James F. Diamond

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.

The plaintiff sought costs after successfully resisting the defendants' motions to strike and for summary judgment.

The court awarded the plaintiff $7,500 in costs for the motion to strike.

However, the court denied the plaintiff costs for the summary judgment motion because the plaintiff's principal sent an improper email threatening the defendants with criminal charges to extort a settlement.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' medical malpractice action, which was commenced nearly 16 years after the allegedly negligent jaw surgery.

The plaintiffs argued the 15-year ultimate limitation period should be tolled under section 15(4) of the Limitations Act, 2002, claiming the mother lacked capacity to commence a proceeding and that the defendants wilfully concealed medical records.

The court found the plaintiffs failed to provide persuasive medical or psychological evidence of incapacity and failed to establish any wilful concealment by the defendants.

The motion was granted and the action was dismissed as statute-barred.

In a bifurcated family law trial, the court determined the issue of decision-making responsibility for the parties' two children.

The applicant father sought sole decision-making authority, while the respondent mother sought split decision-making authority.

The court found the parents to be highly conflicted, with the mother exhibiting medical hypervigilance and the father showing aloofness regarding educational needs.

Applying the newly amended Children's Law Reform Act factors, the court concluded that a split order was unworkable and awarded final decision-making responsibility to the applicant father, subject to a structured consultation process.

The self-represented plaintiff brought a motion for leave to amend his statement of claim to add unnamed directors and officers of the corporate defendant, alleging negligence in a workplace harassment investigation.

The court dismissed the motion, finding that the proposed defendants were not identified, there is no tort of negligent investigation against employers in Ontario, and the plaintiff failed to plead material facts showing the directors and officers exhibited a separate identity of interest from the corporation.

The applicants sought to enforce two letters rogatory issued by the U.S. District Court for the District of Columbia to compel documentary and oral evidence from the respondent, a non-party in the underlying U.S. patent infringement litigation.

The respondent opposed, arguing the requests were overly broad, moot due to discovery deadlines, and contrary to public policy as they sought proprietary source codes.

The court granted the applications, enforcing the letters rogatory but narrowing their scope and imposing protective conditions, including compliance with a supplemental protective order and the deemed undertaking rule.

Following a trial and the release of Reasons for Decision, the parties were unable to agree on the final equalization payment based on the court's findings.

The court reviewed the parties' respective Net Family Property statements and submissions.

Finding the applicant's calculations more in line with the Reasons, with some adjustments, the court ordered the respondent to pay an equalization payment of $59,929.86.

As success at trial was divided, no costs were awarded.

The defendant brought a motion under Rule 31.11(6) to read in the discovery transcripts of its deceased corporate representative.

In response, the plaintiff brought a cross-motion seeking production of communications between the deceased representative, the defendant, and its lawyers, as well as documents relating to a consulting agreement between the representative and the defendant.

The court dismissed the request for general communications, finding it was too late to seek discovery documents and that the communications were privileged.

However, the court ordered the production of documents relating to the formation of the consulting agreement, as they were relevant to the credibility of the deceased witness's evidence for the pending Rule 31.11(6) motion.

The applicant law firm brought a motion seeking directions to assess all legal accounts rendered by the respondent law firm, including those rendered to predecessor counsel between 2012 and 2018.

The respondent argued that only its final account rendered to the applicant was subject to assessment.

The court dismissed the motion, finding that under the Solicitors Act, the applicant lacked standing to assess the prior accounts as it was neither a client, a party chargeable, nor a party who had paid those accounts.

The plaintiffs brought a motion to strike the jury notice in a motor vehicle accident action, arguing that delays in jury trials caused by the COVID-19 pandemic would prejudice the plaintiff's loss of income claim.

The court dismissed the motion, finding that the plaintiffs failed to discharge their onus to show that justice would be better served by discharging the jury.

The court noted that the delay was partly due to the parties' own pre-trial timelines and that jury trials might resume in the near future.

The plaintiff was injured in a motor vehicle accident when the vehicle he was in was struck by a vehicle driven by the defendant.

The main action settled for $220,000.

The defendant brought a third party claim against another driver, alleging that the third party's road rage and threatening behaviour caused the defendant to flee the scene and strike the plaintiff's vehicle.

The court found that the third party's conduct materially contributed to the accident and apportioned liability 50/50 between the defendant and the third party, ordering the third party to pay $110,000.

The plaintiff purchased a commercial property from the defendants.

After closing, the plaintiff discovered that the version of a commercial lease provided by the defendants prior to closing was allegedly incorrect, and that the true lease obligated the landlord, rather than the tenant, to repair the roof.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claims for misrepresentation and breach of contract, arguing the plaintiff had already negotiated a price abatement for the roof and did not rely on the lease.

The court dismissed the motion, finding a genuine issue requiring a trial regarding whether the plaintiff lost the opportunity to seek contribution from the tenant based on the incorrect lease provided.

This decision concerns the sentencing of J.T. for failing to attend court, contrary to section 145(2)(b) of the Criminal Code.

J.T. was convicted after absconding during the 13th day of his second trial for sexual abuse and exploitation, fleeing to British Columbia, and assuming a new identity.

The Crown sought an 18-month sentence, while the defence proposed 3-6 months.

The court considered aggravating factors, including absconding mid-trial and assuming a new identity, and mitigating factors such as the offender's age, permanent residence in Canada, and impending deportation.

The judge imposed a 12-month sentence, less pre-sentence custody, emphasizing deterrence, denunciation, and respect for the law, and a 3-year probation order.

The plaintiffs brought a motion for summary judgment seeking damages after the defendant failed to close on an agreement of purchase and sale for a residential property.

The property was originally sold for $1,450,000 but, following the breach, was resold for $1,120,000.

The defendant argued the plaintiffs failed to mitigate their damages by including an 'as is' clause in the second listing.

The court rejected the defendant's expert evidence regarding the property's value and found the plaintiffs acted reasonably in mitigating their damages.

Summary judgment was granted in favour of the plaintiffs for $250,442.08, representing the difference in sale price plus carrying costs and legal fees.

The defendant brought a motion to dismiss or stay the plaintiff's action, arguing that the Ontario Superior Court lacked jurisdiction or, alternatively, that Quebec was the more appropriate forum (forum non conveniens).

The court found that Ontario did have jurisdiction based on presumptive connecting factors, including the defendant carrying on business in Ontario and the insurance policy being issued there.

In assessing forum non conveniens, the court weighed the factors from Club Resorts Ltd. v. Van Breda, noting that while the plaintiff resided in Quebec and some defendant employees were there, key plaintiff witnesses were in Ottawa, Ontario.

The court also considered Ontario's mandatory mediation rule as a potential juridical advantage for the plaintiff.

Ultimately, the court concluded that the defendant failed to discharge its onus to show that Ontario was forum non conveniens, and therefore, the motion was dismissed.

The plaintiff commenced a proceeding against Toronto Animal Services, Toronto Police Services (TPS) officers, and City Legal employees, alleging various torts arising from dog attack incidents in 2016, subsequent Dog Owners’ Liability Act (DOLA) proceedings, and criminal charges.

The defendants brought a motion to strike the entire Statement of Claim without leave to amend.

The court struck claims against TPS defendants arising from the 2016 incidents as statute-barred under the Limitations Act, 2002, and negligent investigation claims due to the plaintiff's criminal convictions.

Claims for misfeasance in public office against City Legal defendants were struck for inadequate pleading and lack of precedent for municipal staff liability, though leave to amend was granted.

Claims against TAS defendants seeking return of dogs were stayed pending the conclusion of ongoing DOLA proceedings to avoid duplicitous findings and abuse of process.

The plaintiff was granted leave to file a Fresh As Amended Statement of Claim to properly plead surviving claims, such as conspiracy to injure and misfeasance in public office.

The parties, both self-represented, proceeded to trial on issues of date of separation, equalization of net family property, unjust enrichment, and spousal support.

The court found the date of separation to be January 31, 2015, as argued by the applicant.

The court dismissed the applicant's claims for unjust enrichment and an unequal division of net family property, finding no binding agreement regarding in-kind contributions and that the threshold for unconscionability was not met.

The court made specific findings on various disputed assets and debts for equalization purposes.

Both parties' claims for spousal support were dismissed.

The individual defendants brought a Rule 21 motion to strike the plaintiff's claim against them for fraudulent misrepresentation.

The plaintiff alleged that the defendants, as officers/directors of the vendor corporation, knowingly provided a false lease and statutory declarations regarding the property's condition and tenant obligations during a property sale.

The defendants argued the claim was an attempt to convert a breach of contract into a personal tort.

The court dismissed the motion, finding the claim for fraudulent misrepresentation was sufficiently pleaded, as allegations of fraud, deceit, and dishonesty against corporate officers/directors can proceed, taking their actions outside their corporate role.