Joseph Kary

Following a summary judgment motion, the court had previously awarded substantial indemnity costs to the defendant.

After the costs endorsement was released, defence counsel disclosed that the defendant’s legal fees had been paid by his employer rather than personally.

The plaintiff argued that this new information warranted reconsideration of the costs award or reduction to partial indemnity.

The court held that the source of payment for the defendant’s legal expenses did not materially alter the reasoning underlying the substantial indemnity award, which was primarily based on the plaintiff’s litigation conduct.

The prior costs award therefore remained unchanged.

Following the granting of summary judgment dismissing the action, the successful defendant sought substantial indemnity costs.

The plaintiff opposed, arguing that the motion judge should not fix costs due to affidavit evidence, that elevated costs were unwarranted, and that costs should be limited to the summary judgment motion rather than the entire action.

The court rejected these submissions, holding that the judge retained discretion to fix costs and that summary judgment terminating the action justifies assessing costs of the entire proceeding.

The court found the litigation was aggressively pursued without evidentiary foundation and contained serious unfounded allegations affecting the defendant’s reputation.

Substantial indemnity costs were awarded.

A mother sought to transfer a child protection proceeding from Toronto to St. Lambert, Quebec, and alternatively to Cornwall or Ottawa, Ontario.

She also sought increased access to her child who was in the care of the Children's Aid Society.

The court found that it lacked jurisdiction to transfer the proceeding outside Ontario and that the mother failed to establish a preponderance of convenience for transfer within Ontario.

The court granted the mother increased access from two hours to three hours per week, with one hour potentially supervised by an approved third party, conditional on negative drug test results.

The Children's Aid Society brought a summary judgment motion seeking a finding that a child was in need of protection under clause 37(2)(b) of the Child and Family Services Act based on the mother's mental health issues, substance abuse, and domestic violence.

The father supported the motion while the mother opposed it.

The court granted the motion and found the child in need of protection, determining that the mother's combination of untreated mental health conditions, ongoing drug use during pregnancy and post-birth, and inability to protect herself from domestic violence created a real and likely risk of physical harm to the child.

The defendant brought a motion for summary judgment under Rule 20.01(3) seeking dismissal of a negligence and intentional infliction of emotional distress claim arising from alleged failures by a condominium security guard to notify a resident of delivered packages and from a subsequent lobby encounter.

The court held that the evidentiary record contained no credible evidence that the defendant acted wrongfully or that the plaintiff suffered any compensable loss.

The plaintiff failed to provide particulars or documentary support for alleged financial losses, investment opportunities, loan documents, or emotional distress.

Applying the summary judgment framework and emphasizing the obligation on a responding party to put its best evidence forward, the court found no genuine issue requiring a trial.

The appellant appealed an order striking his pleadings.

The motion judge had struck the pleadings due to the appellant's failure to pay a prior costs order, lack of diligence in providing financial disclosure, and failure to respond to the respondent's efforts to resolve the matter.

The Court of Appeal held that the motion judge properly exercised her discretion in refusing an adjournment and striking the pleadings.

The appeal was dismissed with costs.

A status review application for crown wardship of a three-year-old child.

The applicant child protection agency sought crown wardship without access for purposes of adoption.

The respondent mother opposed the application and sought return of the child to her care.

The court found the child continued to be in need of protection due to the mother's paranoid personality disorder, which was pervasive and enduring, contributing to her inability to provide adequate care and stability.

The mother's parenting was significantly impaired, characterized by inability to respond appropriately to the child's cues, inconsistent attendance at access visits, and failure to accept responsibility for her circumstances.

The court made an order for crown wardship with no access.

The appellant appealed an order terminating her membership and occupancy rights in a housing co-operative.

She argued there was a lack of procedural fairness before the Board and that the motions judge erred by applying a standard of patent unreasonableness.

The Divisional Court dismissed the appeal, finding no evidence of procedural unfairness and concluding that, despite misstating the standard of review, the motions judge had actually applied the correct reasonableness standard and properly found the Board's decision to be reasonable.

The appellants appealed a judgment granting an application to terminate their membership and occupancy rights in a co-operative and ordering a writ of possession.

The Divisional Court dismissed the appeal, finding that the application judge correctly applied the reasonableness standard to the co-operative board's eviction decision, which was justified by the appellants' arrears and history of late payments.

The court also found no denial of procedural fairness and upheld the application judge's exercise of discretion in granting the writ of possession.

The applicant filed a human rights complaint against his landlord, Ecuhome Corporation, alleging discrimination.

He subsequently filed applications with the Landlord and Tenant Board (LTB).

At the LTB hearing, the applicant undertook to withdraw his human rights complaint in order for the LTB to assume jurisdiction over his applications and resolve a preliminary objection regarding duplicative proceedings.

The applicant later resiled from this undertaking without notifying the LTB and sought to proceed with his human rights application before the Tribunal.

The Tribunal dismissed the application as an abuse of process, finding that the applicant had an obligation to inform the LTB that he was resiling from his undertaking.

The appellant appealed two orders from the Small Claims Court that dismissed his actions against the respondents and prohibited him from commencing further proceedings.

The orders were made by the Small Claims Court judge on her own initiative, without a motion, notice, or an opportunity for the appellant to be heard.

The Divisional Court allowed the appeal, finding that the Small Claims Court judge acted without jurisdiction and in breach of procedural fairness and natural justice.

The orders were set aside and costs were awarded to the appellant.

The tenant brought a motion to set aside the Registrar's dismissal of her appeal and a motion to stay her eviction and permit re-entry.

The landlord brought a motion to quash the appeal.

The court dismissed the tenant's motion to set aside the dismissal, noting that the eviction was lawful and the basement apartment she occupied was illegal under city bylaws.

The landlord had already removed the kitchen to comply with city requirements, making re-occupation impossible.

Consequently, the motion for a stay was dismissed as moot, and the landlord's motion to quash was withdrawn.

Costs were awarded to the landlord.

The appellant appealed a motions judge's decision terminating his membership and occupancy rights in a housing co-operative and ordering a writ of possession for arrears and persistent late payments.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness in the Board proceeding in his absence, as his failure to attend was deliberate.

The court also found no error in the motions judge ordering payment of a minimum admitted amount of arrears without determining the exact higher amount owed, and held it was not unfair to issue the writ of possession given the appellant's failure to pay any amount.

The appellants, a family with seven children living in subsidized co-operative housing, appealed an order terminating their membership and issuing a writ of possession due to late housing charge payments.

The application judge had declined to exercise his discretion to grant relief from eviction under s. 171.21 of the Co-operative Corporations Act, finding no 'change in circumstances' since the co-operative board's decision.

The Divisional Court allowed the appeal, holding that the application judge erred in principle by requiring a change in circumstances rather than considering all circumstances, including the devastating impact of eviction on the children.

The court granted relief from eviction subject to strict conditions for future payments.

The appellant tenant sought a stay of an eviction order pending an appeal.

A previous stay had been lifted by another judge due to the tenant's failure to pay rent on time, resulting in over $30,000 in arrears.

The Divisional Court dismissed the request for a stay, finding no jurisdiction to deal with the matter as there had been no material change in circumstances since the previous order.

In the alternative, the court held that a stay was not warranted on the merits, as the tenant failed to meet the test for a stay and the balance of convenience favoured the landlord.

The appellant appealed a decision declaring her membership and occupancy rights in a housing co-operative terminated and granting a writ of possession.

The co-operative had withdrawn her rent-geared-to-income subsidy because she failed to disclose her receipt of Ontario Works benefits since 2002.

The Divisional Court dismissed the appeal, finding the application judge correctly concluded the co-operative's decision was reasonable and procedurally fair.

The landlord brought a motion to extend the time for enforcement of an eviction order previously upheld by the Divisional Court.

The tenant had sought leave to appeal to the Court of Appeal and the Supreme Court of Canada, which the court characterized as frivolous and vexatious efforts to avoid enforcement.

The court rejected the tenant's allegations of bad faith against the landlord and granted the motion, ordering the tenancy terminated forthwith and a writ of possession to issue, enforceable on or after May 1, 2008.

The appellant housing co-operative appealed a judgment that declared the respondent's membership and occupancy rights terminated but stayed the enforcement of the eviction and arrears on certain conditions.

The respondent, who is disabled, had fallen into arrears after his income decreased and the co-operative froze subsidies.

The Divisional Court allowed the appeal, finding that the hearing judge erred in principle by effectively granting an indefinite and retroactive subsidy to the respondent, which was an unwarranted interference with the co-operative's democratic decision-making process and imposed an unfair financial burden on the other members.

The appellants, members of a housing co-operative, appealed a judgment terminating their occupancy rights and ordering payment of post-bankruptcy arrears.

They argued the judgment violated the Bankruptcy and Insolvency Act by identifying pre-bankruptcy arrears, and that they were denied procedural fairness when the application judge refused an adjournment.

The Divisional Court dismissed the appeal, finding the judgment did not violate the BIA as it explicitly stayed collection of pre-bankruptcy arrears, and the application judge properly exercised his discretion in refusing the adjournment given the mounting arrears and prejudice to the co-operative.

The appellant appealed an order terminating her spousal support.

The Court of Appeal found no error in the application judge's analysis of the factors under section 15 of the Divorce Act, noting the short duration of the marriage, the parties' respective assets, and the absence of children.

The appeal was dismissed with no costs.