J.L. Lee Mullowney

This appeal concerned the division of a residential property between former spouses following their divorce.

The respondent (original applicant) sought a sale of the property and 50% of proceeds, while the appellant (original respondent) cross-applied for a constructive trust due to disproportionate post-separation contributions.

The application judge ordered a sale and granted a constructive trust, apportioning the net proceeds 35% to the respondent and 65% to the appellant, considering factors like post-separation payments, sole occupancy, and credit risk.

The appellant sought a larger share, but the Court of Appeal dismissed the appeal, finding no error in principle in the application judge's discretionary apportionment of the constructive trust.

This motion concerned the appointment of a litigation guardian for Adam Montgomery Blair, the applicant, who was deemed mentally incapable due to a frontal lobe brain injury, seizures, schizophrenia, and memory deficit.

The court applied Rule 7 of the Rules of Civil Procedure and Section 6 of the Substitute Decisions Act, 1992, to determine if the applicant was a person under disability requiring a litigation guardian.

Based on medical evidence and a capacity assessment, the court concluded that the applicant lacked the capacity to instruct counsel and litigate.

As no other suitable person was willing or able to act, the Public Guardian and Trustee was appointed as the applicant's litigation guardian.

The Superior Court of Justice heard competing motions under Rule 7 of the Rules of Civil Procedure for the appointment of a litigation guardian for Joan Montgomery.

The court found Ms. Montgomery to be a person under disability due to mental incapacity, evidenced by long-standing paranoid delusions and an inability to understand the litigation process or instruct counsel.

Given that no other proper person was willing or able to act, the Public Guardian and Trustee was appointed as her litigation guardian for both consolidated proceedings.

A request for a sealing order regarding medical records was adjourned for further submissions, and allegations against Ms. Montgomery's counsel were adjourned sine die.

The Superior Court of Justice heard competing motions under Rule 7 of the Rules of Civil Procedure for the appointment of a litigation guardian for Joan Montgomery.

The court found Ms. Montgomery to be a person under disability due to mental incapacity, evidenced by long-standing paranoid delusions and an inability to understand the litigation process or instruct counsel.

Given that no other proper person was willing or able to act, the Public Guardian and Trustee was appointed as her litigation guardian for both consolidated proceedings.

A request for a sealing order regarding medical records was adjourned for further submissions, and allegations against Ms. Montgomery's counsel were adjourned sine die.

The respondents in an estate litigation matter brought a motion for directions seeking costs for an abandoned application to strike their notice of objection, and an order preventing the applicants from using estate funds to pay their litigation costs.

The court awarded the respondents partial indemnity costs for the abandoned application, finding that the applicants had accepted a Rule 49 offer after its deadline.

The court also ordered the applicants to reimburse the estate for legal fees already paid from it and prohibited further use of estate funds for litigation, interpreting the prior Order for Directions as not authorizing such disbursements and emphasizing the need to maintain a level playing field between the parties.

The plaintiff's lawyer brought a motion seeking an order declaring the plaintiff, Zeljko Milicevic, a "person under disability" within the meaning of the Rules of Civil Procedure and appointing the Public Guardian and Trustee as his litigation guardian.

The action stemmed from an incident in 2005 involving the Ottawa Police Service.

The court considered medical evidence, including psychiatrist reports detailing Mr. Milicevic's continuous delusional disorder, despite procedural deficiencies in how this expert evidence was presented.

Applying a liberal interpretation of the Rules, the court found Mr. Milicevic to be a person under disability due to his mental incapacity related to the proceeding and that no other suitable litigation guardian was available.

The motion was granted, and the Public Guardian and Trustee was appointed as litigation guardian.

This endorsement addresses the costs of a previously dismissed motion brought by Bruce Wallace, who sought a Certificate of Pending Litigation (CPL) or alternative security.

The motion was dismissed because Wallace failed to demonstrate a reasonable claim to the properties.

Stephen Campbell, Pamela F. Campbell, and Gryphon’s Head Properties Limited (the "Campbells") sought substantial indemnity costs, arguing the motion was meritless and should never have been brought.

Wallace argued for lower costs, citing financial difficulties and the potential future utility of the motion materials for the Campbells.

The court found that while there was no formal offer to settle, the extensive materials prepared by the Campbells should have prompted Wallace to reconsider his motion.

Despite a prior agreement between former counsel regarding the CPL, the court concluded that substantial indemnity costs were not appropriate.

However, given the extensive materials prepared by the Campbells, partial indemnity costs of $10,000 were awarded, payable by Wallace within 30 days, rejecting Wallace's financial hardship claim due to unaccounted funds.

The Plaintiff/Defendant by Counterclaim, Bruce Wallace, sought an order for a Certificate of Pending Litigation (CPL) on two properties or, alternatively, for $450,000 from property sale proceeds to be deposited with the Court.

Wallace claimed an interest in the properties based on misappropriation of corporate resources and a constructive trust.

The court found that Wallace did not demonstrate a reasonable claim to the properties, noting that one property was sold to the corporation for fair market value and the other was never owned by Wallace.

The court also considered the balance of factors for granting a CPL and found they did not favour Wallace, emphasizing that damages would be a satisfactory remedy.

The motion for a CPL and the alternative relief were dismissed, and the funds held in trust were ordered to be released to Gryphon’s Head Properties Limited.

The plaintiff brought a motion for summary judgment for $66,283.54 for contents and additional living expenses lost in a fire, pursuant to a renter's insurance policy.

The defendant insurer opposed the motion, arguing there were genuine issues of credibility and fact regarding the existence and value of the items claimed.

The court dismissed the plaintiff's motion, finding that contradictory evidence and credibility issues required a trial.

The court granted partial summary judgment to the defendant, dismissing the plaintiff's claim for additional living expenses as the plaintiff admitted to moving in with his parents and not incurring such expenses.

The appellant, aged 45 at trial, appealed a judgment dismissing her claim against her parents for alleged physical and emotional abuse during childhood.

The trial judge, after a 10-day trial with extensive evidence from multiple witnesses and experts, found the appellant's allegations not credible and dismissed the claim.

The appellant raised three grounds of appeal: that the trial judge failed to address the core issue of abuse, failed to provide adequate reasons, and misapprehended evidence.

The Court of Appeal dismissed all grounds, finding the trial judge properly assessed credibility, provided sufficient reasons for appellate review, and identified no palpable and overriding errors.

Following the settlement of an action to recover a loan used to purchase property, the plaintiff sought partial indemnity costs.

The action settled on the eve of trial for $125,000 plus costs.

The court found the plaintiff's counsel's hourly rates and time spent were reasonable, noting the defendant's lack of cooperation and the need for various procedural steps.

The court fixed the plaintiff's partial indemnity costs at $30,000 for fees plus $8,646 for disbursements.

Following a bifurcated civil trial in which the defendants were found not liable for historic abuse allegations and the plaintiff’s claim was dismissed, the court considered the defendants’ request for costs.

The defendants sought substantial indemnity costs of $145,000 arising from complex litigation involving extensive documentary disclosure and numerous expert reports.

The court reviewed the purposes of costs awards and the relevant factors under Rule 57 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, including the defendants’ settlement offers and the litigation’s complexity.

Applying the principles of reasonableness and fairness, the court declined to award the full amount requested but fixed costs in a substantial sum reflecting the defendants’ success and the burden of defending the allegations.

The plaintiff sued her parents alleging repeated physical and emotional abuse during her childhood, including blows to the head, emotional mistreatment, and a failure by the mother to protect her.

The trial was bifurcated under Rule 6.1 of the Rules of Civil Procedure to determine liability only.

The plaintiff relied primarily on her own testimony, limited third‑party affidavit evidence recounting statements she made in the past, and expert opinions interpreting her medical history and alleged trauma.

The defendants denied the allegations and presented evidence from themselves, their son, and police investigations indicating no corroboration of abuse.

The court found the defendants’ evidence more compelling and concluded that the plaintiff had not proven the alleged assaults, emotional harm, or breaches of fiduciary or protective duties on a balance of probabilities.