J. Paul R. Howard

The appellant physician in a medical malpractice action appealed a motion judge's decision denying leave to file late-served causation and damages expert reports under Rule 53.08.

The motion judge had applied a strict conjunctive test, finding no reasonable explanation for the delay despite acknowledging a lack of prejudice.

The Divisional Court allowed the appeal, holding that the motion judge erred by failing to apply a balanced approach that considers the overall interests of justice, as established in recent jurisprudence.

The Court found that the delay was not tactical, did not prejudice the respondents or delay the trial, and that denying leave would disproportionately prejudice the appellant's ability to defend the action on its merits.

Sentencing for possession of fentanyl for the purpose of trafficking following a guilty plea, where police seized 1,034.6 grams of fentanyl from the offender's person and residence.

The court treated denunciation and deterrence as paramount, emphasizing the deadly nature of fentanyl, the exceptional quantity involved, and the offender's high moral blameworthiness, while also giving weight to the guilty plea, acceptance of responsibility, traumatic background, and strong rehabilitative efforts in custody.

Relying on national and Ontario fentanyl sentencing authorities, the court concluded the offender's conduct exceeded mid-level trafficking but did not establish a sophisticated leadership role in a larger operation.

A sentence of 12-and-one-half years' imprisonment was imposed, less Summers and Duncan credit for pre-sentence custody, together with ancillary DNA, weapons prohibition, and forfeiture orders.

The defendants appealed a decision regarding the delivery of expert reports.

The Divisional Court allowed the appeal and granted the defendant leave to deliver the expert reports of Dr. Turcotte on causation and Professor Hyatt on damages.

Reasons for the decision were to follow.

As agreed by the parties, no costs were ordered.

The moving party brought a motion to review two previous orders.

The Divisional Court dismissed the motion as moot, without costs.

The moving party brought a motion for leave to appeal the decision of Trimble J. The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $2,500 to the responding party.

The moving party brought a motion under s. 21(5) of the Courts of Justice Act to review an order of a single judge quashing his motion to hold a Landlord and Tenant Board member in contempt.

The moving party argued the single judge lacked jurisdiction to quash the motion.

The Divisional Court held that the single judge had jurisdiction under Rule 2.1.01 of the Rules of Civil Procedure to dismiss the proceeding as frivolous, vexatious, and an abuse of process, noting that a finding of contempt against a Board member is precluded by adjudicative immunity.

Finding no error in the single judge's decision, the court dismissed the motion.

The plaintiff general contractor moved for summary judgment to dismiss the defendant City's set-off defences.

The City's counterclaim had previously been permanently stayed due to an abuse of process for failing to disclose settlement agreements with third-party subtrades.

The City subsequently amended its defence to plead both legal and equitable set-off based on the same allegations.

The court granted the motion, finding that legal set-off was unavailable because the City's claims were for unliquidated damages rather than debts.

The court also dismissed the equitable set-off defence, holding that it would be manifestly unjust to allow the City to resurrect claims through a set-off defence that had been permanently stayed for abuse of process.

The applicant and respondent, two siblings, are engaged in contentious estate litigation over their late father's estate.

The applicant brought an application under Rule 14.05 seeking, among other things, declarations of resulting trust over a condominium, a RRIF, and a TFSA, and the removal of the respondent as Estate Trustee.

The respondent argued the application was essentially a motion for directions under Rule 75.06 and should be subject to a minimal evidentiary threshold.

The court held that the evidentiary threshold established in will challenge cases does not apply to a Rule 14.05 application that does not challenge the validity of the will.

The court directed the issues to proceed to trial as an action, but dismissed the applicant's premature requests for documentary production and an order prohibiting the respondent from using estate funds for litigation.

The applicant, a municipal councillor, sought judicial review of two decisions by the city council to suspend her pay for 30 and 60 days, respectively, based on reports from the Integrity Commissioner finding she breached the code of conduct.

The first breach involved a social media post targeting residents who opposed her minor variance application, and the second involved conduct promoting homophobic and transphobic attitudes.

The Divisional Court dismissed the applications, finding that the Integrity Commissioner performs an investigative rather than adjudicative function, and that the council's decisions to accept the Commissioner's reports and impose the recommended sanctions were reasonable.

The court also denied the applicant's motion to amend her application to allege bias against the mayor.

This costs endorsement addresses the allocation and quantum of costs following the dismissal of a motion for intervention by Gregory John Monforton, the former lawyer for the plaintiffs, in a complex civil action.

The court reviews the governing legal principles for costs in Ontario, including the discretion under the Courts of Justice Act and the Rules of Civil Procedure, and applies them to the facts.

The court finds that the three sets of responding parties—CP Rail, Andrew Williams, and the Corporation of the Town of Lakeshore—are each entitled to their own costs, rejects the argument that only one set of costs should be awarded, and reduces the amount claimed by CP Rail for preparation of its factum as excessive.

The court fixes costs in the amounts of $40,553.48 to CP Rail, $16,276.61 to Andrew Williams, and $20,110.95 to Lakeshore, all payable by the proposed intervenor.

The appellant construction manager appealed a motion judge's order reducing the amount of security posted by the respondent developer to vacate a construction lien.

The motion judge had reduced the security by the amount the developer paid directly to the appellant's subcontractors, finding these were valid payments under section 28 of the Construction Act.

The Divisional Court allowed the appeal, holding that the motion judge erred in law by interpreting section 28 to include payments to subcontractors who did not fall within the statutory definition of a 'person having a lien'.

The motion judge's order was set aside.

The appellant appealed an order reducing the amount of security the respondent was required to pay into court to vacate a construction lien.

The appellant argued the motion judge erred in law by providing deficient reasons that prevented meaningful appellate review.

The Divisional Court agreed, finding the motion judge's five-paragraph endorsement lacked sufficient explanation for reducing the security and failed to address the conflicting evidence regarding the contract price.

The appeal was allowed, the order was set aside, and the matter was remitted for redetermination by a different judge.

The appellant contractor appealed a trial decision awarding prejudgment interest at the Courts of Justice Act rate rather than the higher contractual rate.

The respondent homeowners cross-appealed the trial judge's award of damages for two change orders and the refusal to award damages for deficiencies covered by a Licence Appeal Tribunal (LAT) settlement.

The Divisional Court dismissed both the appeal and cross-appeal.

The court found the trial judge did not err in the interest award because the contractor had withdrawn its claim for the contractual rate at trial.

The court also upheld the trial judge's findings that the change orders were payable as extras and that the LAT had jurisdiction to enforce the settlement regarding deficiencies.

The moving party tenant sought to set aside two orders of Charney J. that lifted a stay of an eviction order and granted vacant possession to the landlords, and also sought an extension of time to appeal a Landlord and Tenant Board decision.

The Divisional Court dismissed the motion to set aside the orders, finding no error of law, fact, or breach of procedural fairness, and noting the premises had already been re-rented.

The court also denied the extension of time to appeal, citing obvious prejudice to the landlords and the tenant's failure to demonstrate any merit to the appeal.

Costs of $2,000 were awarded to the landlords.

The tenants appealed an order requiring them to pay $45,397.40 in rent arrears to the landlord.

They argued the Superior Court lacked jurisdiction and the matter should have been heard by the Landlord and Tenant Board, alleging the landlord artificially inflated the arrears by refusing rent to exceed the Board's monetary limit.

The Divisional Court dismissed the appeal, finding the application judge properly exercised jurisdiction under s. 207(2) of the Residential Tenancies Act, 2006, as the claim exceeded the Board's $35,000 limit, and there was no evidence the landlord improperly inflated the arrears.

The moving party, a self-represented tenant, appeared for a motion without having uploaded her materials to Case Center in advance.

She brought a considerable volume of printed material but no copies for the responding parties or the court.

To accommodate the moving party's agent, who had a hearing impairment, and to provide a fair opportunity to present arguments, the Divisional Court converted the oral motion to a hearing in writing and set a peremptory schedule for the delivery of electronic materials and written submissions.

The appellant father appealed a motion judge's order regarding retroactive and ongoing child support and section 7 expenses.

He argued the motion judge erred by refusing to hear his cross-motion for table support, finding one child was not a dependent while taking part-time virtual courses, and awarding costs based on bad faith.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the dependency finding and upholding the motion judge's exercise of discretion regarding the cross-motion.

The court also denied leave to appeal costs, noting the bad faith finding was justified by the father's failure to disclose income increases.

The appellant appealed a motion judge's order finding him in contempt of a final parenting order.

The motion judge had temporarily reduced the appellant's parenting time until he complied with the order, which the appellant argued was an impermissible variation.

The Divisional Court dismissed the appeal, finding that the motion judge had jurisdiction to make a temporary variation to facilitate compliance.

The court also upheld the contempt findings regarding unilateral medical decisions and withholding the children, and rejected the appellant's claims of procedural unfairness.

The defendants, Wildwood by the Lake Leaseholders Association and three individual board members, moved for summary dismissal of two actions brought by the plaintiff, a former board member.

The plaintiff alleged defamation arising from an investigation into her alteration of a job description document and subsequent reprimand.

The court dismissed the summary judgment motions, finding substantial factual disputes and witness credibility issues that require a trial.

The judge emphasized that the case was not suitable for summary judgment, particularly given the need for credibility assessments and the potential for the defence of qualified privilege to be defeated by malice or by exceeding the scope of the privilege.

The court also reiterated the Court of Appeal's caution against granting partial summary judgment.

The proposed intervenor, Keith Bannon, a former lawyer for the City of Windsor, sought leave under Rule 13.01 of the Rules of Civil Procedure to intervene as an added party in a pending motion.

This pending motion concerned the legal consequences of a prior decision that permanently stayed the City's counterclaim due to abuse of process related to undisclosed settlement agreements.

The court found that while Bannon might be adversely affected by the judgment due to potential professional negligence liability (satisfying Rule 13.01(1)(b)), his intervention would not offer a useful contribution and would cause undue delay and prejudice in what was an essentially private dispute.

The court emphasized that intervention in private lawsuits is granted "sparingly or rarely." Consequently, the motion for intervention was dismissed, and Bannon was ordered to pay costs to Southside Construction.