James F. Diamond

The defendants brought a motion to strike portions of the plaintiff's amended statement of claim, specifically allegations of express/implied misrepresentation and breach of duty to disclose against Larry Davis.

The court struck out the claim based on express/implied misrepresentation, finding the particulars insufficient and the alleged representation too remote in time.

However, the court dismissed the motion to strike the claim based on a breach of a duty to disclose, acknowledging the arguable existence of a "special relationship" between a proposed borrower and a bank that could create such a duty.

The applicant sought sole custody of the child and permission to relocate with the child from Toronto to New Ross, Nova Scotia.

The respondent sought joint custody and opposed the relocation.

The court granted the applicant sole custody, finding her to be the primary caregiver and psychological parent, and permitted the relocation, noting the applicant's strong support system in New Ross and the child's established connection to the area.

The court also ordered child support based on the respondent's income and addressed section 7 expenses, while spousal support was waived by the applicant upon relocation being granted.

The plaintiff bank brought a motion for summary judgment against the defendants for outstanding loan and credit card debts.

The defendant Guy Sanders sought leave to file responding materials on the day of the hearing, which the court denied due to his failure to comply with previous timetable orders and lack of valid explanation.

The court found the plaintiff's affidavit evidence sufficient to establish the debts, noting the defendants' pleadings contained only bald denials without particulars.

The court granted summary judgment for the plaintiff and dismissed the defendants' counterclaim.

The plaintiff sued the defendants for defamation based on witness statements provided in a prior action.

The defendants moved for summary judgment, arguing the claim was statute-barred by the Limitations Act, 2002, and alternatively, that the statements were protected by absolute privilege.

The court found the plaintiff's claim was discovered in March 2012, and the action, commenced in February 2016, was outside the two-year limitation period.

The plaintiff's arguments for tolling or extension were rejected.

The motion for summary judgment was granted, dismissing the plaintiff's action.

Costs were awarded to the defendants on a substantial indemnity basis.

The plaintiff, Solar Income Fund Inc. (SIF), sued Jennifer Jackson (its former President and COO), Emerging Power Inc. (EPI), and 2427672 Ontario Inc. (242) for $1,000,000 in damages, alleging misrepresentation, breach of contract, and intentional interference with economic relations.

The defendants brought motions for summary judgment to dismiss SIF's action and grant their respective counterclaims.

Jackson counterclaimed for indemnification under SIF's by-laws, while EPI and 242 counterclaimed for outstanding invoices, termination pay, expenses, and commissions.

The court dismissed SIF's claims, finding no genuine issue for trial regarding Jackson's alleged bad faith or breach of duty as an officer/director, nor any evidence of damages.

The court granted all defendants' counterclaims, confirming Jackson's right to indemnification, EPI's entitlement to unpaid fees and termination pay, and 242's right to outstanding commissions, rejecting SIF's arguments of waiver or technical non-compliance.

Costs were awarded to the defendants on a substantial indemnity basis due to the inflammatory nature of SIF's unproven allegations of intentional misconduct.

The Kilislian parties brought a motion for leave to vary a consent timetable to permit the late delivery of an expert damages report.

The court had previously ordered all expert reports by September 30, 2016, an order made on consent.

The Kilislian parties failed to deliver the damages report by the deadline, and their explanations for the delay were found to be contradictory and indicative of a conscious decision not to comply, rather than an error or inadvertent omission.

The court dismissed the motion, emphasizing that court orders, especially in case-managed proceedings, must be respected.

Costs were awarded to the responding Shuster parties on a substantial indemnity basis.

The plaintiff sought monetary relief based on unjust enrichment arising from a joint family venture with the defendant, David Brathwaite, and his corporations.

The court found that a joint family venture existed and the plaintiff's claim was not statute-barred due to ongoing reconciliation efforts.

However, the plaintiff failed to provide sufficient evidence to prove a disproportionate accumulation of wealth by the defendant linked to her contributions, or to quantify the alleged enrichment and deprivation.

Consequently, the plaintiff's claim for unjust enrichment was dismissed, as was the defendant's counterclaim.

In a family law trial following a 28-year marriage, the court determined the parties' respective incomes for the purposes of child and spousal support.

Both parties were self-employed and sought to impute additional income to the other.

The court imputed the applicant's income at $70,000 after disallowing several business expenses, and imputed the respondent's income at $22,500 due to unsubstantiated expenses and cash income.

The court ordered ongoing child support, retroactive child support subject to a $23,000 credit for the applicant, and ongoing non-compensatory spousal support of $250 per month, but declined to order retroactive spousal support.

The applicant sought costs of $87,150.00 on a partial to full indemnity basis following a trial where he was largely successful on primary issues of custody and decision-making.

The respondent argued for no costs due to divided success, coercive settlement offers, and financial hardship.

The court, applying the principles of indemnification, settlement encouragement, and discouraging inappropriate behaviour, found the applicant to be the more successful party.

While the applicant's offers were not coercive, full indemnity was not warranted as not all terms were achieved.

Considering the respondent's low income and the need for a tempered approach in custody/access cases to avoid discouraging bona fide claims, the court awarded the applicant costs on a partial indemnity basis in the all-inclusive amount of $15,000.00.

The parties disputed the listing price for a jointly owned property that had been listed for sale multiple times without success.

The plaintiffs sought a drastic price reduction to ensure a sale before the first mortgage matured, while the defendant opposed this to avoid signaling desperation and risking an improvident sale.

The court ordered incremental price reductions over a five-month period to balance the parties' concerns.

The applicant soccer clubs sought judicial review of decisions by the respondent soccer associations denying the transfer of three competitive youth soccer teams from a financially troubled club.

The court held a trial of an issue to determine if the respondents had promised the transfers would be approved, and also considered whether it had jurisdiction to review the decisions.

The court declined jurisdiction, finding the respondents were voluntary associations making operational policy decisions that did not prevent any individual from playing soccer, but merely affected team composition.

Furthermore, the court found on the evidence that the respondents never represented that the transfers would be approved.

The application was dismissed.

The applicant mother removed the parties' child from Poland to Canada and subsequently commenced a family proceeding in Ontario seeking a divorce and sole custody.

The respondent father brought a motion within the proceeding for the return of the child to Poland pursuant to the Hague Convention.

The mother argued that the father had consented to the child's relocation to Canada.

The court found that the written consent was ambiguous and did not establish a shared intention to change the child's habitual residence.

The court concluded that the child was wrongfully removed and ordered his return to Poland.

Following a successful motion for partition and sale of the matrimonial home, the applicant sought costs on a full indemnity basis.

The respondent, who was self-represented, opposed and sought her own costs.

The court found the applicant was the successful party and entitled to costs under Rule 24(1) of the Family Law Rules.

The court declined to award full indemnity costs, finding the respondent's conduct was not unreasonable and the applicant's offer to settle contained additional terms not granted in the order.

Costs were fixed on a partial indemnity basis at $5,000.

Following the dismissal of the applicant mother's motion to register the parties' child in the National Ballet School, the respondent father sought costs of $17,513 on a full indemnity basis.

The applicant argued for a no-costs award, citing her good faith and the respondent's failure to make an offer to settle or provide financial disclosure.

The court found that both parties acted in good faith and that the binary nature of the motion precluded a reasonable offer to settle.

The court awarded the respondent costs on a partial indemnity basis in the amount of $8,500.

The parties, who separated in 2012, engaged in a high-conflict custody dispute over their child.

Despite previously drafting a handwritten agreement for joint custody and shared parenting, the mother subsequently reneged and began making unilateral decisions regarding the child's health and education.

The court declined to order joint custody due to the parties' inability to communicate effectively.

The court implemented a shared parenting schedule based on the Office of the Children's Lawyer's recommendations and granted the father final decision-making authority over major issues, finding him better suited to foster the child's best interests.

Child support was also determined, and the father's request for a name change was dismissed due to insufficient evidence.

Following an order setting aside a default judgment, the court determined the costs thrown away payable to the plaintiff and the costs of the motion payable to the defendant.

The plaintiff was awarded $16,500 in costs thrown away on a substantial indemnity basis, after reductions for unrelated enforcement proceedings and a recoverable sheriff's fee.

The defendant was awarded $3,500 in costs for the motion on a partial indemnity basis, as the court found the defendant's settlement offer did not trigger Rule 49 consequences and success was somewhat divided.

The appellant, Pedro Alves, sought a stay of a custody and access order issued by Justice Spence, which granted sole custody of the parties' child, Miguel, to the respondent, Julia Quintana Londran.

The appellant argued that Justice Spence erred by reversing the status quo.

Applying the three-part test for a stay (serious issue, irreparable harm, balance of convenience), the court found that while the appeal raised a serious issue, the appellant failed to demonstrate irreparable harm to the child.

The court emphasized the child's need for stability and found no evidence that Miguel was suffering from the change in custody.

The balance of convenience also favored refusing the stay.

Consequently, the appellant's motion for a stay was dismissed, and the respondent was awarded costs of $3,000.00.

The applicant sought an order to permit her to register her child, Kalle, in the National Ballet School (NBS) for the 2016/2017 year.

The respondent opposed this motion, arguing that Kalle's weekend classes would interfere with his limited access time with both children.

The court considered the child's best interests and the "maximum contact principle" finding insufficient evidence that Kalle's participation in the NBS Associates Program, which is not the professional program, should override the respondent's access time.

The motion was dismissed.

This case conference endorsement addresses a plaintiff's extensive motion, which the defendants argued largely required leave under Rule 48.04(1) of the Rules of Civil Procedure.

The court, without ruling on the merits of the leave requirement, found the two-hour hearing allocation unrealistic for the motion as framed.

By consent, the scope of the plaintiff's motion was limited to specific paragraphs concerning particulars and outstanding undertakings, without prejudice to the remaining relief which may still require leave.

The court also noted the possibility of a future case conference before trial.

The defendants brought a motion for summary judgment to dismiss the plaintiff's subrogated property damage claim on the basis that it was commenced outside the two-year limitation period.

Following a mini-trial on the issue of the insurer's due diligence, the court found that the insurer had all the necessary material facts to support a claim in negligence well before the expiry of the limitation period.

The court rejected the insurer's argument that it was waiting for the Fire Marshal's report to discover the claim.

The defendants' motion was granted and the action was dismissed.