J.W. Quinn

Addendum to previously released reasons for judgment correcting an administrative error concerning the identification of counsel.

After the original decision was released, the court was advised that the names of counsel for the parties had been reversed.

The court issued an addendum to accurately reflect counsel for the plaintiff and defendant.

The addendum does not alter the substance of the earlier reasons or the disposition of the case.

The defendant, Daniel Sherk, brought a motion to vary a consent interlocutory injunction that prohibited him from soliciting or servicing clients of his former employer, Verge Insurance Brokers Limited.

He sought to suspend and amend the injunction under Rules 59.06(2)(b) and (d) of the Rules of Civil Procedure, arguing that the restrictive covenants had expired and the court had inherent jurisdiction to vary the order.

The court dismissed the motion, holding that a consent order can only be varied on the same grounds as a contract can be rectified, and that the court's inherent jurisdiction cannot be used to circumvent the express provisions of the Rules or to upset a fairly negotiated bargain.

The applicant, a charitable non-profit corporation, sought a declaration that its 40-unit apartment building for low-income seniors was exempt from municipal taxation under s. 3(1) para. 12(iii) of the Assessment Act.

The Municipal Property Assessment Corporation opposed, arguing the applicant merely provided affordable housing rather than relieving poverty.

The court found that the term 'poor' is relative and not limited to the destitute.

Given the tenants' average and median incomes, which closely aligned with Statistics Canada's low-income cut-offs, the court concluded the residents were 'poor' within the meaning of the Act.

The application was allowed and the property was declared exempt from municipal taxation.

The accused brought a pre-trial Charter application alleging that police unlawfully entered his residence without a warrant after responding to an animal complaint involving aggressive dogs.

The court held that warrantless searches are prima facie unreasonable, but found the police had a reasonable basis to believe exigent circumstances existed and that entry was necessary to check for persons in distress or ongoing danger inside the home.

The initial entry was characterized as a welfare check rather than a drug search, and the subsequent search was conducted under a tele-warrant.

The application was dismissed and no s. 24(2) analysis was required.

On a pre-trial application, the accused challenged a Controlled Drugs and Substances Act search warrant and sought leave to cross-examine the affiant on the Information to Obtain.

The court held the proposed cross-examination was speculative, risked encroaching on confidential informant privilege, and was not reasonably likely to elicit evidence undermining the statutory preconditions for issuance of the warrant.

Applying the jurisprudence governing informer-based warrants, the court found the confidential informants' information sufficiently compelling, credible, and corroborated by police surveillance.

The court concluded there was no breach of s. 8 of the Charter, and therefore no basis to exclude the seized drugs and currency under s. 24(2).

This was a post-trial costs decision arising from a lengthy commercial dispute over the purchase of a hearing clinic.

Although the plaintiff obtained only $423.20 for five minor breaches of contract, it had pursued extensive allegations of fraud, misconduct, and other wrongdoing, many of which the trial judge found were advanced through fabricated evidence and deliberate falsehoods.

Applying the costs factors under Rule 57.01(1), the court divided the case into issue-based components and awarded full indemnity costs for the fraudulent misrepresentation allegations, substantial indemnity costs for the professional misconduct-related allegations, and partial indemnity costs for most remaining contract issues.

The court also held that the directing mind behind the corporate plaintiff and its sole shareholder were jointly and severally liable for the full indemnity portion because they used the corporation to attempt to perpetrate a fraud upon the court.

A family law trial addressing custody, access, child support, and related relief concerning a child born in 2009.

The applicant mother sought sole custody and raised numerous allegations about the respondent father’s parenting capacity, drug use, and behaviour.

After reviewing extensive evidence including a partial s. 30 assessment, medical evidence about the child’s asthma, and testimony from witnesses, the court rejected the majority of the allegations as unsupported and found the father to be a credible and capable parent.

The court held that the child’s best interests favoured joint custody with the child residing primarily with the mother and significant parenting time for the father.

The court also addressed attempts by the mother to obstruct access through third-party no‑trespass notices issued by a housing co‑operative, finding they were based solely on her representations and were intended to interfere with anticipated court orders.

Following a lengthy trial in which the defendants obtained a largely favourable judgment and anticipated a substantial costs award, the defendants brought a motion seeking the appointment of a receiver over the plaintiff corporation pending determination of trial costs.

The plaintiff argued that the motion was barred because it had filed a notice of appeal, triggering the automatic stay of money judgments under Rule 63.01(1) of the Rules of Civil Procedure.

The court held that the requested receivership was not enforcement of a money judgment but a preservative measure intended to protect the corporation’s assets until costs were determined.

Accordingly, the automatic stay did not apply and the court retained jurisdiction to hear a motion for a receiver.

The defendants were permitted to return the motion for a full hearing on whether appointing a receiver would be just or convenient under s. 101 of the Courts of Justice Act.

The plaintiff purchased a hearing clinic from the defendants and later alleged numerous fraudulent misrepresentations relating to patient numbers, referrals, profitability, and other operational matters.

After a lengthy 72‑day trial spanning several years and extensive documentary evidence, the court found the plaintiff’s principal witness unreliable and rejected the majority of alleged misrepresentations.

While the defendants had knowledge that a former employee may have possessed a patient list, the court held that the plaintiff failed to prove reliance or damages arising from that nondisclosure.

Several minor breaches of the asset purchase agreement were established, including issues relating to keys, inventory removal, software discs, QuickBooks data, and Canada Post mail handling, but damages were minimal.

The accused brought a pre-trial application seeking exclusion of heroin, cash, and a digital scale discovered during a warrantless arrest and vehicle search, alleging breaches of ss. 8 and 9 of the Charter.

Police had acted on a confidential informant’s tip alleging heroin trafficking from a vehicle and conducted two days of surveillance documenting multiple brief stops, short interactions with individuals, and what an officer described as a hand‑to‑hand exchange at a residence associated with a heroin user.

The court assessed the reliability of the tip and the police observations under the totality of the circumstances and the reasonable grounds standard under s. 495(1) of the Criminal Code.

Although individual observations might have been consistent with innocent conduct, the pattern of repeated brief stops and interactions corroborated the tip and provided objectively reasonable grounds for arrest.

Because the arrest was lawful, the search incident to arrest was also lawful and the evidence was admissible.

The plaintiffs brought motions for an interlocutory injunction and for production of documents against the defendants, who were former employees and a competing insurance brokerage.

The injunction motion was settled and the production motion was stayed.

The plaintiffs sought substantial indemnity costs of over $390,000, arguing the defendants unnecessarily lengthened the proceedings and engaged in wrongdoing.

The court found the injunction component of the action was effectively spent, justifying fixing costs payable forthwith rather than in the cause.

The court awarded partial indemnity costs of $255,237, apportioned equally among the three responding defendants, after making deductions for services not directly related to the motions.

Following the dismissal of her appeal regarding municipal election compliance audits, the appellant argued she should not be liable for costs because she was a public-interest litigant.

The respondents sought costs, alleging the appellant targeted them for private reasons related to a local development dispute.

The court found that the appellant was a public-interest litigant who brought the applications in good faith to address matters of public importance regarding campaign finances.

The court dismissed the respondents' claim for costs and ordered all parties to bear their own costs.

An insurer sought declarations that coverage was unavailable under a professional liability claims-made-and-reported insurance policy issued to a home inspector.

The insured had answered “no” on policy renewal applications when asked whether he was aware of any situation or circumstance that might result in a claim, despite knowing that a worker had died after contacting an exposed energized wire in a property he had inspected and that the Ministry of Labour had investigated and conducted an inquest.

The court held that the reporting obligation is assessed using an objective test and that the investigation and inquest constituted circumstances that reasonably called for disclosure.

Because the policy application contained an exclusion for claims arising from undisclosed circumstances, coverage never attached.

Relief from forfeiture was unavailable because the exclusion meant the claim fell outside the policy’s coverage entirely.

The moving party sought to vary a spousal support order following a catastrophic stroke that significantly reduced his income.

The responding party opposed termination of support, asserting inability to work due to fibromyalgia and ongoing financial need.

The court found a material change in circumstances under s. 17(4.1) of the Divorce Act due to the payor’s permanent disability and reduced income.

The court rejected the recipient’s claim of unemployability due to insufficient medical evidence and imputed minimum-wage income, and also drew adverse inferences regarding financial need because the recipient was cohabiting with a new partner without providing financial disclosure.

Spousal support was reduced substantially and structured to decline in stages rather than terminated.

The mortgagor obtained an ex parte Order for Assessment under s. 3 of the Solicitors Act to assess the legal accounts of the mortgagee's lawyers, Cassels Brock, following a power of sale.

Cassels Brock moved to set aside the order, arguing the mortgagor was not their client, while the mortgagor moved for contempt due to non-compliance.

The court set aside the Order for Assessment, finding the mortgagor was not a 'client' under s. 3 and thus the order was a nullity.

The contempt motion was dismissed as the non-compliance was not deliberate and wilful.

However, the court allowed the mortgagor's alternative motion for an assessment under s. 9 of the Solicitors Act to proceed with viva voce evidence.

The plaintiffs brought a motion to compel the defendant property owner to fulfill undertakings and answer refusals from examinations for discovery, primarily concerning the production of an insurance adjuster's file.

The defendant brought a cross-motion to compel the plaintiffs to fulfill their own undertakings.

The court held that in third-party tort claims, an insurance adjuster's investigation is conducted solely in anticipation of litigation, meaning litigation privilege attaches to the adjuster's file from the moment they are retained.

The court upheld most of the defendant's refusals based on litigation privilege but ordered the production of redacted monthly property management reports.

The court also ordered the plaintiffs to provide particulars of out-of-pocket expenses and collateral benefits.

During a civil trial arising from the purchase of a hearing clinic business, the plaintiff sought leave mid‑trial to adduce additional evidence from its first witness concerning alleged improper professional practices and billing irregularities by the defendants.

The defendants ultimately consented to the admission of the evidence on the condition that the trial be briefly adjourned and that they receive substantial indemnity costs.

The court granted the adjournment, finding the plaintiff’s late introduction of extensive new documentary evidence and allegations unjustified and disruptive to the defence.

Although the plaintiff succeeded in obtaining leave to present the additional evidence, the court held that the lateness of the motion constituted litigation misconduct warranting costs on a substantial indemnity basis.

The appellant appealed an assault conviction from the Ontario Court of Justice, arguing that the trial judge erred in applying the rule in Browne v. Dunn by concluding that defence counsel failed to put certain contradictory propositions to Crown witnesses in cross-examination.

The appellant submitted that the rule was misapplied and that any alleged deficiency in cross-examination did not justify undermining the defence evidence.

The reviewing judge held that although the trial judge raised and analyzed the Browne v. Dunn rule and relevant authorities, the reasons as a whole showed that the trial judge ultimately declined to apply the rule against the accused.

The conviction rested on credibility findings favouring the complainant and a corroborating witness.

The appeal was therefore dismissed.

An elector appealed decisions refusing to order compliance audits of municipal election campaign finances under the Municipal Elections Act, 1996.

The applications alleged that candidates received excessive contributions from associated corporations and filed incomplete financial disclosure forms (Form 4).

The court held that receiving excessive contributions is not itself a contravention of the Act provided the candidate returns the funds as soon as possible after becoming aware of the violation.

Although several candidates technically contravened the Act by improperly completing Form 4, the compliance audit committee retained discretion whether to order an audit.

Given that the excessive contributions had already been returned and no further information was likely to emerge, it was reasonable to refuse an audit.

The defendants sought leave to bring a motion for summary judgment after the action had already been set down for trial.

The court considered whether Rule 48.04(1) of the Rules of Civil Procedure required leave for such a motion and the appropriate test for granting leave.

The court held that summary judgment motions fall within the phrase “any motion” under the rule and therefore require leave once an action has been set down for trial.

However, the court rejected the rigid requirement that the moving party demonstrate a substantial and unexpected change in circumstances.

Leave should be granted where the motion may reduce issues, shorten the trial, or eliminate the need for trial without causing undue delay.