Kathleen E. Cullin

The Missanabie Cree First Nation moved to certify a class action on behalf of all Treaty 9 First Nations, seeking declarations and damages for alleged breaches of treaty obligations by Canada and Ontario.

The defendants opposed certification on the sole ground that a class action was not the preferable procedure.

The court held that the collective nature of treaty rights is incompatible with the opt-out mechanism of a class action, which risks fragmented outcomes and multiple proceedings.

The court found that a representative action, which allows individual First Nations to participate on their own terms without risking parallel interpretations, is a reasonably available and superior alternative.

The motion for certification was denied.

In a Binding Judicial Dispute Resolution hearing, the court determined parenting time and child support issues.

The court ordered a gradual resumption of parenting time for the respondent with the parties' 12-year-old child, who has special needs, beginning in Ottawa and transitioning to a rotating schedule between Ottawa and Timmins.

A parenting coordinator was appointed for 24 months to assist with implementation.

The court also fixed ongoing child support at $2,151 per month and calculated child support arrears at $17,174, declining to cap the respondent's income or find undue hardship based on travel expenses.

The appellant mother appealed an enforcement order that granted the respondent father final decision-making authority over their son's medical care and imposed fines on the mother for missed parenting time.

The Divisional Court found that while the motion judge had jurisdiction to make a substantive remedial order under rule 1(8) of the Family Law Rules to address the child's crisis, it was an error to make the order final rather than temporary pending a motion to change.

The appeal was allowed in part, varying the order to be temporary and capping the accrued fines at $1,000.

The applicant, charged with possession of fentanyl for the purpose of trafficking, sought leave to cross-examine the affiant of an Information to Obtain (ITO) a search warrant in the context of a Garofoli review.

The applicant sought to question the affiant on the underlying warrantless vehicle search, a witness statement synopsis, and confidential informant information.

The court granted leave to cross-examine solely on the affiant's knowledge regarding the connection between the drugs found in the vehicle and the applicant or his residence.

Leave was denied regarding the constitutionality of the vehicle search, the witness statement, and the confidential informant, as cross-examination on those issues was not reasonably likely to assist the court in determining whether there was a basis for the warrant.

Following a bifurcated trial where the plaintiffs were awarded damages for the defendants' breach of a commercial lease, the plaintiffs sought costs.

The plaintiffs had made an offer to settle that they beat at trial.

The court applied Rule 49.10 and awarded the plaintiffs partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing total costs at $906,704.33.

Following the dismissal of an application regarding the applicability of the Residential Tenancies Act, 2006, the court addressed the issue of costs.

The self-represented respondents sought $13,500, while the applicant argued for no costs or a set-off against a previous costs award.

Applying the test from Girao v. Cunningham, the court found the respondents were entitled to a fee allowance for work ordinarily done by a lawyer and for opportunity costs incurred.

The court awarded the respondents partial indemnity costs fixed at $4,000, noting their mixed success on procedural issues.

The accused was convicted of second degree murder after shooting and killing his brother during an argument.

At sentencing, the court considered the accused's status as a youthful first-time Indigenous offender and the role of his undiagnosed schizophrenia in the commission of the offence.

Applying the Gladue framework and considering the mitigating impact of his mental illness, the court sentenced the accused to life imprisonment with a parole ineligibility period of 11 years.

The court denied the accused's request for an exception to the mandatory weapons prohibition for sustenance hunting, citing public safety concerns related to his severe, treatment-resistant mental illness.

The accused, a youthful first-time offender, was convicted by a jury of dangerous operation of a motor vehicle causing death after attempting to pass a tractor-trailer in poor visibility caused by blowing snow, resulting in a fatal head-on collision.

The court found the accused's moral blameworthiness to be at the lower end of the spectrum, as the driving was not impaired or generally reckless, but rather a brief, serious lapse in judgment.

Balancing the principles of denunciation and deterrence with the accused's strong rehabilitative prospects and the collateral consequences of a mandatory licence suspension, the court imposed a conditional sentence of two years less a day, including house arrest and community service, along with a five-year driving prohibition.

The applicant, an estate trustee operating a seasonal campground, sought a declaration that the rental contract for a cottage lot was governed by the Commercial Tenancies Act rather than the Residential Tenancies Act, 2006.

The respondents, who purchased a permanent cottage on the rented lot, argued the RTA applied.

The court examined the nature of the rental arrangement, including the permanent structure, year-round financial obligations such as property taxes and insurance, and the pattern of long-term occupancy, and found that the lot constituted a rental unit within the meaning of the RTA.

The s. 5(a) exemption for seasonal or temporary accommodation did not apply, as the arrangement was more consistent with an ongoing residential tenancy than transient seasonal use.

The matter was remitted to the Landlord and Tenant Board.

Following a trial on damages in a commercial dispute involving mall tenancy losses, the court issued supplementary reasons correcting calculation errors in the damages previously awarded.

The correction increased the total damages to $580,600.63 after identifying an arithmetic mistake relating to losses associated with inducing a replacement anchor tenant.

The parties jointly agreed to prejudgment interest under the Courts of Justice Act at a rate of 2.8%, resulting in prejudgment interest of $352,973.37 to January 15, 2026.

The plaintiffs’ remaining claims for damages were dismissed.

Costs were left to be determined following written submissions.

In a family law costs decision following a focused hearing on common-law cohabitation, the court applied s. 131 of the Courts of Justice Act and Rule 24 of the Family Law Rules.

The court reviewed governing costs principles, including presumptive entitlement for success at a step, fairness and reasonableness, access to justice, and the relevance of litigation conduct and financial circumstances to quantum.

Although the successful party sought full indemnity costs for broader steps in the proceeding, the court confined the award to the focused hearing and found full indemnity unwarranted on the record.

The court fixed partial indemnity costs at 60% of the focused-hearing amount, totaling $8,014.64 inclusive of HST, payable in any event of the cause.

On competing motions in a legal malpractice action, the court refused to strike the defendants’ summary judgment motion in its entirety and narrowed the issues suitable for summary adjudication.

The court held that standard of care and certain causation and damages issues could proceed summarily, while broader causation questions tied to unjoined parties would require a trial-within-a-trial analysis.

The court also ruled extensively on evidentiary admissibility, striking specific affidavit paragraphs, exhibits, and will-state statements while allowing other hearsay-limited material for non-truth purposes related to knowledge and retainer scope.

The matter was directed to continue with a focused summary judgment record and a subsequent case management conference.

The applicant sought spousal support and a declaration of an interest in the respondent's property, alleging they cohabited as common-law spouses from 2000 to 2019.

The respondent claimed they were merely platonic friends and roommates since 2007.

Following a focused hearing, the court applied the Molodowich factors and found that the parties' conduct, including shared living arrangements, joint activities, and holding themselves out as spouses, demonstrated a spousal relationship.

The court declared that the parties cohabited within the meaning of the Family Law Act from September 2001 to March 2019.

The plaintiff mall owners sought over $12 million in consequential damages following the defendant anchor tenant's early closure in breach of its lease.

The trial was bifurcated, with liability previously determined in the plaintiffs' favour.

The court assessed various heads of damages, applying the test for remoteness from Hadley v. Baxendale.

The court awarded $570,216.02, finding that certain tenant inducements and lost rent from specific departing tenants were reasonably foreseeable consequences of the sudden breach.

However, the court dismissed the majority of the claims, concluding that mall renovations were planned maintenance, several tenant failures were unrelated to the breach, and the claim for lost prospective tenants was speculative.

Following a trial where the plaintiff was awarded damages for negligent construction in a real estate transaction, the court determined the costs and prejudgment interest.

The plaintiff had made an offer to settle that was lower than the trial judgment.

Applying Rule 49.10, the court awarded the plaintiff partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, rejecting the self-represented defendants' argument that their impecuniosity should preclude a costs award.

Following a judge-alone trial on May 21, 2025, the accused was found guilty of assault by choking contrary to section 267(c) of the Criminal Code and not guilty of simple assault.

At sentencing on September 9, 2025, the court imposed an absolute discharge with ancillary orders including a DNA order, weapons prohibition, victim fine surcharge, and a 12-month peace bond.

The Crown sought 60 days incarceration plus 12 months probation, while the defence sought an absolute discharge.

The court found that while the offence involved intimate partner violence, the unique circumstances—including the accused's reduced moral culpability, first-time offender status, extensive rehabilitation efforts, and significant collateral consequences—warranted a discharge rather than incarceration.

The court addressed two competing motions arising from overlapping proceedings: an application commenced by 9165-6462 Quebec Inc. in Sudbury seeking enforcement of a Transfer Agreement and declarations regarding share ownership, and an action commenced by the plaintiff in Cochrane seeking declarations that the Transfer Agreement is void and that he remains the owner of shares in the DJB companies.

The plaintiff sought to consolidate the proceedings and transfer them to Cochrane, while 9165 Inc. sought to stay or dismiss the action in favour of the application.

The court found that permitting the action to proceed would constitute an abuse of process and an improper collateral attack on a prior judicial order declining to transfer the application.

The court stayed the action against 9165 Inc. pending resolution of the application and dismissed the consolidation motion without prejudice.

The defendant brought a motion to amend its statement of defence to add counterclaims against the plaintiffs, their counsel, and a court reporting service.

The counterclaims alleged fraudulent misrepresentation, civil conspiracy, abuse of process, invasion of privacy, and other causes of action arising from alleged misrepresentation regarding document service and the billing of discovery examination fees.

The court dismissed the motion, finding that the proposed counterclaims did not advance legally tenable causes of action and that the issues raised were not properly the subject of a counterclaim in this proceeding.

The court awarded full indemnity costs to the plaintiffs.

The respondent brought a motion to change seeking to terminate his obligation to pay spousal support following his retirement.

The applicant, who was in default and did not file responding materials, receives spousal support as her primary source of income.

The court found that while retirement constituted a material change in circumstances warranting variation of support, termination was not appropriate given the long-term nature of the marriage and the applicant's ongoing financial need.

The court reduced spousal support from $3,000 to $1,730 per month, calculated using realistic income projections from the respondent's retirement savings, government benefits, and inheritance funds.

The court also vacated the requirement to maintain employment benefits but ordered that spousal support obligations form a first charge on the respondent's estate.

A binding judicial dispute resolution hearing addressing parenting time and decision-making, child support, spousal support, and division of property between unmarried parents.

The applicant sought child support for two children, one of whom was not the respondent's biological child.

The court found the respondent had demonstrated a settled intention to treat the non-biological child as his own and was therefore liable for child support.

The court determined income for both parties, calculated child support obligations, addressed section 7 expenses, dismissed the spousal support claim, denied the respondent's claim for apportionment of rental income, awarded the applicant a 20% equitable interest in a property held solely in the respondent's name, dismissed the respondent's claims regarding business interests, ordered the sale of a jointly owned rental property, and addressed the respondent's line of credit liability.