Mathew H. Hilbing

The court considered a motion by the plaintiff to strike portions of the defendant’s statement of defence and counterclaim in a property dispute.

The court found that much of the defendant’s pleading was irrelevant, scandalous, or pleaded evidence rather than material facts, and that it amounted to an abuse of process.

The court struck numerous paragraphs and ordered the defendant to serve and file a fresh, compliant pleading, with the process to be supervised by the court.

The plaintiff, D.H. Anderson Investments Inc., sought an interim and permanent injunction to remove the defendant, Wilma Castanares, from its property and to strike portions of her statement of defence and counterclaim.

The court granted the injunction, finding that the plaintiff had a strong prima facie case for ownership, that irreparable harm would result if relief was not granted, and that the balance of convenience favoured the plaintiff.

The court found no evidence of a gift or constructive trust in favour of the defendant and held that her occupation of the property was insufficient to establish any legal or beneficial interest.

The defendants brought a motion for directions after adjourning the examination for discovery of the plaintiff, Valentina Medvedeva.

The day before the scheduled examination, the plaintiffs served a lengthy affidavit intended to serve as Valentina's evidence in chief.

The defendants objected, arguing this would allow the plaintiffs to control the narrative and avoid a proper oral discovery.

The court agreed with the defendants, finding that under Rule 31.02, the examining party controls the form of discovery, and oral examinations are the standard.

The court ordered that Valentina submit to a standard oral examination for discovery without the use of the affidavit.

The appellant appealed a final order from the Superior Court of Justice (Family Court) that determined issues of property division and child and spousal support.

The appellant raised five grounds of appeal: lack of jurisdiction to grant summary judgment when a divorce claim was present, improper treatment of the matrimonial home, unfair division of household contents, mathematical errors in calculating net family property, and allegations of judicial bias.

The Court of Appeal dismissed all grounds of appeal, finding that the motion judge properly severed the divorce claim under the Family Law Rules, made no error regarding the matrimonial home, fairly divided the household contents, and appropriately addressed mathematical errors through a subsequent motion.

The court rejected unsubstantiated allegations of judicial bias.

The appellant, the operator of a contracting company, appealed a Small Claims Court judgment holding him personally liable, jointly and severally with his company, for $25,000 in damages arising from an incomplete pool and landscaping project.

The respondents had provided a $25,000 cheque to the company, which they alleged was held in trust for future work, while the appellant claimed it was for past work.

The Divisional Court allowed the appeal, finding that the trial judge's reasons were inadequate because they failed to explain the basis for imposing personal liability on the appellant, such as piercing the corporate veil or finding a breach of trust.

A new trial was ordered on the narrow issues of whether the funds were impressed with a trust and whether the appellant misappropriated them.

Following a judgment allowing appeals and cross-appeals in part, the parties were unable to agree on costs.

The Court of Appeal awarded costs on a partial indemnity scale, ordering Charles Sr. to pay Diana $50,000, Charles Jr. to pay Diana $15,000, Lisa to pay Charles Jr. $15,000, and Ford to pay Lisa $15,000.

All additional requests for costs were dismissed.

The plaintiffs brought a motion seeking to consolidate, or alternatively to have heard sequentially, their appeal of a property standards order under the Building Code Act, 1992 and a separate civil action against the municipality, neighbours, a supplier, and an engineering firm.

The plaintiffs argued that both proceedings arose from the same factual circumstances regarding retaining walls and responsibility for remediation work.

The court held that the appeal was narrowly limited to determining whether the property complied with applicable standards and whether the ordered repairs were required, while the civil action involved broader questions of liability and damages.

Consolidation or a stay would undermine the purpose of the property standards regime by delaying enforcement.

The motion was dismissed.

The applicant municipality sought a determination regarding the nature of an appeal under s. 15.3(4) of the Building Code Act, 1992 from a property standards committee decision, specifically whether the appeal proceeds as a hearing de novo or as an appeal limited to the record.

The court considered conflicting authorities of the Superior Court addressing the issue.

Preferring earlier precedent, the court held that such appeals are hearings de novo, permitting the parties to introduce new and oral evidence, including evidence arising after the committee hearing.

The court emphasized that under s. 15.3(6) the court possesses the same powers and functions as the committee, including receiving evidence and determining issues on the merits.

The appellant husband appealed a trial judgment that awarded his bankrupt wife an equalization payment, lump sum spousal support, and costs.

The wife's former lawyers also appealed an order requiring the assessment of their accounts and a personal costs award against them.

The Court of Appeal allowed the appeal in part, setting aside the equalization payment because the wife lacked capacity to assert the claim after her bankruptcy, and setting aside the assessment of the lawyers' accounts.

However, the Court upheld the lump sum spousal support award and the costs awards, including the personal costs award against the wife's former lawyer for acting in bad faith and running up costs without reasonable cause.

The applicant father obtained an ex parte order for custody and the return of the children after the respondent mother moved with them to New Brunswick without his consent.

The mother brought a motion to set aside the ex parte order and for permission to relocate to New Brunswick on an interim basis.

The court set aside the ex parte order due to the father's failure to disclose material facts, specifically emails indicating the mother's intended moving date and location.

However, the court dismissed the mother's motion to relocate, finding that custody was not a foregone conclusion and a move prior to trial was not in the children's best interests.

The court ordered temporary shared custody with the parents rotating in and out of the matrimonial home.