Kelly C. Tranquilli

The respondent father (W.F.) sought costs on a substantial indemnity basis following his successful motion for an interim variation of a parenting order, which granted him primary residency of the child E.F. The applicant mother (S.F.) opposed costs, arguing divided success and financial hardship.

The court found the respondent presumptively entitled to costs, noting the applicant's position was inconsistent with the Voice of the Child Report.

Balancing the respondent's success, settlement offers, and the applicant's ability to pay, the court fixed costs at $1,200, payable by the applicant within 120 days.

The appellant, Brandon Mott, appealed a Consent and Capacity Board decision that found him incapable of consenting to anti-psychotic medication.

Mott, diagnosed with schizophrenia, denied his illness and argued the Board failed to consider reported side effects and the role of substance use in his mental health history.

The Board had concluded Mott was unable to appreciate the foreseeable consequences of declining treatment due to his inability to recognize the manifestations of his mental condition, a finding upheld by the court.

The appeal was dismissed, with the court finding no palpable and overriding error in the Board's decision.

The third-party insurer, United States Liability Insurance Company, brought a summary judgment motion to determine its duty to defend its insureds, Harold Douglas Eakins and Jack-O’s Sports Bar, in a personal injury claim.

The plaintiff alleged over-serving of alcohol, a fall from a barstool, and a subsequent forcible removal and assault by the proprietor.

The insurer relied on broad assault and battery exclusion clauses in its commercial general liability and liquor liability policies, which explicitly included negligence in their definitions of assault and battery.

The court found that the plaintiff's pleadings, even as amended, could not be severed from the factual matrix involving assault or battery as broadly defined in the policy.

Consequently, the court granted summary judgment, dismissing the third-party claim against the insurer, finding no duty to defend.

The plaintiffs sought summary judgment in a simplified procedure action for breach of contract arising from a failed residential real estate transaction.

The defendant purchasers counterclaimed, alleging misrepresentation regarding an "in-law" suite and frustration of contract due to market changes.

The court dismissed the summary judgment motion, finding that without cross-examinations (not permitted under Rule 76), it could not weigh evidence or make credibility findings, and there were gaps in the damages evidence.

The court also granted leave to amend the plaintiffs' claim to correct a defendant's name.

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 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 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 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 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.

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, 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.

This decision addresses a costs motion arising from two guardianship applications that became moot upon the death of the incapable person.

The applicant sister and respondent brother, who were in a bitter dispute over their late father's guardianship, sought costs from each other.

The court found that the applicant was motivated by her father's best interests and did not act unreasonably to cause unnecessary costs, thus dismissing the respondent's claim for substantial indemnity costs against her.

However, the court also found no principled basis to award the applicant her costs, noting that neither party was entirely blameless and the underlying issues were not judicially determined.

Ultimately, no costs were awarded to either party.

The plaintiff moved to strike the jury notice in a 10-year-old personal injury action due to ongoing delays caused by the COVID-19 pandemic.

The plaintiff proposed a virtual, non-jury trial in tranches for earlier, more expeditious, and less costly resolution.

The defendants opposed, arguing for a "wait and see" approach to preserve their substantive right to a jury trial.

The court granted the plaintiff's motion, finding that the continued delay constituted real and substantial prejudice, especially given the action's tortured history and the uncertainty of civil jury trial resumptions.

The court emphasized that striking the jury notice was a proportionate response to mitigate delays and provide timely access to justice, aligning with appellate guidance that delay alone can justify striking a jury notice.

This mid-trial ruling addressed whether the plaintiffs could pursue claims for housekeeping and attendant care losses.

The defendant argued these claims were eliminated during discovery and would cause prejudice.

The court found that the discovery answer regarding "economic component" lacked precision, and the defendant had sufficient notice through pre-trial memoranda and the occupational therapist's report.

The court granted the plaintiffs leave to lead evidence on these past care claims, finding no prejudice to the defendant.

The parties brought competing motions for interim relief concerning the matrimonial home, child support, spousal support, and financial disclosure.

The court ordered the immediate sale of the matrimonial home, finding the financial arrangement unsustainable for the respondent and the sale inevitable.

The applicant's motions for interim exclusive possession, interim child support, and interim spousal support were dismissed without prejudice due to insufficient evidentiary record and lack of full financial disclosure.

The court also declined to compel the applicant to obtain further business valuations or income analysis reports at his expense, noting the respondent could obtain her own.

The defendants, comprising law firms and solicitors, brought two summary judgment motions seeking to dismiss professional negligence claims brought against them by the plaintiffs.

The plaintiffs alleged negligence for failing to advise them of their rescission rights under the Arthur Wishart Act (Franchise Disclosure) 2000.

The court dismissed both motions, finding that there were genuine issues requiring a trial regarding the scope of the retainers, the duty of care owed by the defendants, and causation.

The court emphasized the need for a trial to assess witness credibility and the necessity of expert evidence in professional negligence claims, and declined to grant partial summary judgment due to the interconnectedness and complexity of the claims.