Kevin Whitaker

A surviving spouse sought an advance equalization payment of $4.5 million from the estate of her deceased husband under the Family Law Act or, alternatively, partial summary judgment.

The motion was opposed by several defendants asserting potential claims against the estate and challenging their standing and the appropriateness of the advance.

The court held that the equalization entitlement between spouses is personal under the Family Law Act and that the defendants were neither proven creditors nor beneficiaries.

Applying the three-part test for advance equalization payments from Laamanen v. Laamanen, the court found a reasonable need for litigation funding, little doubt of entitlement to at least the requested amount, and that granting the advance was just in the circumstances.

A volunteer at a community radio station alleged harassment by another volunteer and sought an injunction requiring the station to enforce its harassment policies, along with damages.

The court considered whether it should intervene in the internal affairs of a private volunteer organization that had not strictly followed its written harassment procedures.

Applying jurisprudence governing judicial oversight of voluntary associations, the court held that internal decision-making in such organizations attracts deference and intervention should be exercised cautiously.

Although the station did not strictly comply with its policies, it acted in good faith, made repeated efforts to resolve the dispute, and substantially complied with the spirit of its procedures.

In the circumstances, judicial intervention was not warranted.

Following earlier endorsements granting relief to the applicant in an estate dispute, the court determined the issue of costs.

The judge reviewed the parties’ written submissions, including settlement positions, and applied the discretionary factors under Rule 57 of the Rules of Civil Procedure.

Considering the expectations of the parties in the event of an unsuccessful outcome, the court held that the applicant was entitled to recover her costs.

The costs were ordered payable out of the estate and fixed in a specified amount including taxes and disbursements.

The plaintiffs moved for a finding of civil contempt against a judgment debtor and sought orders under Rule 60.18(6) of the Rules of Civil Procedure to examine members of the debtor’s family in aid of execution.

They alleged breaches of several pre‑judgment orders and of a post‑judgment order requiring disclosure of financial information, as well as refusals to answer questions during a debtor examination.

The court held that orders made prior to judgment concerning liability and damages do not generally serve a purpose in post‑judgment execution proceedings and cannot ground a contempt finding once judgment has been entered.

The court further found that the alleged breach of the post‑judgment disclosure order was not proven beyond a reasonable doubt to be deliberate and willful.

Because the plaintiffs had not first sought an order compelling answers to disputed questions or exhausted available enforcement steps, the court also refused to order examinations of family members.

The applicant sought a declaration under s. 140(1) of the Courts of Justice Act that the respondent was a vexatious litigant.

The respondent had initiated numerous actions against medical professionals, regulatory investigators, and opposing counsel, including re‑litigating a medical malpractice claim previously dismissed on summary judgment.

The court found the respondent’s conduct exhibited multiple indicators of vexatious proceedings, including repeated litigation of decided issues, actions lacking a cause of action, and litigation against opposing counsel.

Considering the pattern of abusive litigation and the need to protect the court’s process and potential defendants, the court declared the respondent a vexatious litigant.

The respondent was prohibited from commencing further proceedings without leave of the Superior Court of Justice.

The defendant brought a motion to strike the plaintiff's claim under Rules 21 and 25.

The plaintiff, who had several actions assigned for case management and faced a pending vexatious litigant motion, failed to appear at the hearing.

The court granted the motion to strike on three grounds: the evidence relied upon was inadmissible under section 36(3) of the Regulated Health Professions Act, 1991; there was no allegation of bad faith to overcome immunity under section 38; and no duty of care was pleaded.

The claim was struck without leave to amend, and costs of $8,000 were awarded to the defendant.

The plaintiffs brought an action for rescission of a master franchise agreement and damages under the Arthur Wishart Act (Franchise Disclosure), 2000.

The defendants failed to provide a proper disclosure document and breached their duty of fair dealing.

The trial proceeded in the absence of the defendants.

The court granted the plaintiffs' claims, declaring the agreement rescinded and awarding damages for the franchise fees, operating losses, unpaid fees, and breach of the duty of fair dealing, along with costs.

The plaintiff brought a motion seeking default judgment and to strike the defendant’s defence.

The defendant brought a motion under Rules 21 and 25 of the Rules of Civil Procedure to strike the claim without leave to amend.

The court found the plaintiff had filed no evidentiary record and provided no basis for default or summary judgment.

The claim was struck on multiple grounds, including statutory inadmissibility of the plaintiff’s proposed evidence under the Regulated Health Professions Act, absence of allegations overcoming statutory immunity, and failure to plead a duty of care.

The court concluded that the claim was fundamentally inconsistent with settled legal principles and declined to grant leave to amend.

The defendants brought a motion for summary judgment seeking dismissal of an action alleging breach of an employment contract, breach of fiduciary duty, wrongful resignation, and intentional interference with economic relations after a senior employee left to join a competitor.

The court found that the record contained extensive contested evidence, numerous factual disputes, and significant credibility issues relating to the scope of contractual obligations, alleged non-solicitation duties, and the conduct of the parties after resignation.

Applying the principles governing summary judgment, the court concluded that the issues required a full trial to properly assess the evidence and competing theories of liability.

The motion was therefore dismissed.

Costs were awarded to the responding party.

Following the dismissal of a third party claim, the third party defendant sought an award of costs.

No responding submissions were filed despite direction from the court.

After reviewing the submissions and the factors under Rule 57 of the Rules of Civil Procedure, the court fixed costs in favour of the third party defendant.

Costs were ordered payable forthwith by the defendants.

Following the dismissal of the plaintiff's claim regarding a parking space, the successful defendants sought costs.

The court considered the factors under Rule 57, including the reasonable expectations of the unsuccessful party and the proportionality of the value of the parking space in dispute.

The defendants were awarded costs fixed at $28,000, inclusive of interest and taxes.

Following earlier rulings on a derivative leave motion in estate litigation, the court addressed outstanding procedural directions and the issue of costs for five related motions.

The plaintiffs sought substantial indemnity costs exceeding $144,000 for work connected primarily to the derivative issues.

Applying Rule 57 of the Rules of Civil Procedure and the proportionality principles discussed in Boucher v. Public Accountants, the court held that the requested amount far exceeded the reasonable expectations of the unsuccessful parties for a one‑day motion.

Substantial indemnity costs were denied.

The court fixed costs payable by the defendants jointly and severally at $55,000 inclusive of taxes and interest.

A solicitor brought an application to set aside a consent order referring the solicitor’s account to an Assessment Officer for assessment.

The solicitor argued the Assessment Officer lacked jurisdiction and that consent did not prevent the court from setting aside the order.

The court held that the only dispute raised by the client concerned the quantum of the account and that the assessment properly fell within the officer’s jurisdiction under the Courts of Justice Act.

The interests of justice did not justify setting aside the consent order.

The application was dismissed and the client was awarded costs.

A long‑serving employee brought an action for wrongful dismissal and oppression after being terminated for cause following a drunk driving accident involving the employer’s vehicle.

The employee had consumed alcohol during a lunch break, drove the employer’s truck without authorization, and caused a serious rollover collision resulting in severe injuries and a criminal conviction.

The court conducted a contextual analysis of just cause, considering the employee’s 23 years of service and clean disciplinary record against the seriousness of the misconduct.

The court held that drunk driving while operating the employer’s vehicle during the course of employment constituted serious misconduct that fundamentally undermined the employment relationship.

The wrongful dismissal claim was dismissed and the court declined to address mitigation or the oppression claim.

The appellant appealed a decision of the Consent and Capacity Board under the Health Care Consent Act confirming that he was incapable of consenting to antipsychotic medication and maintaining his status as an involuntary patient.

The court applied the reasonableness standard of review, emphasizing the Board’s expertise in assessing capacity and mixed questions of fact and law.

The court found the Board provided procedural fairness, appropriately considered the evidence including hearsay, and reasonably relied on the psychiatrist’s testimony.

The Board correctly applied the two‑part statutory test for capacity, finding the patient unable to understand relevant treatment information or apply it to his circumstances.

The appeal was dismissed.

Following the dismissal of the appellant's appeal, the Divisional Court issued a supplementary endorsement regarding costs.

The appellant was ordered to pay the respondent's costs of the appeal, fixed at $5,000 inclusive of disbursements plus HST.

The costs were directed to be paid to Legal Aid Ontario.

The Divisional Court issued a supplementary endorsement fixing the costs of the appeal.

Costs were fixed in the amount of $9,000 inclusive of disbursements, plus HST, payable forthwith by the respondents to the appellant.

The Divisional Court issued a supplementary endorsement fixing the costs of the appeal.

The respondent was ordered to pay the appellant $10,000 inclusive of disbursements, plus HST.

The court also granted the parties leave to provide written submissions on whether the trial judge's award of costs of the trial should be varied.

The appellant, a junior lawyer, was summarily dismissed by her employer after writing a highly critical letter regarding office administration and compensation, which included an accusation of dishonesty and negligence.

The trial judge found the letter constituted insolence justifying summary dismissal.

On appeal, the Divisional Court held that the trial judge committed a palpable and overriding error by failing to apply the contextual approach mandated by McKinley v. BC Tel.

Applying the contextual approach, the Court found the single incident of harsh communication did not irreparably destroy the employment relationship.

The appeal was allowed and damages in lieu of reasonable notice were awarded.

The appellant sought to appeal a final order striking her two Superior Court proceedings, which claimed damages of $8.2 million and $100,000.

The Divisional Court found that an appeal of a final order in these amounts falls within the exclusive jurisdiction of the Court of Appeal.

Consequently, the appeals were transferred to the Court of Appeal.