Jamie K. Trimble

On a motion arising from a long-delayed civil action alleging employee misappropriation and a counterclaim alleging wrongful dismissal and defamation, the court dismissed the plaintiff corporation's main action and struck the reply and defence to counterclaim for delay.

Applying the Rule 24 delay-dismissal framework, the court found inexcusable delay and non-compensable prejudice because critical banking and patient records had likely been destroyed under document retention policies and witness memory had faded.

The court refused to dismiss the counterclaim against the individual defendant to counterclaim personally, but granted leave for him to act for the corporate party.

The balance of the responding parties' motion, including restoration to the trial list, was dismissed.

In a highly contentious family proceeding involving an adult child with significant disabilities, the court addressed whether the motion judge should recuse himself for reasonable apprehension of bias and whether he should assume case management of the file.

Applying the governing bias authorities, the court held that vague complaints about comments in procedural teleconferences and court appearances did not overcome the strong presumption of judicial impartiality.

The court further held that it had inherent jurisdiction, reinforced by the Family Law Rules, to appoint itself as Case Management Judge in order to control an increasingly unmanageable and disproportionately expensive process.

The recusal request was dismissed, case management was imposed, and procedural directions were issued respecting outstanding issues, costs submissions, and interim restrictions on the child's travel documents.

The homeowners brought a motion to discharge a construction lien registered against their property, arguing the lien was no longer valid because the action had remained idle after being set down for trial, the lien claimant corporation had been dissolved, and the homeowners acquired rights during the period of dissolution.

The court held that the lien remained perfected under s. 37(1)2 of the Construction Lien Act because the action had been properly set down for trial within the statutory period, and strict compliance with the statute was sufficient.

The temporary dissolution of the lien claimant corporation did not render the lien a nullity because revival under the Business Corporations Act operates nunc pro tunc, subject only to substantive rights acquired during dissolution.

The court also rejected the homeowners’ claim that procedural rights arising under the Rules of Civil Procedure during dissolution superseded the lien.

The request for security for costs was denied due to lack of evidentiary support and delay.

In a high-conflict family law proceeding, the moving party sought an order striking the other party’s pleading or alternatively requiring security for costs due to failure to pay a prior costs award of $29,249.30.

The court reviewed the litigation history, including repeated breaches of court orders and findings of bad faith conduct by the responding party.

The responding party asserted inability to pay but failed to disclose recent financial receipts and withdrawals.

The court found the financial disclosure misleading and emphasized the importance of enforcing costs orders to deter abusive litigation conduct.

The responding party was barred from taking further steps in the proceeding until the outstanding costs order and accrued interest were paid.

The husband brought a motion seeking increased access to the children and the sale of the matrimonial home.

The wife sought exclusive possession of the home and interim child and spousal support based on imputed income.

The court ordered the matrimonial home sold, finding that maintaining the property was economically unsustainable regardless of the husband’s income and that the wife failed to establish a compelling reason to prevent sale.

Interim spousal and child support were ordered based on an imputed income of $60,000 for the self‑employed husband, and structured access was granted with exchanges occurring at a police station due to bail conditions arising from pending assault charges.

The parties achieved mixed success and no costs were ordered.

The parties separated and the mother relocated to Stoney Creek for employment, seeking to move the children to Milton.

Both parents brought motions for interim custody and primary residence.

The court applied the test for interim mobility, finding the mother failed to establish compelling reasons that moving the children from their established community, schools, and routines in Port Elgin was in their best interests.

The court ordered interim joint custody with the children's primary residence to be with the father in Port Elgin, and granted the mother liberal access.

A bank brought a motion for summary judgment against a corporate borrower and its principal guarantor following default on two loans and a corporate credit card account.

The guarantor alleged that bank representatives had represented that liability would be limited to approximately ten percent of the loan amounts because the loans were insured under the Canadian Agricultural Loans Act scheme.

The court held that the written guarantees contained clear “no representations” clauses preventing reliance on alleged oral assurances and that the responding party failed to put forward evidence establishing a genuine issue requiring trial.

Applying the summary judgment framework from Hryniak v. Mauldin, the court concluded that the record permitted a fair and just determination without trial.

Summary judgment was granted enforcing the guarantees and outstanding indebtedness.

Cross-applications sought interpretation of a right of first refusal clause in a commercial lease.

The tenant argued the right crystallized into an option to purchase once the landlord received an offer and could not be defeated by termination of the lease.

The landlord contended the clause was expressly limited by a lease provision allowing termination upon receipt of an agreement of purchase and sale.

The court held the right of first refusal was expressly subject to the termination mechanism in the lease.

The landlord’s notice of termination under the relevant clause validly ended both the tenancy and the right of first refusal.

The purchaser sought partial summary judgment declaring an agreement of purchase and sale for residential property enforceable and claiming damages for breach when the vendors refused to close.

The vendors argued the agreement should be rectified to reflect that the sale was conditional on the simultaneous purchase of an adjacent property and further argued the purchaser failed to provide notice of waiver of conditions in accordance with the contract.

The court held that the vendors failed to meet the demanding test for rectification based on unilateral mistake because there was no convincing proof of a prior precise oral agreement and no conduct equivalent to fraud by the purchaser.

However, the purchaser’s waiver of conditions was ineffective because the agreement required personal service of notice and the contract’s entire‑agreement clause precluded waiver by conduct.

As a result, the agreement was never completed according to its terms and could not be enforced.

The defendants, a dentist and an oral surgeon, brought a motion for summary judgment to dismiss the plaintiff's action for dental malpractice and battery.

The plaintiff alleged that the defendants extracted the wrong tooth.

The court found that the case turned heavily on the credibility of the parties, particularly the plaintiff, and that the documentary record alone was insufficient to resolve the factual disputes.

Applying the principles from Hryniak v. Mauldin, the court concluded that a full trial was not necessary but that oral evidence was required.

The court ordered an abbreviated summary trial under Rule 20.05 to determine the specific factual disputes and damages.

The defendants brought a motion for summary judgment to dismiss the plaintiff's medical malpractice action on the basis that it was statute-barred.

The plaintiff underwent jaw surgery in 2001 and experienced ongoing complications, but did not commence the action until 2008.

The plaintiff argued the claim was not discovered until she received an expert opinion in 2006.

The court applied the discoverability principles and found that the plaintiff knew or ought to have known the material facts to found a cause of action by August 2003 at the latest.

Consequently, the action was commenced beyond the applicable limitation period and was dismissed.

The plaintiff sought repayment of $57,843.87 advanced to the defendant corporation following the collapse of a purported foreign investment scheme.

The defendants asserted that the payment represented the purchase of a portion of their investment interest and counterclaimed alleging that the plaintiff and another individual acted as agents of the investment promoter.

The court conducted a detailed credibility assessment of the witnesses and concluded that the advance constituted a loan to the corporate defendant rather than an investment purchase.

Judgment was granted against the corporation for $65,000 pursuant to the loan terms, while claims against the individual defendants were dismissed.

The counterclaim alleging agency and breach of the foreign investment arrangement was dismissed for failure to prove agency, contract, or damages.

The plaintiff brought a motion to set aside an earlier order dismissing the action for delay under the Rules of Civil Procedure.

The court considered whether it had jurisdiction to set aside the order and whether the plaintiff satisfied the criteria for setting aside a dismissal under the Reid v. Dow Corning Corp. and Scaini v. Prochnicki framework.

The court found the plaintiff failed to adequately explain extensive litigation delay, failed to show inadvertence in missing procedural steps, and failed to bring the motion promptly after learning of the dismissal.

The court also found actual prejudice to the defendant due to the passage of time and potential loss of relevant records.

Applying a contextual approach to the Reid/Scaini test, the court concluded the interests of justice did not justify setting aside the dismissal.