Kelly C. Tranquilli

The applicant insurer appealed an arbitration award determining priority for Statutory Accident Benefits following a motor vehicle accident involving a catastrophically injured child.

The child's parents were separated, and the insurers disputed whether the child was principally dependent on her mother or father at the time of the accident.

The arbitrator found the child was principally dependent on her mother, utilizing a 12-month time frame for the dependency analysis rather than the 5.5-week period immediately preceding the accident when the child briefly resided with her father.

The Superior Court of Justice dismissed the appeal, finding no extricable error of law or palpable and overriding error in the arbitrator's determination of the appropriate time frame or assessment of care dependency.

The applicants, charged with possession of fentanyl and cocaine for the purpose of trafficking, applied for a stay of proceedings under s. 11(b) of the Charter, arguing unreasonable delay.

The anticipated trial date was 45 months after the charges were laid, exceeding the 30-month presumptive ceiling.

The court deducted periods of defence delay, including communal delay for counsel unavailability, and exceptional circumstances delay arising from the COVID-19 pandemic, an unavailable witness, and the assigned judge's illness.

After deductions, the net delay fell below the presumptive ceiling.

The application for a stay of proceedings was dismissed.

The plaintiff sued the defendant police service for malicious prosecution, negligent investigation, and wrongful arrest after criminal charges against him were withdrawn.

The defendant brought a motion to compel the plaintiff to answer questions refused during discovery, arguing that communications between the plaintiff and his criminal defence lawyer were relevant to whether the charges were terminated in his favour.

The court dismissed the motion, finding the communications irrelevant to the tort claims and protected by solicitor-client privilege, which had not been waived.

The court also declined to order the plaintiff to obtain records for a destroyed cellphone owned by a third party.

The defendant brought a motion to set aside a noting of default in a four-year-old mortgage action.

The plaintiff opposed, arguing the proposed defence lacked merit.

The court considered principles of proportionality and the preference for matters to be determined on their merits.

Given the plaintiff's significant delay in prosecuting the action after the defendant made a substantial payment, and the absence of demonstrated prejudice, the court granted the defendant's motion to set aside the noting of default, allowing the defendant to file a Statement of Defence.

The plaintiffs obtained a default judgment against the defendant following a fatal motor vehicle collision.

The defendant's insurer, Certas, brought a motion to be added as a statutory third party under s. 258(14) of the Insurance Act, having denied coverage to the defendant.

The plaintiffs opposed the motion, arguing Certas delayed and should be bound by the default judgment.

The court granted the motion, finding Certas met the statutory conditions and that the plaintiffs' failure to notify the insurer of their imminent default judgment motion negated any claim of prejudice.

The accused, charged with sexual offences against a child, brought pre-trial applications alleging a section 7 Charter breach for lost evidence and seeking to adduce third-party suspect evidence.

The accused argued that police failed to preserve evidence by not searching his recreational vehicle at the time of the initial complaint, which would have revealed the absence of sex toys.

The court dismissed the lost evidence application, finding the existence of such evidence was speculative and the police decision not to search was reasonable.

The court also dismissed the third-party suspect application, ruling that the complainant's alleged prior statement about her father lacked sufficient connection to the specific crimes to be probative.

The plaintiffs, an investment corporation and its principals, suffered losses from a failed real estate development and sought to recover their unsecured investment in priority to secured creditors.

The secured creditors (defendants) brought motions for summary judgment to dismiss the plaintiffs' claims.

The court dismissed the summary judgment motions, finding complex factual issues, multiple credibility assessments, and a risk of inconsistent findings if partial summary judgment were granted.

The court concluded that the current record was not appropriate for summary judgment and that a full trial was required to resolve the intertwined issues, including allegations of knowing receipt of trust property and conspiracy.

The plaintiff sought an interlocutory injunction to enforce restrictive covenants against a former sales consultant who allegedly used confidential information to start a competing business.

An interim injunction was already in place on consent.

The court dismissed the application for an expanded interlocutory injunction, finding the plaintiff failed to establish a strong prima facie case for relief beyond the existing interim terms, which already enforced the substance of the restrictive covenants.

The applicants sought specific performance after the respondent developer terminated an agreement of purchase and sale for a new build condominium.

The parties initially agreed to a consent order restraining the sale of the property.

The respondent subsequently discovered the applicants had purchased another property shortly after entering the agreement and brought a motion to set aside the consent order and convert the application into an action.

The court found the non-disclosure relevant to the consent order and varied it to continue only pending a formal motion for a certificate of pending litigation.

The court also converted the application into an action, finding material facts in dispute and credibility issues regarding the uniqueness of the property and the parties' intentions that required a trial.

The applicant, who was shot during a home invasion, brought a Charter application to exclude drug evidence seized during a warrantless search of his girlfriend's apartment.

The police obtained a signed consent to search from the girlfriend, but the applicant argued her consent was neither informed nor voluntary.

The court found the consent was validly obtained and that the applicant had only a limited privacy interest in the apartment.

The court concluded there was no breach of section 8 of the Charter, and alternatively, the evidence would not be excluded under section 24(2).

The application was dismissed.

The accused was pulled over for speeding and subsequently arrested for using unauthorized plates under the Highway Traffic Act.

During a pat-down search incident to arrest, the accused admitted to having cocaine in his pocket, leading to the discovery of cocaine, fentanyl, and cash, and a rearrest for possession for the purpose of trafficking.

The accused brought a Charter application alleging breaches of his ss. 8, 9, and 10(b) rights, arguing the initial arrest was arbitrary, the search unreasonable, and there was a delay in providing his right to counsel.

The court dismissed the application, finding the arrest was reasonably necessary for officer safety and investigation, the search was valid, and the brief delay in rights to counsel was justified by the fluid situation.

The defendant in a certified class action moved for partial summary judgment and sought leave under Rule 39.02 to admit an expert psychiatric report obtained after the representative plaintiff was cross-examined on her affidavits.

The plaintiff objected, arguing the defendant split its case and failed to comply with the court-ordered timetable.

The court dismissed the motion for leave, finding the defendant provided no adequate explanation for failing to obtain the evidence earlier and that admitting the late report would cause non-compensable prejudice to the plaintiff given the agreed-upon timetable.

The plaintiffs, a mother and son, were injured in a low-speed motor vehicle accident.

The son claimed the accident caused chronic pain syndrome and depression, disabling him from his employment as a security technician.

The mother claimed the accident caused a left shoulder impairment that prevented her from performing housekeeping and self-care.

The court found both plaintiffs met the statutory threshold under the Insurance Act, having sustained permanent serious impairments of important functions.

The court awarded damages for pain and suffering, past and future income loss, future care, and housekeeping/attendant care.

The applicant, charged with drug trafficking and firearms offences, applied to exclude evidence seized from his basement residence pursuant to a search warrant, alleging breaches of ss. 8 and 9 of the Charter.

He argued the Information to Obtain (ITO) relied on uncorroborated confidential informant tips and contained misleading statements.

The court excised certain overstatements from the ITO but found the remaining information, including corroborated tips and police surveillance, established reasonable and probable grounds for the search.

The court further held that even if a Charter breach occurred, the evidence would not be excluded under s. 24(2) as the police acted in good faith and the societal interest in adjudicating serious drug and firearms charges favoured admission.

The application was dismissed.

The accused, who held federal licences to cultivate marijuana, was charged with drug trafficking offences following a nine-month police investigation sparked by a confidential informant.

Police executed search warrants at the accused's home and licensed grow operation, seizing cannabis, controlled substances, and other evidence.

The accused brought a Charter s. 8 application to exclude the evidence, arguing the Information to Obtain (ITO) lacked reasonable and probable grounds to search those locations.

The court dismissed the application, finding the ITO established a credibly-based probability that evidence would be found at the locations based on surveillance, garbage pulls, and financial tracking.

The court further held that even if a breach occurred, the evidence would not be excluded under s. 24(2) of the Charter.

The respondent father brought a motion to vary an interim parenting order that permitted the applicant mother to relocate with their three children from Oxford County to Windsor.

The father relied on the views and preferences of the two eldest children, obtained through the Office of the Children's Lawyer, who expressed a desire to return to Oxford County.

The court dismissed the motion, finding that the untested views and preferences of two of the three children did not constitute exceptional or compelling circumstances to vary the status quo on an interim basis.

The court ordered a section 112 clinical investigation to provide a comprehensive assessment for trial.

Following a successful appeal from a Small Claims Court decision, the appellant sought costs of $9,454.44, while the respondent proposed $6,000.

The Divisional Court fixed the costs of the appeal at $8,500 inclusive of disbursements and HST, noting the appellant's actual costs were over $42,000.

The applicant mother and respondent father brought competing motions regarding interim exclusive possession of the matrimonial home, parenting, and support.

The parties had a high-conflict separation resulting in the applicant being charged with assault and removed from the home.

The court granted the applicant interim exclusive possession of the home, finding it was in the children's best interests to return to their home and daycare routine.

The court imputed the respondent's income at $266,952 based on prior earnings and non-taxable benefits, ordering interim child and spousal support.

The applicant was granted sole decision-making responsibility, and the respondent's parenting time was ordered to be supervised for three months due to concerns about his alcohol consumption.

The plaintiff brought a motion for summary judgment against the defendants for a debt owed under two private mortgages.

The defendants argued that the interest terms contravened sections 6 and 8 of the Interest Act because interest was prepaid and deducted from the advance, allegedly creating a blended mortgage.

The court found no genuine issue requiring a trial, holding that the mortgages were clearly interest-only and that the interest rate increase was triggered by the passage of time, not default.

Summary judgment was granted in favour of the plaintiff.

The court determined costs following a motion where it was held the plaintiffs did not require leave under s. 215 of the Bankruptcy and Insolvency Act to bring an action against the defendant.

Both parties sought excessive costs and made submissions exceeding the court's page limits, focusing improperly on the merits of the action rather than the procedural motion.

The court rejected the defendant's argument that the costs decision was stayed pending appeal under s. 195 of the Act.

Costs were fixed at $10,000 payable in the cause.