Elizabeth M. Stewart

The applicant sought judicial review of a Small Claims Court interlocutory order setting aside a default judgment, alleging breaches of procedural fairness due to the Deputy Judge's failure to hear oral submissions and provide adequate reasons.

The Divisional Court dismissed the application, finding that the applicant had notice and an opportunity to respond in writing, and that the inadequacy of reasons does not constitute a breach of procedural fairness.

The court concluded that the application was essentially a disguised appeal of an interlocutory order, for which no right of appeal exists.

The appellant appealed an interlocutory order consolidating her Superior Court action with the respondent's Small Claims Court action (which had been transferred to the Superior Court) and awarding costs.

The Divisional Court found that the motion judge correctly ordered consolidation because the two franchise dispute actions dealt in substance with the same set of issues.

As leave to appeal the costs award had not been granted, the appeal was dismissed.

The appellant appealed a trial decision ordering it to pay damages and costs arising from a construction contract dispute.

The Divisional Court upheld the trial judge's findings that the appellant was responsible for soffit and dropped ceiling work, finding no palpable and overriding error.

However, the court allowed the appeal regarding roof drainage repairs, finding the trial judge's factual findings did not support holding the appellant 50% responsible.

The court also reduced the trial costs award, finding the trial judge erred in principle by awarding a premium over partial indemnity costs.

The applicant bank sought leave to appeal an interlocutory order awarding $30,000 in costs to the respondent Crown.

The costs were awarded after the Crown responded to an application involving a dissolved corporation and a void property transfer.

The Divisional Court dismissed the motion for leave to appeal, finding that the motion judge's discretionary costs award did not meet the strict test for leave under Rule 62.02(4), as there was no conflicting decision, no reason to doubt the correctness of the order, and no matter of general importance.

The respondent landlord brought a motion to lift the automatic stay of a Landlord and Tenant Board eviction order pending appeal, or alternatively for an order requiring the appellant tenant to pay rent arrears and ongoing rent.

The tenant had not paid rent since the LTB order but expressed willingness to pay the arrears into court.

The Divisional Court declined to lift the stay but ordered the tenant to pay the LTB order amount, accumulated arrears, and ongoing monthly rent into court pursuant to section 134(2) of the Courts of Justice Act.

The court also imposed a strict timetable for the tenant to perfect the appeal, failing which the appeal would be dismissed and the stay lifted.

Following trial and supplementary reasons in a partnership dispute, the court determined costs and interest.

Although the plaintiffs did not succeed on every issue, including dissolution and goodwill valuation, they obtained damages and successfully defended the counterclaim, and were therefore entitled to costs.

Applying Rule 57.01(1) and proportionality, the court fixed costs at $200,000 inclusive of disbursements and taxes on a partial indemnity basis.

The court also ordered interest under s. 127(1) of the Courts of Justice Act at 4.3% from the departure date for the portion of the judgment reflecting the amount owing on departure, with exceptions for NRF payments and capital payout timing.

The plaintiff brought an action against the LCBO for damages in conversion after his credit card was used without authorization to purchase approximately $37,000 worth of alcohol for a nightclub.

The plaintiff failed to notify his credit card company of the unauthorized charges within the required 30-day period.

The court dismissed the action, finding that the LCBO did not commit the tort of conversion as it merely processed the orders and delivered the goods in the normal course of business without any wrongful act or intent to negate the plaintiff's title.

The court noted that had the action been framed in negligence, the plaintiff would have been found wholly responsible for his losses due to his failure to monitor his credit card statements.

The plaintiff brought a summary judgment motion challenging s. 6 of the Indian Act and the Registrar’s Proof of Paternity Policy under s. 15 of the Charter after being denied Indian status registration because her paternal grandfather was unknown and unknowable.

She alleged discrimination based on race, gender, illegitimacy, and family or marital status.

The court held that all applicants bear the same onus to prove entitlement to registration and that unknowable paternity is not an analogous ground under s. 15.

No Charter infringement was established, so the constitutional claim failed, although the court expressed concern in obiter that the policy’s evidentiary demands may not be fully consistent with the Act’s purpose and history.

The self-represented plaintiff sought damages for injuries allegedly sustained in a rear-end motor vehicle collision.

Liability for the collision was admitted, but the defendant contested damages, causation, and whether the claim met the statutory threshold under the Insurance Act.

The court found no credible medical opinion supporting any serious or permanent injury caused by the collision, accepted that at most the plaintiff suffered an initial soft-tissue injury that resolved quickly, and found no credible proof of income loss or out-of-pocket expense.

The action was dismissed.

This was a costs decision following an earlier motion in a family law proceeding.

The court held that the respondent achieved primary success on the motion and was entitled to costs.

Taking into account the parties' submissions, proportionality, and the reasonable expectations of the parties, the court fixed costs at $2,750 inclusive of disbursements and applicable taxes, payable within 60 days.

This was a costs endorsement following an earlier motion in which the defendant obtained alternative relief by way of a stay.

Both sides sought partial indemnity costs.

The court held the moving defendant was basically the successful party and that costs should follow the event.

Applying proportionality and the parties' reasonable expectations, the court fixed costs at $7,500 inclusive of disbursements and taxes, payable within 60 days.

In a civil contempt sentencing arising from repeated breaches of an order prohibiting unauthorized chiropractic practice, the court held that denunciation, deterrence, public protection, and proportionality required a serious sanction.

Although the respondent had taken some late steps to purge the contempt and raised caregiving and health concerns, the court found that a suspended disposition would be wholly inadequate given the prolonged and defiant misconduct.

A six-month conditional sentence with house arrest, community service, strict compliance terms, and monitoring provisions was imposed.

The court also ordered sequestration of the respondent's office and equipment and awarded substantial indemnity costs.

The moving defendant sought summary judgment dismissing a motor vehicle personal injury action as statute-barred under the Limitations Act, 2002.

The court held that discoverability could not be fairly determined on the paper record because the issue was intertwined with the plaintiff's actual pain, dysfunction, medical advice, and when a reasonable person would have known a tort action was an appropriate means to seek a remedy.

Applying the summary judgment framework and discoverability principles in the motor vehicle threshold context, the court found a genuine issue requiring a trial.

The motion was therefore dismissed.

The moving party sought to oppose confirmation of a master's reference report in a construction lien matter arising from residential renovation work.

The court applied the deferential standard governing motions to oppose confirmation, requiring demonstrated error in principle, jurisdictional defect, patent misapprehension of the evidence, or an award unsatisfactory on the whole record.

The court found the master's reasons careful, detailed, and thorough, with no misapprehension of evidence or unfairness.

The motion was dismissed and the reference report was confirmed.

Following a Rule 21 motion where the defendants successfully struck the plaintiff's pleading but the plaintiff was granted leave to amend, the parties made written submissions on costs.

The defendants sought to defer costs, while the plaintiff sought costs based on a pre-motion offer to settle that proposed an amended pleading and a no-costs or costs-in-the-cause disposition.

The court noted the defendants' basic but divided success and the plaintiff's reasonable settlement offer, ultimately ordering that the costs of the motion be in the cause.

The plaintiffs purchased a vehicle from a dealership that had obtained it via a dealer trade from the moving defendants.

After discovering a defect in the vehicle's air conditioning, the plaintiffs sued multiple parties.

Having settled with the manufacturer and the selling dealership, the plaintiffs continued their action against the trading dealership and its president.

The moving defendants brought a motion for summary judgment.

The court granted the motion and dismissed the action, finding no contract, no evidence of negligence or bad faith, and no factual foundation for personal liability against the president.

Following the dismissal of the plaintiff's defamation action after a seven-day trial, the defendants sought costs of approximately $88,000, arguing for substantial indemnity costs from the date of their Rule 49 offer to settle.

The plaintiff argued no costs should be awarded.

The court found the Rule 49 offer defective as it did not specify costs, rejecting the claim for substantial indemnity.

Applying principles of proportionality, the court awarded the defendants costs fixed at $40,000 inclusive of disbursements and taxes.

The plaintiff brought a motion for summary judgment against the individual defendant for repayment of a USD$1 million loan and over $400,000 in interest.

The funds had been advanced to a corporate entity controlled by the defendant, who failed to account for them.

Applying the Hryniak framework, the court found no genuine issue requiring a trial regarding the principal amount, as the defendant provided no credible explanation for the missing funds.

However, the court found a trial was necessary to determine if the defendant was personally liable for the contractual interest rate.

On a summary judgment motion in a dental negligence action, the court held that conflicting expert opinions on standard of care and causation raised a genuine issue requiring a trial as against one dentist.

The plaintiffs had adduced expert evidence criticizing the decision to replace four restorations at one appointment, while the moving party relied on competing expert evidence supporting the treatment as within acceptable clinical judgment.

The court declined to resolve that evidentiary conflict on the motion and found a fair and just adjudication required viva voce expert evidence at trial.

However, the court granted summary judgment dismissing the claim against the other dentist, finding the record established only an independent contractor relationship and no basis for vicarious liability.

The defendant moved for summary judgment dismissing the action as statute-barred under the Limitations Act, 2002.

The plaintiff alleged an agreement to purchase shares through funds advanced in 2004 and 2005, and relied on subsequent promises of repayment and share substitution, including a 2010 recorded conversation, to argue acknowledgement of indebtedness and promissory estoppel.

Applying the summary judgment framework, the court held the limitation defence, the start date of any limitation period, and the availability of promissory estoppel were factually intertwined with the merits.

A trial was required for a fair and just determination.