Joseph J. Neal

The plaintiffs, John Snow and Sherry Snow, brought motions to consolidate two related actions and to validate service of the statement of claim and motion materials on the defendants.

The court granted both motions, finding that service by email should be validated given the defendants' actual notice of the claim, and that consolidation was appropriate as both actions arose from the same share purchase agreement and related promissory note.

The court also set a timetable for the consolidated action and addressed the process for amending pleadings and exchanging costs submissions.

The appellant estate trustee appealed a decision directing payment to the respondent for expenses paid on behalf of the deceased's estate.

The appellant argued the claim was barred by s. 38(3) of the Trustee Act and the Limitations Act, 2002.

The Divisional Court dismissed the appeal, finding that s. 38(3) applies to wrongs committed by the deceased, not ordinary estate debts.

The Court also held that the limitation period for reimbursement did not begin to run until the respondent made a claim to the appointed trustee and the trustee refused to pay.

The plaintiffs brought a motion for summary judgment seeking damages for the defendants' breach of an agreement of purchase and sale for a residential property.

The defendants failed to close the transaction, requesting an extension on the closing date due to a mortgage appraisal requirement, despite having removed the financing condition from their initial offer.

The court found no obligation on the plaintiffs to grant the extension and dismissed the defendants' defence of failure to mitigate damages, as the defendants provided no evidence to support their claim that the plaintiffs acted unreasonably in re-listing and selling the property at a lower price.

Summary judgment was granted in favour of the plaintiffs for the difference in sale price and other consequential damages.

Following an appeal, the court issued a costs endorsement.

The respondent on appeal was awarded partial indemnity costs in the amount of $10,000 inclusive of disbursements and applicable taxes.

The appellant appealed the trial judge's orders regarding prospective and retroactive spousal and child support, as well as the trial costs award.

The trial judge had imputed income to the respondent due to income fluctuations and denied retroactive support because the appellant's bankruptcy had relieved her of the tax debt that caused her financial hardship.

The Court of Appeal applied a deferential standard of review, finding no material error or serious misapprehension of the evidence by the trial judge.

The appeal was dismissed.

The applicant estate trustee sought to prove the deceased's 2014 Will in solemn form after the attesting witnesses refused to swear an affidavit of execution.

The witnesses, who were subpoenaed to testify, acknowledged their signatures but claimed they had no recollection of witnessing the deceased sign the document.

The court applied the presumption of due execution, finding that the Will was valid on its face and that the witnesses' lack of memory did not rebut the presumption.

The Will was proven in solemn form and costs were ordered payable from the estate on a complete indemnity basis.

The moving party, an 81-year-old man, brought a motion to transfer an application regarding his capacity and powers of attorney from Oshawa to Windsor.

The court considered the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure, noting that the moving party resides in Windsor, the capacity assessments occurred there, and a related application was already commenced in Windsor.

Given the moving party's age, health, and the location of witnesses, the court found it in the interests of justice to transfer the proceeding to Windsor.

This divorce proceeding addressed the applicant wife's claims for ongoing and retroactive spousal and child support, and a post-separation accounting, as well as the respondent husband's request for termination or reduction of spousal support and credit for overpayments.

The court granted the divorce, imputed income to both parties, and ordered the husband to pay ongoing spousal support of $6,500 per month, a reduction from the temporary order of $8,500.

All claims for retroactive spousal and child support by both parties were dismissed.

The wife's claims against the added respondent (husband's common-law partner) were also dismissed.

The husband was ordered to maintain health insurance for the wife and designate her as an irrevocable beneficiary on a life insurance policy.

The appellant challenged the validity of two wills executed by her deceased husband on the grounds that he lacked testamentary capacity due to chronic alcoholism.

The trial judge dismissed the claim, finding that the testator possessed testamentary capacity and knew and approved of the contents of his wills.

On appeal, the appellant argued that the trial judge erred in excluding expert evidence and in finding that the testator had capacity.

The Court of Appeal upheld the trial judge's decision, finding no palpable or overriding error.

The court held that the trial judge properly exercised her discretion as gatekeeper in excluding the expert evidence, which had become increasingly tentative and speculative.

The court also found that the trial judge properly applied the framework for assessing will validity, including the displaced presumption triggered by suspicious circumstances relating to the testator's mental capacity.

The plaintiffs, Kevin Patrick O’Hare and Karen O’Hare, brought a motion for summary judgment against Christopher William Wyton for breach of an Agreement of Purchase and Sale (APS) for a residential property.

Wyton failed to close the transaction, leading the O'Hares to resell the property at a lower price and incur additional carrying costs.

Wyton argued that the closing date was extended by the O'Hares' agent and that the O'Hares failed to reasonably mitigate their damages.

The court found that the closing date was not extended as per the APS's requirement for a written agreement, and that the O'Hares took reasonable steps to mitigate their losses.

Summary judgment was granted in favour of the O'Hares for damages totaling $56,861.90, less an $8,000 deposit.

The appellant appealed from a motion judge's order dismissing its motion for leave to amend the statement of claim to add a lawyer as a party defendant.

The motion judge found that the claim could not succeed on the merits and was statute-barred.

The Court of Appeal upheld the dismissal on the basis that the claim was statute-barred, as the appellant had discovered or should have discovered its potential claim by 2014, more than two years before the motion to amend was brought in October 2016.

The applicant wife and respondent husband have been litigating their family law matter for over 12 years.

The applicant brought a motion seeking extensive disclosure from the husband and his business partner, $150,000 in interim disbursements under Rule 24(12), and payment of past support and section 7 expenses.

The respondent husband brought a cross-motion seeking disclosure, termination of child support for their 24-year-old daughter, and a variation of a 2008 temporary spousal support order to impute income to the applicant.

The court dismissed the applicant's motion in its entirety, finding she failed to meet the test for interim disbursements and that the disclosure requests were either already satisfied or unsupported by evidence.

The court granted the husband's request to terminate child support as the child was no longer living with either parent and was employed.

The court also ordered the applicant to provide disclosure.

However, the court declined to vary the temporary spousal support order on the eve of trial, directing the parties to proceed to trial in 2018.

The plaintiff brought a motion for leave to amend its statement of claim to add a lawyer as a defendant, alleging the lawyer acted for it in a 2007 co-ownership conversion transaction and breached his duties.

The lawyer and the mortgagee he represented opposed the motion.

The court dismissed the motion, finding the proposed claim was legally untenable because the lawyer solely represented the mortgagee and owed no duty of care to the plaintiff.

Furthermore, the claim was statute-barred under the Limitations Act, 2002, as the plaintiff had imputed knowledge of the potential claim in 2007 and actual knowledge by June 2014, well beyond the two-year limitation period.

The appellant appealed a summary judgment order dismissing its claim for breach of a non-competition covenant.

The appellant alleged the respondent, as a director of a holding company, supplied a refrigerated truck to a competitor for free.

The motion judge found evidence that rental payments were being made for the truck, which permitted the rejection of the appellant's claim.

The Court of Appeal found no error and dismissed the appeal.

The defendant moved for summary judgment dismissing a claim arising from a share purchase agreement in which the plaintiff withheld escrow funds alleging breach of a non‑competition covenant.

The plaintiff asserted that the defendant assisted a competitor by facilitating access to a refrigerated trailer through related entities, thereby providing a competitive “springboard.” The court found the plaintiff’s escrow payment request failed to comply with the contractual notice requirements and, more importantly, that the evidentiary record did not establish that the defendant affirmatively assisted or induced any competitive business in breach of the covenant.

The trailer was owned and leased by a separate corporation and was not unique or provided without compensation.

The court concluded there was no genuine issue requiring a trial and that summary judgment was appropriate.