Kirkor Avedis Apel

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal.

No costs were ordered as the respondent did not file any materials.

The applicant, 2271047 Ontario Ltd. (Ecotech), brought a motion for summary judgment against the respondent, Window City Industries Inc., alleging breach of Minutes of Settlement.

Ecotech claimed Window City failed to "undertake best efforts" in collecting a default judgment against third parties and breached its contractual duty of good faith by not conducting examinations in aid of execution.

The court dismissed the motion for summary judgment, finding genuine issues for trial regarding the interpretation of "best efforts" the good faith obligations of the parties, the appropriate remedy, and the effect of a release clause in the settlement agreement.

The applicant, a physician, brought an application for judicial review of a decision by the Health Professions Appeal and Review Board.

On preliminary motions, the applicant sought to introduce additional evidence consisting of a summary of the underlying committee decision posted on the College's website.

The Board sought to add the complainant as a party and to seal portions of the record containing the applicant's conduct profile.

The court granted all motions, allowing the additional evidence as context for the judicial review, adding the complainant as a necessary party, and sealing the conduct profile to maintain the integrity of the Board's process.

The accused was charged with sexual assault and sexual interference against his young niece.

At the preliminary inquiry, the child claimed to have no memory of the events or her prior police interview.

The Crown sought to admit her video-recorded police interview under the principled exception to the hearsay rule.

The court found the statement met the criteria for necessity and threshold reliability and admitted it into evidence.

Applying the W.(D.) framework, the court accepted the child's statement over the defence evidence and found the accused guilty on both counts.

At a status hearing under Rule 48.14, the defendants sought dismissal of a personal injury action for delay following prolonged inactivity and incomplete document production.

The court reviewed the transition from the former Rule 48.14 to the revised rule effective January 1, 2015 and considered whether the plaintiff had shown cause why the action should not be dismissed.

Although the plaintiff’s delay in delivering an affidavit of documents was inexcusable, the court found no demonstrated prejudice to the defendants and noted that procedural remedies such as motions for further and better disclosure had been available.

Considering the relatively modest delay and the policy reflected in the amended rule extending the time to set an action down for trial, the court permitted the action to proceed.

The court ordered sworn affidavits of documents and additional productions within 45 days and directed that a pre‑trial conference be scheduled.

The applicant, a bus driver, was terminated after being observed urinating in front of his bus and committing traffic violations.

He alleged discrimination on the basis of disability, claiming that diuretic medication for his high blood pressure caused an urgent need to urinate.

The Tribunal found that while the applicant had a disability (hypertension), he failed to establish a link between the medication and his urgent need to urinate.

However, the Tribunal concluded that the respondent's attempt to conceal its knowledge of the applicant's medication indicated that his disability was a factor in the termination decision.

The Tribunal awarded $15,000 for injury to dignity, feelings, and self-respect, but denied lost wages and reinstatement because the applicant would have been terminated regardless of the Code breach.

The applicant brought a motion and application to set aside a 2009 order declaring the respondent sole owner of a Toronto property and directing rectification of the land titles register.

The earlier order had been obtained without notice to the applicant.

The court found that the respondent failed to make full and fair disclosure of material facts regarding her ability to locate and communicate with the applicant at the time the order was obtained.

As a result, the order was set aside under Rule 39.01(6) and the parcel register was directed to be restored to its prior state, with remaining ownership issues to be determined at trial.

Following a summary judgment granting the plaintiff lender judgment and dismissing the defendant borrower’s counterclaim alleging fraud, the court addressed costs.

The plaintiff sought substantial indemnity costs based on contractual mortgage provisions and unfounded allegations of fraud made in the defence.

Applying Rule 57.01 of the Rules of Civil Procedure and authorities regarding allegations of fraud, the court held that unproven accusations of fraud justified costs on a substantial indemnity scale.

However, the court reduced the hours claimed as excessive given the simplicity of the matter.

Total costs of $18,450.66 inclusive of HST and disbursements were awarded.

The plaintiff lender moved for summary judgment to recover a mortgage deficiency following a power of sale.

The defendant admitted signing the mortgage but alleged she had been used as a dupe in a fraudulent mortgage scheme and asserted defences including non est factum, negligent lending, and breach of fiduciary duty, while advancing a counterclaim for damages.

The court held that the defendant produced no evidence supporting the alleged fraud or any involvement by the lender or its employees.

The record contained only speculative allegations and the defendant failed to put her best foot forward with admissible evidence.

Summary judgment was granted enforcing the mortgage and dismissing the counterclaim.

Following successful motions by the defendants for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure, the court addressed the appropriate costs awards for those motions.

The defendants sought costs on a partial indemnity basis exceeding $11,000 and $16,000 respectively.

The plaintiff argued that the requested amounts were excessive for motions of this nature.

Applying the principles under section 131 of the Courts of Justice Act and Rule 57.01, and emphasizing proportionality under Rule 1.04(1.1), the court concluded the requested amounts were excessive given the straightforward issues and the partial success achieved by the defendants.

The court awarded costs of $7,000 inclusive of HST and disbursements to each set of moving defendants.

The appellant real estate agent sued the respondent vendor for unpaid commission and brought a motion under Rule 45.02 to have the proceeds of the sale, held in trust by the vendor's solicitor, paid into court pending trial.

The master granted the motion, but the Divisional Court allowed the appeal.

The Court of Appeal dismissed the appellant's appeal, clarifying that while Rule 45.02 does not require a plaintiff to claim a proprietary right to a specific fund, the plaintiff must claim a legal right to the fund.

Because the appellant's claim was for damages for breach of contract rather than a legal right to the specific trust funds, the test for payment into court was not met.

The appellant appealed a conviction for impaired operation after pleading guilty, arguing the plea was involuntary and constituted a miscarriage of justice.

He asserted his judgment was impaired by alcohol, lack of sleep, anxiety, and pressure arising from being held in custody pending bail.

Fresh evidence was heard from duty counsel, Crown counsel, a toxicologist, and the appellant.

The court held that the appellant understood the nature and consequences of the plea, received competent legal advice, and voluntarily chose to plead guilty despite advice not to do so.

Stress and desire for immediate release did not render the plea involuntary.

The appeal was dismissed and the conviction upheld.

The appellant appealed a Summary Conviction Appeal Court decision that set aside an acquittal.

The trial judge had found state conduct unreasonable because the police did not take commission evidence before the victim passed away shortly after the charge was laid.

The Court of Appeal dismissed the appeal, holding that there was no evidence the police delayed their investigation or acted unreasonably, and the exception in R. v. Khelawon did not apply.

The appellants appealed a summary judgment enforcing a guarantee and mortgage given as security for legal fees exceeding $350,000.

The appellants had admitted signing the security documents after receiving independent legal advice.

The Court of Appeal found no error in the motion judge's conclusion that there was no genuine issue for trial, noting that an outstanding claim against the law firm was not a defence to the enforcement of the guarantee and mortgage.

The appeal was dismissed.

The moving party sought to set aside a Registrar's order dismissing his appeal for delay.

The underlying appeal concerned an assessment of unpaid legal fees owed to the responding party.

The Court of Appeal dismissed the motion, finding that the moving party failed to provide a satisfactory explanation for the delay after retaining counsel, failed to perfect the appeal within an agreed-upon extension, and took no steps to perfect the appeal in the months following the dismissal.

The appellant was injured in a home invasion and awarded $7,000 by the Criminal Injuries Compensation Board, which rejected his claim of complete disability.

The appellant appealed, arguing the Board erred in law, failed to record the proceedings, and sought to introduce fresh evidence.

The Divisional Court dismissed the appeal, finding no statutory obligation to record the proceedings, rejecting the fresh evidence as mere argument, and concluding the Board's decision was supported by the medical evidence.