, whether lawyers were paid, and which portions of the Stipulation of Fact were true, as the appellant had put these matters in issue in his pleadings.

Following the dismissal of the plaintiff's action on a motion for summary judgment, the defendants sought costs on a substantial indemnity basis.

The court found that the plaintiff's unfounded allegations of intentional misconduct, fraud, and conspiracy warranted an elevated scale of costs.

The court distinguished a previous decision involving the same plaintiff and awarded the defendants substantial indemnity costs fixed at $900,000.

The plaintiff vendor brought a motion for summary judgment against the defendant purchasers for anticipatory breach of an Agreement of Purchase and Sale for a pre-construction residential property.

The defendants failed to close the transaction, alleging an oral agreement that the property would be assigned prior to closing for a profit.

The court found no genuine issue requiring a trial, as the defendants failed to provide evidence of the alleged oral agreement or misrepresentations by the plaintiff's agent.

The court also found the plaintiff reasonably mitigated its damages by reselling the property.

Summary judgment was granted, the defendants' counterclaim was dismissed, and a stay of execution pending a third-party claim was denied.

The Gerstel parties brought a motion to adjourn a scheduled five-week trial after the Berkovits parties indicated they intended to call Hosseini, a defaulting party who had previously failed to attend discoveries, as a witness.

The moving parties argued they would be prejudiced if forced to proceed without examining Hosseini.

The court dismissed the adjournment request to avoid further delay, but ordered that Hosseini must submit to a two-day examination for discovery prior to trial, failing which he would be barred from testifying.

The applicant and respondents both provided professional liability insurance to a nurse facing a disciplinary complaint from the College of Nurses of Ontario.

Both insurers acknowledged a duty to defend.

The applicant sought an order that the respondents share the defence costs equally, arguing their 'other insurance' clauses were irreconcilable.

The court found that the 'other insurance' clause in the applicant's policy only applied to claims for compensatory damages ('professional incidents'), not disciplinary complaints.

Therefore, the clauses could be read together, making the applicant the primary insurer for the disciplinary complaint.

The application was dismissed.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action for treble damages and double costs under the Statute of Monopolies and common law torts, following the invalidation of the defendants' patent for Viagra.

Relying on a recent coordinate decision, the court found that the Patent Act and the Patented Medicines (Notice of Compliance) Regulations operate as a complete code, precluding the plaintiff's claims.

The court also dismissed the plaintiff's additional claims for unjust enrichment and nuisance on their merits.

The motion for summary judgment was granted, and both the claim and counterclaim were dismissed.

The moving defendants brought a motion to strike various claims from the plaintiffs' Statement of Claim, including claims for statutory rescission, misrepresentation, common law rescission, and all claims against the individual defendant director personally.

The court struck the claim for statutory rescission without leave to amend as it was brought beyond the two-year limitation period under the Arthur Wishart Act.

The court struck the claims against the individual director, finding no separate identity of interest from the corporate franchisor, but granted leave to amend.

The claims for misrepresentation and common law/equitable rescission were also struck with leave to amend due to a lack of necessary particulars.

The plaintiffs brought a Rule 21 motion to strike portions of the defendants' amended statement of defence and counterclaim, which relied on the doctrine of ex turpi causa.

The defendants alleged the loan funds advanced by the plaintiffs were obtained through illegal means.

The court struck the counterclaim without leave to amend, noting ex turpi causa operates only as a defence, not a cause of action.

The court also struck the relevant portion of the statement of defence, finding no pleaded nexus between the alleged illegal schemes and the loan transactions, but granted leave to amend.

The applicant law firm brought an application seeking a declaration that it had a valid and binding retainer agreement with the respondent, and an order assessing its legal fees.

The respondent alleged the retainer agreement produced by the applicant was a forgery and that the applicant settled matters without authorization.

The court found that a valid retainer agreement existed and that the respondent had provided clear instructions to accept a global settlement.

However, the court declined to assess the accounts itself, referring the matter back to an assessment officer.

The applicant landlord sought a declaration that the lease agreement with the respondent tenant was a commercial lease subject to the Commercial Tenancies Act, despite being executed on a standard residential lease form.

The court applied the predominant purpose test, finding that the tenant used the property primarily for its telecommunications construction business, maintained heavy equipment on site, and used the house as a corporate office.

The court held that the lease was commercial in nature and granted the declaratory relief.

Following the dismissal of the applicants' application, the self-represented respondents sought costs of $33,320.25.

The applicants argued that the respondents were not entitled to costs because they failed to demonstrate an opportunity cost by foregoing remunerative activity, as required by Girao v. Cunningham.

The court held that while the respondents did not prove an opportunity cost, they were still entitled to a modest costs award to incentivize reasonable settlement positions.

The court awarded the respondents partial indemnity costs fixed at $8,500.

A shareholder oppression trial arising from the breakdown of an informal business relationship involving a used car dealership and related real estate ventures.

The court held there was no binding settlement agreement for the wind-up of the dealership because the relied-on email was at most an agreement to agree and lacked acceptance on essential terms.

The court found oppressive conduct where the controlling parties failed to maintain adequate financial records, charged personal expenses to the corporation, and used a related sole proprietorship as an unjustified intermediary that diverted profits from the corporation.

Damages of $292,000 were awarded for oppression, and the remaining certificate of pending litigation was found to have been improperly registered, with any resulting damages to be determined on reference if necessary.

The defendant moved to set aside an ex parte charging order obtained by his former legal counsel for unpaid fees.

The defendant argued the plaintiff failed to make full and frank disclosure and withdrew services, both of which the court rejected.

However, the court found the plaintiff commenced the proceeding before the mandatory 30-day waiting period under s. 2(1) of the Solicitors Act had expired, rendering it a technical nullity.

The charging order was set aside, but enforcement was suspended for 60 days to allow the plaintiff to regularize the proceeding.

The applicant, LawPRO, paid a joint and several costs award in full on behalf of its insured and sought contribution from the respondent co-debtors.

One respondent filed a proposal in bankruptcy and another was judgment-proof.

LawPRO sought an order that the remaining solvent respondent, Ida, pay an equal share of the insolvent respondents' shortfall.

The court held that LawPRO had standing to seek contribution and applied the equitable principle that solvent co-debtors must rateably share the shortfall of insolvent co-debtors.

Ida was ordered to pay a rateable share of the shortfall in addition to her apportioned share of the costs award.

The applicants and respondents are neighbours sharing a mutual driveway subject to registered rights of way.

The applicants brought an application seeking a declaration that their right of way included the right to park their vehicle on the mutual driveway.

The respondents brought a cross-application seeking a declaration that the right of way was limited to ingress and egress, and an order for the removal of obstructions.

The court held that the applicants' right of way did not include an ancillary right to park, as doing so would substantially interfere with the respondents' right of way.

Both parties were ordered to remove any obstructions preventing vehicles from driving down the mutual driveway.