J. Clark

On a motion to vacate a construction lien, the moving party sought an order discharging the lien and vacating the related certificate of action on the basis that the lien was registered out of time under the Construction Act.

The court held the lien expired because it was filed on the 61st day after the last supply date pleaded, and also found the final cleanup and tool-removal activities were minor or trivial and did not extend lien rights.

The court declared the lien expired, ordered the lien and certificate vacated, and directed the matter to continue as an ordinary civil action under simplified procedure.

Leave was granted to amend pleadings to remove lien references, with procedural deadlines set.

Costs were fixed against the responding party.

Following conviction after trial for sexual assault and sexual exploitation of a young person by a person in a position of trust, the court imposed sentence.

Applying the Kienapple rule, the court conditionally stayed the sexual assault count because the same delict underlay both counts, while recognizing that the sexual exploitation count required additional proof of a trust relationship.

The court held that denunciation and deterrence were the primary sentencing objectives for sexual offences against children and rejected a conditional sentence despite significant mitigating features, including remorse, therapy, lack of criminal record, and community support.

A custodial sentence of 12 months followed by two years' probation was imposed, together with DNA, SOIRA, no-contact, and related ancillary orders.

The decision addresses two motions in an estate dispute: a motion by Julie Garneau for production of records from several non-parties under Rule 30.10 of the Rules of Civil Procedure, and a motion by Karen Joanne Garneau to strike Julie's Reply Affidavit.

The court struck the Reply Affidavit as improper reply evidence and dismissed the production motion as premature, finding that the parties had not yet exchanged affidavits of documents or conducted discoveries.

The court held that the requested records could be sought after the discovery phase if necessary, and that some records were subject to solicitor-client privilege.

The plaintiff, Lac Seul First Nation, sought a Norwich order compelling the Bank of Nova Scotia to provide information identifying individuals and corporations alleged to have defrauded the plaintiff.

The motion was brought on notice to the Bank, which took no position, and without notice to the other defendants.

The court found that the plaintiff had a bona fide claim and that the Bank was the only practicable source of the information.

The order was granted as the interests of justice and necessity were established.

The decision concerns a motion by the Estate Trustee, Chris Paju, to strike all or part of the respondent Jennifer Lindstrom’s objections to the Estate Accounts for the period March 16, 2022 to January 10, 2024.

The court found that many of Ms. Lindstrom’s objections were not responsive to the Second Accounts, repeated issues already addressed, or violated previous court orders.

The court ordered that non-compliant and irrelevant portions of Ms. Lindstrom’s objections be struck, and directed the moving party to file redacted objections.

Costs were awarded to the applicant, with directions for written submissions.

The applicant brought a motion for a certificate of pending litigation and a preservation order regarding a cottage property formerly owned by his deceased mother.

The applicant claimed the property was held in a secret trust for him by the respondent, his mother's surviving spouse.

The court found that the applicant established a triable issue regarding the existence of a secret trust and that the balance of convenience favoured granting the certificate of pending litigation.

The request for a preservation order was dismissed as unnecessary.

This decision addresses the costs arising from an unsuccessful challenge by the applicant to two purported codicils.

The respondent Estate sought substantial indemnity costs, citing the applicant's vexatious conduct, including prolonging the proceeding, refusing to produce evidence, and harassing the Estate and its counsel.

The court found the applicant's actions improper and vexatious, warranting costs on a substantial indemnity basis.

The Estate was awarded $67,214.45 in costs, with certain administrative and duplicative articling student fees disallowed from the Estate's bill of costs.

The defendant in an estate proceeding brought a motion to find the self-represented plaintiff in contempt of a prior court order.

The prior order prohibited the plaintiff from threatening criminal proceedings against the defendant or witnesses in exchange for monetary settlement.

The plaintiff subsequently threatened to report the defendant to the CRA fraud informant program if he did not pay her a specified sum.

The court found that while the plaintiff's conduct violated the spirit of the order and could justify a contempt finding, it would instead adjourn the motion and issue a 'last chance' order warning that further threats could result in the dismissal of her proceeding or a formal contempt finding.

The plaintiff, LH North Ltd., brought a motion for assessment of damages against the defendant, Albert Building Industries Inc. O/A Betontec Precast Products, after the defendant withdrew its defence and was noted in default.

The dispute arose from a commercial contract for precast concrete products for a bridge rehabilitation project, where Betontec failed to provide CSA-approved materials as agreed, leading to breach of contract and negligent misrepresentation.

This caused significant delays and additional costs for LH North Ltd. The court found in favour of the plaintiff, awarding damages for the increased cost of replacement materials, standby costs, demobilization/remobilization, and MTO delay penalties, along with prejudgment interest and costs.

The plaintiff sought leave to file two additional affidavits, including one from a handwriting expert, in response to the defendants' motion for summary judgment.

The court granted the plaintiff's motion, finding that the proposed evidence was relevant, responded to matters raised during cross-examination, would not cause non-compensable prejudice, and that the plaintiff provided a reasonable explanation for the delay in filing.

The court applied the four-part test for admitting further affidavit evidence post-cross-examination under Rule 39.02(2) of the Rules of Civil Procedure.

This is an endorsement on costs following a decision where the applicant, Mary Maureen Marttunen, was awarded costs against the respondent, Raymond McDevitt.

The court had previously found Raymond McDevitt liable for misappropriating over $400,000 from a vulnerable elderly person to whom he owed a fiduciary duty.

The applicant requested costs on a substantial indemnity basis, totaling $27,543.23.

The respondent did not submit any materials regarding costs.

The court agreed with the applicant's submission, finding the matter complex and the respondent's conduct egregious, justifying substantial indemnity costs.

Raymond McDevitt, acting as power of attorney for his 93-year-old mother Helen, was found to have misappropriated over $443,000 from her joint bank accounts.

The applicant, Mary Maureen Marttunen, also a joint power of attorney, sought an order for Raymond to pass accounts and for declarations of breach of trust and fiduciary duty.

The court found that Raymond failed to rebut the presumption of resulting trust, acted in breach of trust and fiduciary duty by taking funds for his personal benefit without consent, and ordered him to repay the misappropriated amount.

Raymond was removed as power of attorney for property and personal care, and Mary Maureen Marttunen was declared the sole attorney.

This application concerned a creditor's attempt to set aside a property transfer from a bankrupt debtor to his spouse as a 'transfer at undervalue' under the Bankruptcy and Insolvency Act (BIA).

The court found that the debtor's half-interest in the property was transferred for nil consideration, that the spouses were not dealing at arm's length, and that the transfer occurred within the five-year period preceding bankruptcy.

Crucially, the court determined that the transfer rendered the debtor insolvent by divesting him of his most valuable asset.

Consequently, the court declared the transfer void against the trustee, making the property available for distribution to creditors.

The defendant was wholly successful on a motion requiring the plaintiff to post security for costs and sought partial indemnity costs of $14,518.73.

The plaintiff argued for $5,000 to $6,000 but filed its bill of costs late, which the court declined to consider.

The court disallowed time claimed for legal assistants but noted the plaintiff had filed voluminous unnecessary materials, justifying the defendant's time spent reviewing them.

The court fixed costs payable by the plaintiff to the defendant at $10,000 inclusive of HST and disbursements.

Following a trial of issues arising from an oppression remedy application, the applicant was awarded $459,200 for its shares in the respondent corporation.

The applicant sought costs, relying on an offer to settle for $350,000 that was not accepted by the respondents.

The court found the applicant beat its own offer and was entitled to partial indemnity costs up to the offer date and substantial indemnity costs thereafter.

The court fixed total costs at $77,000, reducing the claimed amount to reflect proportionality and the unnecessary duplication of legal work.

The applicant, a medical cosmetic care business operated by a registered nurse, sought a declaration that it was exempt from COVID-19 shutdown regulations because it provided health care services.

The Thunder Bay District Health Unit had directed the business to close on the basis that it provided personal care services.

The Superior Court of Justice dismissed the application, applying principles of statutory interpretation to find that the applicant's services were aesthetic and cosmetic in nature, not medical.

The court held that the business did not share the common features of health care clinics and was therefore subject to the mandatory closure of personal care services under the shutdown regulations.

In a trial of issues following an oppression application where no oppression was found, the court determined the value of the applicants' minority shareholding in a closely held corporation.

The court rejected the respondent's argument that the shares were subject to an oral earn-out agreement, finding the applicant owned 20 common shares.

Relying on the jointly retained expert's valuation, the court valued the company at $2,870,000.

Because there was no finding of oppression, the court applied a 20% minority discount, valuing the applicants' shares at $459,200, and ordered the respondent corporation to purchase them.

The Tenant (Bryfam Enterprises Inc.) brought an application seeking a declaration that its use of the premises was permitted under the lease.

The Landlord (Harbour Carrick Holdings Inc.) responded with a cross-application for a declaration that the Tenant was in breach of the permitted use clause and for an order terminating the lease.

The court found the Permitted Use Clause unambiguous and that the Tenant's expanded menu items (wraps, salads, soups) were not permitted or ancillary to the principal business of a quick service yogurt, smoothie, and waffle restaurant.

The Tenant's arguments of waiver and proprietary estoppel were rejected due to insufficient evidence of the Landlord's knowledge of the breach.

The lease was ordered terminated effective December 31, 2018.

The applicant owns two adjacent lots used for aggregate extraction.

The Planning Board took the position that one of the lots was zoned Rural, prohibiting extraction.

The applicant applied for a declaration under the Aggregate Resources Act that no zoning by-law prohibits the operation of pits and quarries on the lot, arguing it had a legal non-conforming use.

The court found that the lot had been used continuously for aggregate extraction since 1952, prior to the zoning by-law, and that the use had not been abandoned or intensified.

The court granted the declaration, confirming the legal non-conforming use.

The applicants, Greg Guthrie and Delon Griffith, sought an order for severance of charges in a multi-count indictment related to cocaine importation and conspiracy.

Guthrie applied to be tried separately on counts one and four from counts two and three, while Griffith sought to sever counts two and three from counts one and four.

The court considered the legal and factual nexus between the counts, the applicants' intention to testify on some counts but not others, and potential prejudice.

The court found a sufficient factual and legal nexus, concluding that the Crown's theory of an ongoing enterprise was reasonable.

It dismissed concerns about testimonial intention and prejudice, emphasizing that a properly instructed jury could consider each count separately.

Both severance applications were dismissed.