Charles A. Painter

The court dismissed a motion to strike the jury notice following closing arguments in a negligence trial arising from a motor vehicle accident.

The plaintiffs objected to 19 statements made by defence counsel in his closing address, alleging they were inflammatory, invited improper reasoning, misstated the law, and appealed to emotion.

The court found some statements objectionable but determined that corrective jury instructions were sufficient to remedy any prejudice, making discharge of the jury unnecessary.

The jury subsequently found the defendants liable in negligence, apportioning liability at 93% to one defendant and 7% to the other.

Three consolidated civil actions arose from a motor vehicle accident on April 22, 2016, near Stouffville, Ontario, involving three vehicles.

The defendant Rae argued he owed no duty of care to the plaintiffs.

The court ruled on the duty of care issue at the close of the plaintiffs' case, finding that Rae owed a duty of care to all plaintiffs as a driver to other users of the roadway.

The court applied established jurisprudence recognizing the duty of care owed by drivers to other road users and rejected Rae's arguments based on the distinction between nonfeasance and misfeasance, finding that driving is a heavily regulated activity and that the duty of care exists regardless of whether specific statutory obligations apply to the particular conduct alleged.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff's claim for damages arising from a scooter accident on a municipal road.

The court found that the plaintiff, who was self-represented and did not appear or file materials, failed to establish that the road was in a state of non-repair or that any non-repair caused the accident.

The municipality established statutory defences under the Municipal Act, 2001, including that the pothole was within the minimum maintenance standards.

The action was dismissed and costs awarded to the defendant.

The Court of Appeal for Ontario dismissed motions by tenants Michael Schram and Leslie Mitchell for an extension of time to file a notice of motion for leave to appeal and a notice of appeal regarding the termination of their tenancy and the dismissal of their action.

The court found that the proposed appeals lacked merit and that the justice of the case did not warrant an extension.

The court also dismissed the request for a stay of eviction and awarded costs to the responding parties.

The plaintiff, Blackstone Paving and Construction Limited, sought a stay of the defendant Town of Newmarket’s counterclaim, arguing that the Town’s failure to immediately disclose a settlement agreement with third party R.V. Anderson Associates Limited constituted an abuse of process.

The court found that the settlement did not materially change the litigation landscape or the adversarial relationship among the parties, and thus did not trigger an immediate disclosure obligation.

The application was dismissed, with costs reserved to the outcome of trial.

The Town of Milton brought a motion for summary judgment to dismiss a negligence claim by the plaintiffs, who alleged catastrophic injuries from a motorcycle accident caused by a pothole.

The court dismissed the plaintiffs' claim, finding no genuine issue requiring a trial.

The court ruled that the plaintiffs failed to prove non-repair or causation, and that the Town met the minimum maintenance standards for the road.

The motion was not premature despite incomplete discoveries, as the plaintiffs had ample opportunity to pursue discovery.

Costs were awarded to the Town of Milton.

The defendants brought a motion seeking an assessment of the plaintiff, Ruth Campbell, to determine her capacity to testify at trial due to advancing dementia, and for disclosure of a capacity assessment report obtained by the plaintiffs.

The court granted the assessment for the purpose of determining her ability to testify, but strictly limited the use of the resulting report to a voir dire on her testimonial capacity, prohibiting its use for substantive issues of liability or damages.

The court also ruled that the plaintiffs' capacity assessment report, obtained to determine the need for a litigation guardian, was protected by solicitor-client and litigation privilege and not subject to disclosure.

The appellant, Robert Lepp, sought an extension of time to file a Notice of Appeal from an August 17, 2023 order that dismissed his summary judgment motion and granted the respondent, Mandie Eddie's, cross-motion for defamation, awarding her $550,000 in damages and injunctive relief.

Lepp had failed to file sworn evidence in the original motions.

The Court of Appeal applied the four-factor test for extending time to appeal, considering bona fide intention, length and explanation for delay, prejudice, and merits of the proposed appeal.

The court found Lepp's explanation for delay (prioritizing a "Second Action" to gather evidence for an appeal) unacceptable, noted the lack of merit in his proposed appeal (challenging factual findings without competing evidence), and emphasized the significant prejudice and harm to the administration of justice, including the potential for a mistrial in the ongoing "Second Action." The motion for an extension of time was dismissed with costs.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff's negligence claim as statute-barred under the Limitations Act, 2002.

The plaintiff alleged the municipality negligently issued a building permit in 1981 without conservation authority approval, leading to foundation failure in 2017.

The court found the claim was discovered objectively by 2013 when the plaintiff obtained an engineering report identifying unsuitable fill, and that the 15-year ultimate limitation period had also expired.

The court rejected arguments that the limitation period was tolled by a municipal claims process or by fraudulent concealment, granting summary judgment and dismissing the action.

The Town of Aurora was entirely successful on a contempt motion against the self-represented plaintiff.

The Town sought costs of $16,200.98 on a full indemnity basis.

The court awarded costs of $12,000 on a full indemnity basis, noting the plaintiff's prior involvement in contempt motions and the need to deter contemptuous behaviour.

The court also set a schedule for the plaintiff's motion to add parties.

The plaintiff was previously found in civil contempt of court.

Following the dismissal of his appeal and a delay due to the COVID-19 pandemic, the court held a penalty hearing.

Noting that the plaintiff was a repeat offender who had previously been fined for contempt, but declining to order incarceration during the pandemic, the court imposed a fine of $3,000 to address both specific and general deterrence.

Following the dismissal of the Town of Richmond Hill's motion for an interlocutory injunction regarding alleged zoning bylaw infractions, the successful respondents sought partial indemnity costs of $3,851.04.

The Town argued that costs should be reserved to the trial judge or made payable in the cause, and disputed the quantum.

The court rejected the Town's arguments, finding no compelling reason to depart from the ordinary rule that a successful party on a motion is entitled to costs payable forthwith.

The court fixed costs at the requested amount of $3,851.04.

The applicant municipality brought a motion for an interim order prohibiting the respondents from using two semi-detached buildings as multi-unit apartments, contrary to the local zoning bylaw.

The municipality argued that the respondents had previously breached the bylaw and could easily do so again.

The court dismissed the motion, finding that while a municipality need not show irreparable harm to obtain an injunction against ongoing bylaw breaches, it must demonstrate that the bylaw is currently being flouted.

The evidence indicated the respondents were making some attempt to comply with the bylaw, and the threat of statutory penalties remained an adequate sanction pending the final hearing.

The court issued an amended case management endorsement addressing procedural issues for a judicial review application sought by the appellant.

The endorsement struck the March 3, 2017 proceedings related to setting a date for the judicial review application and vacated the April 18, 2017 return date.

The parties were directed to contact the trial coordinator to set a new hearing date before another judge to consider the procedural issues.

The court emphasized the principle of finality and the remediation order from September 30, 2016, which was determinative of the underlying appeal.

The Superior Court of Justice issued a costs endorsement following an appeal and subsequent motion to reopen.

The appellant had appealed a building permit revocation, which was upheld by both the Superior Court and Divisional Court.

The appellant then successfully moved to reopen the appeal to introduce new evidence (Exhibit H), but the court found Exhibit H to be fraudulent.

The court dismissed the appellant's new arguments as *res judicata* and on their merits.

Due to the appellant's conduct, including presenting a fraudulent document and making unproven allegations, the court awarded full indemnity costs of $50,976.96 plus interest to the respondents.

The Appellant appealed the Chief Building Official's (CBO) decision to revoke a building permit for a two-family dwelling, arguing his property was zoned differently or that its legal non-conforming use status exempted him from seeking zoning variations.

The court dismissed the appeal, finding the matter largely res judicata due to previous appeals upholding the CBO's decision.

On the merits, the court determined that the proposed construction constituted an extraordinary intensification of use, exceeding the scope of legal non-conforming protection.

Consequently, the Appellant was required to seek zoning variations from the Committee of Adjustments, as such relief falls outside the CBO's authority.

The Respondents (City of Brampton and CBO) brought a motion alleging the Appellant (Ahmed Elbasiouni) was in contempt of a prior court order regarding property remediation and zoning variances.

The court found the Appellant technically in breach of the order because his applications to the Committee of Adjustments (COA) and Ontario Municipal Board (OMB) did not seek the specific variances contemplated by the order.

However, due to confusion arising from discussions between the Appellant and the CBO without the City's counsel, and the lack of court leave to vary the original order, the court dismissed the contempt motion.

The court emphasized the need for finality in the three-year-old matter and directed the parties to engage in further discussions to determine the way forward for remediation, with strict adherence to a new timetable.

The self-represented appellant appeared before the court to set a date for a judicial review of an Ontario Municipal Board decision regarding a building permit revocation and zoning non-compliance.

The respondents sought to dismiss the application on the technicality that it was commenced under the wrong court file number.

The court denied the request for dismissal, ordered the court office to assign a new file number, directed the production of a video recording of a Committee of Adjustment meeting, and clarified the remediation timetable from a previous order.

The applicant sought to vary a previous endorsement that had upheld the revocation of a building permit and confirmed the property's zoning as R1B(3)-153, following an appeal to the Divisional Court.

The applicant attempted to introduce fresh evidence (Exhibit H) to prove a different zoning, which the court had previously found to be inauthentic.

The court refused to treat the request as a motion for final judgment but agreed to consider the applicant's list of alleged errors.

After review, the court made only one minor correction regarding a costs award amount, maintaining all other aspects of the October 2, 2015 endorsement, including the finding that Exhibit H was not authentic and the property's zoning remained R1B(3)-153.

The moving parties brought a motion alleging the responding party was in contempt of a court order establishing a remediation timetable for zoning variances.

Although the responding party technically breached the order by applying for different variances than those specified, the court found that post-order discussions between the responding party and the Chief Building Official caused confusion.

The court halted the contempt hearing, dismissed the motion, and directed the parties to discuss a way forward.