Kayla A. Carr

The moving party defendants in a multi-defendant civil action brought a motion for dismissal of the action against them without costs.

The plaintiff municipality had settled the action with the moving parties.

Having regard to the consents filed, the unopposed defendants, and the defendants who had not responded despite being duly served, the court granted the motion and issued an order in accordance with the draft order filed.

The moving parties brought a motion for leave to appeal the decision of Braid J. dated October 9, 2025.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the responding party.

The applicant, Linda Kulchycki, sought to reinstate a 2008 power of attorney and codicil executed by her mother, Mary Kulchycki, and to set aside new powers of attorney and a will executed by Mary in 2020.

Linda alleged conflicts of interest and improper conduct by the respondents, Nancy and Diana Kulchycki, and the lawyer involved in the 2020 documents.

The court found that Linda provided no evidence of incapacity, undue influence, or mismanagement, and that a will challenge is premature while the testator is alive.

The application was dismissed, and costs were awarded against Linda.

The appellants appealed a trial judgment and costs decision resulting from four consolidated actions related to a construction project.

The appellants argued the trial judge erred by admitting hearsay evidence (trucking invoices and dump tickets) without requiring the truck drivers to testify, and by misapprehending evidence regarding soil quality and excavation.

The Divisional Court dismissed the appeal, finding the trial judge properly admitted the documents under the principled approach to hearsay through viva voce testimony, especially since the appellants had not objected at trial and had taken an 'all or nothing' approach by alleging fraud.

The court also found no palpable and overriding error in the trial judge's factual findings regarding the poor soil conditions and the necessity of trucking soil offsite.

The appeal regarding the apportionment of storage costs for a Ferrari given as compensation was also dismissed.

The applicants sought a declaration of possessory title over a three-foot strip of land abutting their cottage property.

The court found that while the applicants had actual possession of the disputed lands, they failed to establish an intention to exclude the true owners or that they effectively excluded them.

The disputed lands were open and accessible to the community, and the true owners frequently crossed and used the lands without restriction.

The application for adverse possession was dismissed.

Following a successful motion by the defendant Nelson to permanently stay the action and crossclaim against him, the parties could not agree on costs.

Nelson sought costs for both the stay motion and a moot summary judgment motion brought by the co-defendant Halton.

The court declined to award costs for the moot summary judgment motion.

However, the court awarded Nelson his costs for the successful stay motion on a partial indemnity basis, rejecting Halton's argument that Nelson's criminal conduct should preclude a costs award.

Halton was ordered to pay Nelson $19,000 in costs.

The defendant Tad Nelson moved to permanently stay the action against him due to the plaintiff and co-defendant Regional Municipality of Halton's failure to immediately disclose a settlement agreement.

This agreement included an assignment of the plaintiff's claim against Nelson to Halton.

The court found that the settlement significantly altered the litigation landscape and the adversarial relationship between the parties, requiring immediate and full disclosure.

The delayed and partial disclosure constituted an abuse of process.

The court rejected arguments of no prejudice and delay in bringing the motion.

The action and Halton's crossclaim against Nelson were permanently stayed.

The plaintiff brought a motion to consolidate two Hamilton applications regarding the administration of their late father's estate with a related Toronto action.

The plaintiff and her brother, the defendant, are co-executors and sole beneficiaries of the estate, and their relationship has irrevocably broken down.

The court granted the motion, converting the applications into actions and consolidating them with the Toronto action, finding that the proceedings arise from the same series of transactions and that consolidation would avoid a multiplicity of proceedings and the risk of inconsistent findings.

The plaintiff alleged sexual assault by the defendant Nelson while employed by Halton.

Halton settled with the plaintiff and moved for summary judgment on its crossclaim against Nelson.

Nelson sought to amend the motion timetable to adduce late expert evidence from a personal injury lawyer regarding the reasonableness of the settlement, which would require a six-month adjournment.

The court dismissed the request, emphasizing the importance of adhering to court-ordered schedules, proportionality, and timeliness, and noting doubts about the admissibility of such expert evidence.

The applicant Estate Trustees sought the court's opinion and advice on interpreting a clause in the testator's will that granted one of her sons an option to purchase her 'farming business' for a fixed price.

The son argued that the testator's rental of the farm property to him constituted carrying on the farming business.

Applying the armchair rule, the court found that the testator intended the phrase to mean the active farming business she and her late husband had previously operated, not the passive rental of land.

As the testator was not carrying on the active farming business at her death, the option to purchase was declared ineffective and the farm property fell into the residue of the estate.

The Regional Municipality of Halton sought default judgment against Tad Nelson, who had been noted in default.

Nelson subsequently retained counsel and sought to set aside the noting in default.

The court convened a case conference to schedule both motions.

The judge decided that both motions should be heard orally and together by a judge, rather than Nelson's motion to set aside default being heard by a Master first.

The decision emphasized efficiency, affordability, and proportionality over tactical considerations regarding appeal routes.

The defendant brought a motion to transfer the action from Hamilton to Toronto pursuant to Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiff opposed the motion.

Noting that a summary judgment motion was already scheduled to be heard in Hamilton on consent, the court found the transfer motion premature.

The motion was dismissed without prejudice to renew it following the determination of the pending summary judgment motion.

This is a costs endorsement following an appeal from orders of the Superior Court of Justice dated June 26, 2017 and March 6, 2018.

The appellants were unsuccessful in their appeal.

The Court of Appeal awarded costs to the appellants on a partial indemnity scale in the amount of $25,000 inclusive of disbursements and HST.

The appellants appealed a contempt sentencing order from the Superior Court.

The respondent had brought an action claiming monies advanced to the appellants were not properly disbursed and that the appellants lacked a proper accounting system.

An interim order required the appellants to account for monies received, disclose documents to an appointed accounting firm, and pay unpaid accounts.

The appellants were found in contempt for failing to comply with the accounting and disclosure requirements.

On appeal, the appellants did not contest the contempt finding but challenged the sentencing as based on an erroneous finding that they had not purged their contempt and as disproportionate.

The Court of Appeal allowed the appeal in part, finding the motion judge erred in refusing to admit fresh evidence regarding purge of contempt, and that the sentence was disproportionate.

The plaintiff moved for an interlocutory injunction to prevent the defendants from blocking access to a laneway on lands owned by the plaintiff.

The defendants cross-moved for an injunction preventing the plaintiff from using the lands, claiming they had acquired title by adverse possession.

The court found the defendants failed to establish a strong prima facie case of adverse possession, as they could not show the true owner was excluded for the requisite 10-year period prior to the lands being converted to Land Titles.

The court granted the plaintiff's motion, ordering the defendants to remove gravel blocking the laneway, and dismissed the defendants' cross-motion.