Kelly C. Tranquilli

The respondent father brought a motion for interim variation of a final parenting order concerning one of three children, E.F., seeking primary residency and decision-making responsibility.

The applicant mother opposed and filed a cross-motion to dismiss the father's motion and vary the parenting order to a shared schedule.

The court found the child's current living situation untenable and that an immediate variation was necessary for the child's physical and emotional well-being, relying significantly on a Voice of the Child Report.

The father's motion was granted, providing him with primary residency and decision-making responsibility for E.F., with the mother having alternate weekend parenting time.

The mother's cross-motion was dismissed.

The plaintiff, a trucking broker, sought summary judgment against two defendant carriers for damages arising from the theft of a poultry shipment, including the value of the goods and significant customs duties levied due to the theft occurring in Canada.

The defendants denied liability, citing lack of notice and unforeseeable damages.

The court dismissed the plaintiff's motion for summary judgment, finding that the factual matrix, including conflicting evidence on sub-brokering authorization, untested expert opinions, and unresolved issues regarding notice of claim under the Carriage of Goods Regulation, was not suitable for disposition under Rule 76 simplified procedure.

The matter was directed to proceed to trial.

The defendants, Universal Protection Service of Canada Corporation, Tina Baldwin, and Randy Smith, brought a motion to prohibit the self-represented plaintiffs, Elizabeth Efthymiadis and George Efthymiadis, from bringing further motions in the proceeding without leave of the court.

The plaintiffs brought a cross-motion to strike portions of Universal's statement of defence.

The court granted Universal's motion, finding that the plaintiffs' persistent and unsuccessful motions and appeals, including the cross-motion which sought to re-litigate previously decided issues, constituted litigation misconduct and an abuse of process.

The plaintiffs' cross-motion was dismissed.

Costs were awarded to Universal, and the parties were directed to establish an updated litigation timetable.

The moving party, an adjudicative tribunal, brought a motion seeking leave to intervene as a friend of the court in an appeal of one of its own decisions regarding property assessment.

The appellant opposed the motion, arguing the tribunal lacked a statutory right to appear and its participation threatened tribunal impartiality.

The Divisional Court granted the motion, applying the established factors for tribunal intervention.

The court found that the tribunal could provide useful context regarding its statutory and procedural framework without engaging in the merits of the appeal or compromising its impartiality.

The applicant father sought primary care, sole decision-making, and spousal support, opposing the respondent mother's request to relocate with their child from Windsor, Ontario, to Grapevine, Texas.

The respondent mother sought leave to relocate with the child, sole decision-making, and child support (offset by travel expenses).

The court dismissed the father's spousal support claim and granted the mother's request to relocate with the child to Texas, awarding her sole decision-making responsibility.

The court found the relocation to be in the child's best interests, considering the mother's primary caregiver role, her ability to meet the child's educational and developmental needs, and the father's inability to cooperate and make child-focused decisions.

Child support obligations for the father were suspended to offset travel expenses.

The respondent sought orders for vacant possession of her solely-titled property and a restraining order against the applicant, with whom she had a past cohabitation and licensee relationship.

The applicant claimed an equitable interest in the property (unjust enrichment, constructive or resulting trust) and opposed the orders.

The court found the applicant failed to establish a prima facie right to continued occupation, noting his inconsistent evidence and failure to pay agreed-upon monthly contributions.

The court granted vacant possession to the respondent, effective April 14, 2023, with police assistance if necessary, and issued a restraining order under s. 46 of the Family Law Act due to the applicant's disturbing and harassing conduct.

The applicant sought exclusive possession of the matrimonial home due to the respondent's creation of an intolerable living environment, characterized by filth and damage.

The respondent moved to set aside an ex parte order granting exclusive possession, alleging material non-disclosure and seeking his own exclusive possession and primary residency of the children.

The court dismissed the respondent's motion and granted the applicant's renewed motion, finding compelling evidence of the deplorable living conditions and the respondent's inadequate explanations.

The court also granted the applicant interim sole decision-making and primary residency for the children, with parenting time for the respondent based on the children's wishes.

The defendants brought a motion under section 44 of the Construction Act to reduce the security posted for a construction lien registered by the plaintiffs.

The defendants argued that the lien claim included non-lienable services (real estate consulting, property management) and exaggerated amounts (labour hours, demolition, framing, drywall).

The court found that the plaintiffs' claims for real estate consulting and property management fees were non-lienable and that other claims, particularly for labour, were exaggerated and unsubstantiated.

The motion was granted, and the security was significantly reduced from $173,125 to $15,903.19.

The defendants brought a motion to enforce an alleged undertaking by the plaintiff's counsel to limit the scope of the plaintiff estate's solicitor negligence claim.

The estate's action stemmed from alleged improvident settlements of long-term disability and accident benefits claims, and pressure regarding a tort claim.

The defendants argued that the plaintiff's counsel had represented, both in correspondence and to the Divisional Court, that the claim would be limited to damages arising solely from the long-term disability settlement.

The court found that the plaintiff's counsel made an enforceable solicitor's undertaking to the court, which was relied upon by the Divisional Court in a prior appeal.

The court also found that any settlement privilege attached to the correspondence was waived by the subsequent open court representation.

Consequently, the motion was granted, and the plaintiff estate was held to have waived all claims for losses, including non-pecuniary damages, arising from the settlement or management of its accident benefits and tort claims.

The respondent father brought a motion seeking orders for partition and sale of the matrimonial home, compliance with previous disclosure and payment orders, enforcement of parenting time, and a police-assist order.

The applicant mother opposed the sale and sought an adjournment.

The court dismissed the adjournment request, finding the matrimonial home's financing unsustainable due to the applicant's non-compliance with payment orders.

The court ordered the sale of the home, directed the applicant to account for and reverse unauthorized renovations, and issued compliance orders for financial disclosure and parenting time, including make-up time for the respondent.

The respondent was deemed entirely successful and presumptively entitled to costs.

Following the dismissal of the applicants' challenge to Western University's COVID-19 vaccine mandate, the university sought partial indemnity costs of $97,721.11.

The applicants argued no costs should be awarded as the case was public interest litigation.

The court rejected this argument, finding the case lacked the exceptional nature required to deviate from the usual costs rules, and noted the applicants were backed by a litigation fund.

The court awarded the university costs fixed at $75,000.

The plaintiffs moved for a Certificate of Pending Litigation (CPL) against a 108-acre parcel of land.

The plaintiff had agreed to purchase five acres of the land from one of the co-owners for $750,000 and advanced $640,000 before the defendant purported to terminate the agreement.

The defendant argued the agreement was unenforceable under the Statute of Frauds and the Planning Act.

The court found a triable issue regarding the plaintiffs' interest in the land and held that the equities favoured granting the CPL, as the property was unique and the plaintiffs had advanced 85% of the purchase price.

The Crown brought pre-trial applications to admit text messages extracted from a seized cellphone for the truth of their contents and to qualify a police officer as an expert in drug trafficking.

The accused was charged with possession of controlled substances for the purpose of trafficking after police observed suspected drug transactions and seized fentanyl, methamphetamine, and cocaine from a vehicle.

The court found the text messages were admissible under the principled exception to hearsay, as their content strongly corroborated police surveillance, establishing threshold reliability and necessity.

The court also qualified the officer as an expert, finding his practical experience in the illicit drug trade sufficient despite a lack of formal training.

The defendants brought a motion to strike the plaintiffs' statement of claim, which sought damages arising from a child protection agency's investigation into allegations that a foster parent sexually abused a foster child.

The court struck the claims in negligence, breach of fiduciary duty, breach of statutory duty, and defamation, finding that a child protection agency does not owe a duty of care to foster parents, as its paramount duty is to the child.

The claims against the individual employees were also struck due to statutory immunity.

However, the court granted the plaintiffs leave to amend their claim to plead the tort of misfeasance in public office.

The applicant students sought declaratory and permanent injunctive relief against the respondent university's COVID-19 Vaccination Policy, arguing that the collection of proof of vaccination violated s. 38(2) of the Freedom of Information and Protection of Privacy Act (FIPPA).

The court found that the university's broad statutory powers authorized the Policy as a 'lawfully authorized activity' and that the collection of proof of vaccination was 'necessary' to properly administer and enforce the mandate.

The application was dismissed.

The applicant brought a motion for leave to examine the respondent's former counsel and for production of the counsel's file, arguing the respondent waived solicitor-client privilege during cross-examination.

The underlying dispute involved the respondent's refusal to discharge a vendor take-back mortgage, which allegedly caused the applicant damages.

The court found the respondent waived privilege by putting its instructions to counsel in issue.

Applying the First Capital test, the court granted leave to examine the former counsel under Rules 39.02(2) and 39.03, finding the evidence relevant to the assessment of damages and that the applicant had no prior notice of the respondent's position.

The applicant brought a pre-trial Charter application seeking a stay of proceedings or exclusion of breath sample evidence, alleging breaches of her ss. 7, 8, 9, and 10(a) and (b) Charter rights following a motor vehicle collision.

The court found that the arresting officer had reasonable and probable grounds to arrest the applicant for impaired driving, based on her admission of alcohol consumption, the smell of alcohol, and her attempt to flee the scene after making a suicidal statement.

The court also found no breach of the applicant's right to counsel, as a 9-minute delay was justified by safety concerns.

The application was dismissed.

The accused, charged with 12 offences on a single indictment involving physical assaults against his son and sexual offences against his daughter, applied to sever the counts.

The court applied the factors from R. v. Last to determine if severance was in the interests of justice.

Finding a significant risk of prejudice to the accused through credibility cross-pollination and improper propensity reasoning, and noting the tenuous factual and legal nexus between the two sets of charges, the court concluded that a limiting instruction to the jury would be insufficient.

The application was granted, and the counts relating to the son were severed from those relating to the daughter.

The accused was charged with seven violent offences, including sexual assault, assault with a weapon, assault by choking, and uttering death threats, arising from an 18-month relationship with his former intimate partner.

The trial turned on the credibility of the parties, with the Crown relying on secret audio recordings made by the complainant that captured the accused's abusive behaviour.

The court rejected the accused's testimony, finding it implausible and contradicted by the recordings, and accepted the complainant's evidence.

The accused was found guilty on all counts.

The moving party father brought a motion for an interim order expanding his parenting time to a week-about shared parenting schedule.

The responding party mother opposed the motion, arguing there was no material change in circumstances and that the change would be too disruptive for the child.

The court found that the previous interim order did not establish a status quo that required a material change in circumstances to vary.

Applying the maximum contact principle under the Divorce Act and Children's Law Reform Act, the court concluded it was in the child's best interests to expand parenting time, as there were no safety concerns and the father had a flexible work schedule and childcare plan.

The motion was granted.