Kelly C. Tranquilli

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 plaintiff brought a motion to strike the defendants' statement of defence in an action for a construction debt and breach of trust.

The defendants failed to produce a proper affidavit of documents, failed to attend scheduled examinations for discovery, and offered no credible commitment to remedy their non-compliance over the course of a year.

Applying the principles from Falcon Lumber, the court found the defendants' non-compliance to be deliberate, material, and unequivocal.

The court exercised its discretion to strike the statement of defence and awarded the plaintiff costs thrown away.

The estate trustee brought an application for directions regarding a will that granted the respondent a 'home' for his 'lifetime' or until he was 'no longer living' there.

The court had to determine whether the will granted a life estate or a licence, and whether the condition of 'no longer living' in the home was void for uncertainty.

The court found that the will granted a licence to occupy the home, not a life estate.

Furthermore, the condition subsequent 'no longer living' was found to be void for uncertainty.

Because the interest was a licence, the failure of the condition subsequent caused the entire gift to fail, and the property was ordered to be sold with proceeds going to the residual charity beneficiary.

The plaintiff abattoir sued the provincial government for negligence, trespass, and conversion arising from the 19-month suspension of its licence and detention of meat products following an investigation into the processing of uninspected and dead animals.

The court dismissed the action, finding that the provincial regulator did not owe a private law duty of care to the plaintiff, as its statutory mandate was to protect public health.

Even if a duty existed, the regulator did not breach the standard of care given the extraordinary circumstances of concurrent criminal investigations, nor did its actions cause the plaintiff's business losses.

The applicants sought leave to appeal a decision of the Local Planning Appeal Tribunal that upheld a zoning by-law amendment permitting a Supervised Consumption Facility.

The applicants argued the Tribunal erred in law by finding the amendment conformed to the 1989 Official Plan.

The Divisional Court dismissed the application for leave, finding the proposed appeal raised a question of mixed fact and law, there was no reason to doubt the correctness of the Tribunal's decision, and the issue was not of sufficient general or public importance.

Following the dismissal of the defendants' motions for summary judgment, the successful plaintiff sought costs of $11,000.

The Condominium defendants argued that costs should not be awarded due to pleading deficiencies or should be in the cause.

The court found that this case fell within the exceptional class of cases where costs in the cause is warranted, as the merits were yet to be adjudicated and the motion materials would be useful at trial.

Costs were ordered in the cause.

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.

The respondent brought a motion to change his spousal support obligation due to job loss and financial difficulties.

The applicant brought a cross-motion seeking to stay the respondent's motion until he complied with a prior final order regarding spousal support arrears and joint lines of credit.

The court dismissed the applicant's motion to stay, finding the respondent's non-compliance was not deliberate or wilful, and directed the respondent's motion to change to proceed to trial, as oral evidence was necessary to determine if a material change in circumstances warranted variation.

The plaintiff sought to enforce a verbal agreement for a $115,000 loan and $844.90 for airfare against her former son-in-law, the defendant.

The defendant denied the existence of any loan or agreement to repay the airfare.

The court found no legally enforceable agreement, noting vague, inconsistent, and unreliable evidence from the plaintiff and her daughter, and the defendant's admission of having sworn a false affidavit in prior matrimonial litigation.

The claim was dismissed due to insufficient evidence to establish a contract.

This application and counter-application concerned ownership of a 95-acre scout camp property acquired through historical transfers dating back to 1960.

The court held that the unincorporated association lacked legal capacity to be either settlor or beneficiary of a private trust and therefore could not claim a beneficial or proprietary interest in the land.

Applying trust principles, the court found the 1960 conveyance created a valid charitable purpose trust for the promotion of youth welfare through scouting, but held that the 1983 transfer vested absolute legal title in the respondent incorporated body.

In the alternative, the court held that, if absolute title had not passed, the charitable purpose trust continued.

The application was dismissed and the counter-application was allowed in part.

The children's aid society brought a status review application seeking to place three children in the permanent custody of their paternal grandparents.

The children had been in the grandparents' care for over two years due to the parents' substance abuse and instability.

The mother opposed the order but failed to attend the trial or demonstrate meaningful progress in rehabilitation.

The court found that the grandparents provided safe, stable, and loving homes and that the parents were unlikely to resume their parenting roles in the foreseeable future.

The court granted custody to the grandparents with supervised access for the parents.

The applicant father sought sole custody of the parties' three children following a highly toxic separation.

The respondent mother sought sole custody and a contempt order against the father for withholding access.

The court found that the parents' high conflict and the mother's instability regarding housing and potential substance abuse made joint custody unworkable.

Applying the best interests of the child test under section 24 of the Children's Law Reform Act, the court granted sole custody to the father and ordered supervised parenting time for the mother, while dismissing the mother's requests for a contempt finding and a police assist order.

The Society sought an order placing the child in extended society care with no access by the parents.

The court previously placed the child in extended society care but adjourned the issue of access to trial.

The court found that despite the parents' inconsistencies and personal struggles, the child had a positive and meaningful relationship with both parents.

The court ordered a minimum of three supervised direct access visits per year for each parent, along with email updates, finding that this would maintain the child's connection to her birth parents and indigenous heritage without unduly impairing her future opportunities for adoption.

The defendant brought a motion for summary judgment to dismiss a claim by his late mother's estate.

The estate alleged the defendant failed to pay his mother a one-third share of crop income from a farm property as required by his late father's will.

The defendant argued that when he stopped farming, he and his mother agreed she would receive one-third of the rental income instead, which she accepted for 18 years.

The court found the estate's evidence relied on inadmissible hearsay from interested beneficiaries that lacked threshold reliability and corroboration under s. 13 of the Evidence Act.

The court concluded the mother had agreed to or acquiesced in the changed payment arrangement and granted summary judgment dismissing the action.

The Children’s Aid Society brought a status review application seeking extended society care for two children, E.P. and M.P., who had been in temporary care for approximately 1100 days.

The mother, father, and maternal grandmother (respondents) opposed this, proposing the children be returned to their care subject to Society supervision.

The court found the children continued to be in need of protection due to the respondents' ongoing addiction and mental health issues.

After evaluating all plans of care, the court determined that extended society care was in the children's best interests, given their complex behavioural and educational needs, tumultuous placement history, and the respondents' fragile recovery and inability to provide sustained safe care.

Access for all respondents was ordered to continue at the Society's discretion, subject to the children's wishes.

The applicant sought an interim non-depletion order regarding an art collection, alleging a joint family venture and unjust enrichment.

The court found that section 40 of the Family Law Act did not apply because there was no evidence that depletion would impair the spousal support claim.

The court also considered whether a Mareva injunction or an interim preservation order under the Rules of Civil Procedure was appropriate, but dismissed the motion without prejudice because the applicant failed to provide sufficient evidence regarding the particulars of the art collection, proprietary claims, and risk of depletion.

The appellant appealed his conviction on several offences, including unlawful confinement, assault, uttering death threats, mischief, and breaches of probation, stemming from two incidents in March and April 2016.

The appeal raised two main issues: whether the trial judge erred in limiting cross-examination of the complainant regarding a prior domestic altercation on the basis of the collateral fact rule or relevance, and whether the trial judge erred in assessing the complainant's credibility.

The appellate court found that the trial judge did not err in limiting cross-examination, as the collateral fact rule was not engaged and the questioning was deemed to be of too slight significance.

The court also upheld the trial judge's assessment of the complainant's credibility, noting that the trial judge was alive to inconsistencies and provided reasons for finding the complainant credible, and that the core of her allegations remained intact.

The appeal was dismissed.