K.E. Cullin

The plaintiffs sold their business, Tracks & Wheels Equipment Brokers Inc., to the defendants.

Disputes arose regarding options to purchase the lands on which the business operated, post-closing adjustments, and the conduct of the parties' shared accountant.

The court found that the accountant breached professional and contractual duties by acting in a conflict of interest.

The court also held that the defendants' counterclaim for post-closing adjustments was not time-barred.

Specific performance was granted to the defendants for the optioned lands, subject to certain severance conditions.

Following the dismissal of the defendant's motion to set aside a noting in default, the successful responding parties sought their costs.

The court awarded partial indemnity costs to the responding parties, finding no exceptional circumstances to depart from the general rule under Rule 57.03 that the successful party on a motion is entitled to costs payable forthwith.

The applicants purchased a property and sought to enforce a prior court order granting them use of a private road over the respondents' property.

The respondents brought a counterapplication seeking a declaration that the road was not an 'access road' under the Road Access Act and an order closing it to the applicants due to an alleged alternate route.

The court held that the respondents were estopped from arguing the road was not an access road due to their concession in the prior proceeding.

The court also found that the respondents failed to prove a change in circumstances, as the alternate route was not a reliable year-round access.

The applicants were permitted to continue using the road subject to the conditions of the prior order.

The applicants commenced an application seeking declarations for insurance coverage and damages following a fire that destroyed their home.

The respondent insurer, who had denied the claim and voided the policy for alleged misrepresentation, brought a motion to convert the application into an action.

The court granted the motion, finding that the proceeding involved multiple issues requiring a trial, including material facts in dispute, credibility issues, and a negligence claim against the insurance broker that could not be bifurcated without consent.

The moving party defendant sought to set aside a noting in default and to strike an affidavit she had previously sworn.

The underlying action arose from an ATV accident where the moving party was the driver and the plaintiff was a passenger.

The moving party had previously sworn an affidavit claiming ownership of the ATV, leading to the dismissal of the action against her common-law spouse.

After the plaintiff's claim was settled by the insurers, they sought subrogation against the moving party, who then claimed she had lied about owning the ATV to protect her spouse's assets.

The court dismissed the motion to set aside the noting in default, finding that doing so would cause substantial prejudice to the innocent insurers who had relied on her representations.

The request to strike the affidavit was also dismissed as moot and inappropriate for a preliminary motion.

The applicants were previously successful in obtaining an order for the sale of a jointly owned property.

In this costs decision, the court declined to award costs to the successful applicants.

The court found that the case involved an unusual set of facts—unrelated property owners with separate dwellings on jointly owned land—and that both parties, particularly the applicants, missed opportunities to resolve the matter short of litigation.

Each party was ordered to bear their own costs.

The accused pled guilty to the second-degree murder of his brother, whom he shot in the back while hunting.

The court considered the accused's Indigenous background, lack of prior violence, and early guilty plea as mitigating factors, weighed against the aggravating factors of planning, deliberation, and breach of trust.

Accepting a joint submission, the court sentenced the accused to life imprisonment with no parole eligibility for 15 years, along with ancillary orders.

The offender was convicted of possession of property obtained by crime and money laundering after turning a blind eye to his spouse's $1 million fraud against her employer.

The Crown sought a three-year penitentiary sentence, while the defence sought two years.

Emphasizing denunciation and deterrence, the court sentenced the offender to 30 months' incarceration and imposed an $800,000 free-standing restitution order, joint and several with his spouse.

The defendant brought a motion seeking leave to compel the plaintiff to attend an independent medical examination and an extension of time to serve the resulting expert report, which would necessitate adjourning the impending trial.

The plaintiff opposed the motion, arguing the request was unjustifiably late and would cause non-compensable prejudice due to statutory deductibles.

The court found the defendant failed to adequately explain the delay in scheduling the assessment and that granting the extension would unfairly prejudice the plaintiff.

The motion for an extension of time and to compel the examination was dismissed.

The accused brought a pretrial application to quash a search warrant for his residence, arguing that after excising evidence obtained in breach of his s. 8 Charter rights, the redacted Information to Obtain (ITO) lacked sufficient evidence to support the warrant.

The court reviewed the redacted ITO and found that, while the direct evidence against the accused was less overwhelming than against his co-accused, the circumstantial evidence, coded text messages, and expert opinions of the affiant provided sufficient credible and reliable evidence to establish reasonable and probable grounds.

The application to quash the search warrant was dismissed.

The respondent brought a motion for the pre-trial sale of the jointly owned matrimonial home under the Partition Act.

The applicant brought a cross-motion for exclusive possession of the home under the Family Law Act until the parties' children graduated from high school.

The court found that the applicant failed to establish a prima facie case for exclusive possession that would defeat the respondent's presumptive right to a sale.

The court noted the high-conflict nature of the parties' current living arrangement on the same property and concluded that a sale was in the best interests of the children.

The motion for sale was granted and the cross-motion for exclusive possession was dismissed.

The accused was charged with possession of property over $5,000 obtained by crime and money laundering.

The charges arose from a fraud committed by the accused's wife against her employer, totalling over $1,000,000.

The fraudulently obtained funds were deposited into a joint account and used to purchase various assets, including vehicles, trailers, and home renovations.

The court found that the accused either had actual knowledge that the funds were obtained illegally or was wilfully blind to their origin, given numerous red flags such as his wife's prior fraud conviction, bad credit, and the sudden influx of unexplained wealth.

The accused was found guilty of both offences.

The applicants and respondent owned a lakefront property as tenants in common, with the applicants using their dwelling recreationally and the respondent using hers as a principal residence.

The applicants sought to sell their interest but alleged the respondent interfered with prospective purchasers.

The applicants brought an application under the Partition Act for the sale of the entire property.

The court found no malicious or vexatious intent by the applicants and concluded that the respondent would not suffer objective hardship amounting to oppression if the property were sold.

The application for the sale of the property was granted, with a reference directed for the conduct of the sale.

The plaintiff sought an interlocutory injunction to restrain the defendants from blocking access to her driveway via a gravel roadway on the defendants' property.

The defendants argued the Road Access Act did not apply because an undeveloped right of way provided alternate access.

Applying the RJR-MacDonald test, the court found a serious issue to be tried regarding the application of the Road Access Act, irreparable harm to the 75-year-old plaintiff due to lack of emergency and service vehicle access, and that the balance of convenience favoured granting limited interim access.

The court ordered the defendants to remove obstructions and permitted the plaintiff restricted use of the roadway until January 2023 to allow for the construction of a new driveway on the right of way.

The respondent father brought an emergency motion in Ontario to recognize and enforce parenting orders made by the Supreme Court of British Columbia.

The applicant mother had relocated to Ontario with the children but repeatedly refused to comply with the BC orders regarding the father's summer parenting time.

The court found that the BC court had jurisdiction and that none of the exceptions under s. 41 of the Children's Law Reform Act applied.

The court recognized the BC orders, authorized police enforcement to apprehend the children, and awarded costs to the father on a full indemnity basis due to the mother's persistent disobedience.

The accused brought a pretrial application alleging multiple breaches of his s. 8 Charter rights during a police investigation into a suspected drug stash house.

The court found that the police's use of a continuously recording, installed video camera directed at the accused's residence without a warrant violated his reasonable expectation of privacy, though video recorded during lawful physical surveillance did not.

The court upheld the police's use of a dynamic entry and the clearing of outbuildings as reasonable for officer safety.

The seizure of gun parts, a crossbow, and a Rolex watch not listed in the warrant was justified under the plain view doctrine and s. 11(8) of the CDSA, but the seizure of other jewelry was found to be unreasonable.

The respondent wife brought a motion for interim spousal and child support.

The applicant husband, a cardiologist, historically earned around $1 million annually but claimed a reduced income of $596,000 for 2021.

The court imputed the husband's income at $712,526 and the wife's income at $192,400 due to her lack of financial disclosure regarding her corporate interests.

The court found the wife had a strong prima facie entitlement to non-compensatory spousal support and ordered the husband to pay $12,127.50 per month in interim spousal support and $2,880 per month in interim child support for their adult child.

The husband was also ordered to designate the wife as the irrevocable beneficiary of a $500,000 life insurance policy.

The plaintiff brought a motion seeking an extension of time to complete the examination for discovery of the representative of the defendant insurance company.

The defendants opposed the motion, arguing the plaintiff had exceeded the seven-hour limit under Rule 31.05.1 and sought to strike the affidavit sworn by a staff member of the plaintiff's counsel.

The court declined to strike the affidavit, finding it appropriate for a procedural motion.

The court granted the plaintiff an additional 1.5 hours for discovery, noting the complexity of the 17-year business relationship and the conduct of defence counsel, but declined to award costs due to the plaintiff's failure to address time limits in the discovery plan.

The accused was charged with sexual assault and sexual interference relating to three historical incidents alleged by the complainant, who was a child at the time.

The court found the complainant's evidence regarding two incidents in her bedroom lacked sufficient reliability to prove identity beyond a reasonable doubt, resulting in acquittals for those events.

However, the court accepted the complainant's evidence, corroborated by the accused's admissions to family members, regarding a third incident where the accused touched the complainant's vagina with his mouth.

The accused was found guilty of sexual interference and sexual assault for this incident, with the sexual assault charge stayed under the Kienapple principle.

The defendant general contractor brought a motion for summary judgment seeking to dismiss a subrogated claim for flood damages, arguing it was barred by a prior Settlement and Release Agreement executed with the plaintiff property owner.

The court found that while the plaintiff and its property manager were sufficiently intertwined to be bound by the agreement, the objective factual matrix demonstrated the agreement was intended only to resolve uninsured, out-of-pocket expenses between the corporations directly.

The agreement did not encompass or extinguish the subrogated claims advanced by the plaintiffs' insurer.

The motion for summary judgment was dismissed.