Kevin Whitaker

The defendant brought a motion to strike the plaintiffs’ claim concerning a transfer of real property allegedly gifted by the parties’ parents to the defendant.

The plaintiffs alleged the transfer should be voided based on mental incapacity of the donors, undue influence, and alleged oral promises that the property would pass to them as part of an estate plan.

The court reviewed the test for striking pleadings under Rule 21 and the “plain and obvious” standard.

While certain arguments based on the Statute of Frauds and evidentiary issues were premature at the pleading stage, the court concluded that the plaintiffs lacked standing and that the pleadings could not sustain the relief sought.

The motion to strike was allowed and costs were awarded to the defendant.

The plaintiff brought a Rule 21.01(1)(a) motion seeking a determination that the defendant breached a mutual full and final release by applying to the Criminal Injuries Compensation Board after the settlement.

The defendant cross‑moved for a determination that the release was not breached and that the action should be dismissed.

The court held that the release barred claims for contribution and indemnity against others but did not preclude an application to the Board under the Compensation for Victims of Crime Act.

Such an application is a claim against a statutory compensation fund rather than a claim against another person or corporation.

The defendant’s motion was granted, the plaintiff’s motion dismissed, and costs awarded to the defendant.

The self-represented plaintiff moved for default judgment after the defendants were noted in default.

The court held that the statement of claim was difficult to understand, fundamentally misconceived, and incapable of supporting the legal conclusions and relief sought even if the pleaded facts were proven.

Default judgment was therefore refused under Rule 19.05.

Costs submissions were invited in writing.

In an estate litigation matter challenging the validity of a will, two individuals brought a motion to be added as applicants, and the respondent brought a motion for security for costs.

The court granted leave to add the new parties, finding no prejudice to the respondents that could not be compensated by costs or an adjournment.

The court dismissed the respondent's motion for security for costs, noting that in estate matters, such orders are rarely granted based solely on an applicant residing outside Ontario unless the claim is frivolous or vexatious.

The plaintiffs brought a medical negligence action against the defendant obstetrician following the birth of a child who suffered a catastrophic brain injury resulting in severe cerebral palsy.

The injury was caused by an occult cord prolapse during delivery.

The plaintiffs alleged the defendant failed to recognize risk factors, failed to obtain informed consent, and negligently proceeded with a vacuum-assisted delivery in the delivery room rather than the operating room.

The court dismissed the action, finding that the defendant met the standard of care in his assessment of risk factors, obtained valid consent, and appropriately exercised his clinical judgment in proceeding with the vacuum in response to a non-reassuring fetal heart rate.

Furthermore, the court found that the cord prolapse and resulting injury would have occurred regardless of the defendant's interventions.

The applicants, who were charged with various provincial hunting and fishing offences, brought an application in the Superior Court for a writ of prohibition to stay the proceedings in the Ontario Court of Justice and for an order of mandamus to compel the Crown to consult and accommodate their asserted aboriginal title.

The Superior Court dismissed the applications, holding that constitutional and aboriginal rights defences must be raised in the court having jurisdiction over the charges (the Ontario Court of Justice).

The court also found no basis for mandamus as no demand had been refused.

The plaintiff successfully appealed an order of the motion judge that had set aside a previous order striking the defendants' statement of defence and counterclaim for failure to pay costs.

Following the successful appeal, the parties agreed on costs for the leave to appeal and the appeal itself, but disputed the quantum of costs for the proceedings before the motion judge.

The Divisional Court declined to simply adopt the quantum previously awarded to the defendants by the motion judge, instead increasing the amount to reflect the time spent, responsibility undertaken, and the result that should have been achieved.

The court awarded the plaintiff total costs fixed at $50,000 all-inclusive.

The Attorney General brought a motion for a preservation order under the Civil Remedies Act, 2001, regarding $205,100 in Canadian currency seized by police during a domestic assault arrest.

The respondents opposed the motion, arguing the police officers' lay opinion evidence was inadmissible and the Crown failed to establish reasonable grounds.

The court found reasonable grounds to believe the currency was proceeds of unlawful activity, noting the money was bundled, tested positive for controlled substances via a canine sniff, and the respondents' explanation for the cash was not credible.

The preservation order was granted.

The applicant commercial landlord locked the respondent tenant out of the premises, alleging breach of lease.

The dispute centered on the interpretation of a rent-free agreement intended to compensate the tenant for renovations.

The court agreed with the tenant's interpretation, finding the tenant was not in default, and alternatively held that the tenant would be entitled to relief against forfeiture.

The court ordered the landlord to restore possession to the tenant, pay compensation for losses resulting from the lockout, and pay fixed costs.

The self-represented appellant appealed a Master's order that set aside a noting in default, struck portions of her statement of claim for sexual harassment and discrimination, and ordered costs against her.

The Superior Court of Justice applied the standard of review for appeals from a Master, finding no errors of law or palpable and overriding errors of fact.

The appeal was dismissed with costs awarded to the respondents.

The defendant appealed a Master's order granting leave to amend the statement of claim to add proposed contractor defendants in a trip and fall action after the limitation period.

The court held that the applicable appellate standard was correctness for legal error, with deference on factual and mixed findings absent palpable and overriding error.

Applying the add-party framework under Rule 5.04(2), the court found the Master properly identified and applied the governing principles, including the discretionary nature of the remedy and the plaintiffs' due diligence evidence.

The appeal was dismissed and costs were awarded to the respondents.

The applicant tenant sought a declaration that it retained a right to renew a commercial lease and had properly exercised that option.

The court held that the renewal option had already been spent, the tenant had not provided notice in strict compliance with the lease, and the tenant had been in default for most of the term.

The court further refused relief against forfeiture because the defaults resulted from the tenant's own deliberate acts rather than circumstances beyond its control.

The application was dismissed with agreed costs to the successful landlord.

The plaintiffs sought to preserve assets allegedly traceable to funds stolen by a former controller and bookkeeper.

After disclosure and a Mareva injunction, the defendants asserted that they lacked sufficient funds to pay expenses and legal counsel.

Applying the four-part test for variation of freezing orders, the court held that the defendants failed to provide reliable financial evidence, failed to establish other assets were unavailable, and failed to show the frozen assets were from a non-proprietary source.

The motion was dismissed, with written costs submissions invited.

On a summary judgment record, the court decided a federal employment dispute concerning entitlement to vacation pay for a commission-only employee under the Canada Labour Code.

The plaintiff argued for vacation pay in addition to commissions, while the defendant maintained that the parties had an enforceable agreement permitting vacation pay to be drawn from commission earnings.

The court held that nothing in the Code prohibited such an arrangement, provided the statutory formula of 4% or 6% of yearly compensation was met.

Finding the agreement enforceable, the court dismissed the action and awarded the defendant $20,000 in costs.

The plaintiff bank moved for judgment against a guarantor under a written guarantee and an executed consent to judgment held in escrow.

The responding party argued, in substance, that the bank was negligent or otherwise responsible for failing to achieve an anticipated return on the sale of secured property.

The court held that the express terms of the guarantee displaced any duty of care to the guarantor regarding liquidation of the security and permitted the bank to compromise or enforce remedies in any order it chose.

Judgment was granted for $738,150 plus pre-judgment interest, with costs of $20,000 inclusive.

The applicant sought to compel the respondent school board to comply with s. 41(1) of the Expropriations Act after expropriated lands intended for a school were proposed to be conveyed to a municipality for a recreation facility and seniors’ centre use integrated with the school project.

The applicant argued that once the land was no longer needed for the original expropriation purpose, the respondent was required to provide notice and an election to reacquire the property.

The court held that the board had not abandoned the lands and that the proposed recreational and related facilities fell within the stated purpose of operating a school and related amenities, particularly given the broad provisions of the Education Act.

The application, including the request for temporary injunctive relief, was dismissed, and the respondent was awarded costs.

The plaintiff brought a summary judgment motion seeking a declaration of wrongful dismissal and damages in lieu of reasonable notice, together with unpaid commissions.

The court held that partial summary judgment was appropriate because the material facts concerning employment history, income, and circumstances of discharge were largely undisputed, while the remaining counterclaim and oppression issues did not affect the dismissal determination.

The asserted grounds for cause, namely appearing at a trade show under another business name and failing to "redouble" efforts, did not amount to cause.

The court declared the dismissal wrongful and held the plaintiff was entitled to one year's salary, with costs fixed at $20,000.

On a summary judgment motion, the moving defendants argued that claims arising from alleged overpayments, fraud, breach of fiduciary duty and oppression were barred by a two-year limitation period.

The court held that the plaintiffs' action, as framed, was an action to enforce a prior Court of Appeal order and that no limitation period applied to such enforcement proceedings.

Judgment was granted to permit recovery of the overpayments made by the trustee to itself and to the law firm in the amounts previously determined.

In a later amended endorsement, the court clarified the earlier ruling and accepted the responding parties' position on the identified clarification issues.

In a motion arising from an action to recognize a North Carolina judgment, the moving party sought dismissal or a permanent stay of an unrelated counterclaim for lack of jurisdiction, or alternatively on forum non conveniens grounds.

The court held that commencing a recognition action did not amount to attornment to Ontario jurisdiction over the unrelated counterclaim.

Applying the Van Breda framework, the court found no real and substantial connection between the counterclaim and Ontario.

In the alternative, the court held that Ontario was forum non conveniens because North Carolina law applied, the witnesses were in the United States, and there was a risk of conflicting judgments.

The defendant moved to stay an Ontario negligence and contract action arising from alleged defects in industrial thermostats supplied under an international commercial relationship.

The moving party relied on a contractual clause submitting to the jurisdiction of the English courts and argued that Ontario lacked jurisdiction or, alternatively, that England was the clearly more appropriate forum.

Applying the presumptive connecting factors framework, the court held that the alleged torts were committed in Ontario and that Ontario therefore had jurisdiction.

The court further held that the moving party failed to establish forum non conveniens or to show that the English courts should displace the plaintiff's chosen forum.