Marc David Dunn Whiteley

The applicants brought a motion seeking a finding that the respondents, Hanna Gajek and Katarzyna Krol, failed to comply with two prior court orders requiring disclosure of the assets and liabilities of the late Marek Krol's estate.

The court found that Katarzyna Krol had satisfied her disclosure obligations to the best of her ability, as she had no knowledge or possession of relevant documents.

However, the court found that Hanna Gajek had not fully complied with the orders, particularly regarding documents likely kept in a safe and details of joint bank accounts.

The motion was dismissed against Katarzyna Krol and allowed in part against the Estate of Hanna Gajek, with directions for further disclosure.

The parties were involved in a dispute over the estate of the deceased, who allegedly died intestate.

The applicant sought the appointment of an Estate Trustee Without a Will and an advance from the estate, while the respondents sought the appointment of an Estate Trustee During Litigation and directions regarding estate properties.

The court consolidated the two applications, appointed an Estate Trustee During Litigation to administer the estate pending the resolution of the dispute, deferred the request for an advance, and authorized the payment of outstanding property taxes on estate properties.

The plaintiffs appealed a motion judge's order refusing to validate late service of their Statement of Claim.

The plaintiffs had made diligent but unsuccessful efforts to serve the evasive defendant within the six-month period.

The motion judge had found on separate motions that neither party proved their case regarding prejudice.

The Court of Appeal allowed the appeal, holding that the motion judge's findings were irreconcilable and that the plaintiffs had discharged their onus to show no prejudice, especially since the defendant provided no details of any alleged prejudice.

Service was validated.

The plaintiffs brought a motion to strike portions of the defendants' Amended Statement of Defence.

The impugned clauses alleged that the plaintiffs had unclean hands because the claim was a subrogated claim by a title insurer based on false or misleading information provided by the plaintiffs.

The court agreed with the plaintiffs that these allegations were unrelated to the main action regarding renovations and a real estate transaction, and improperly broadened the scope of discovery.

The court ordered the impugned portions struck.

The Plaintiffs moved for answers to undertakings and refusals, leave to amend their Statement of Claim, and a timetable.

The Defendants cross-moved for answers to refusals, access to the Plaintiffs' former solicitor's file, and leave to examine the solicitor, arguing waiver of solicitor-client privilege.

The court granted the Plaintiffs' request to amend their Statement of Claim and ordered various undertakings and refusals to be answered by both parties.

However, the court denied the Defendants' request for the solicitor's entire file and examination, finding that privilege was waived only for the specific legal letter disclosed, not the underlying advice or file.

The court also addressed costs for an aborted discovery and set a timetable for continued discoveries.

The defendants brought a summary judgment motion seeking dismissal of the plaintiff's claim based on the expiry of the two-year limitation period under the Limitations Act, 2002.

The plaintiff argued the limitation period had not expired or, in the alternative, that there were genuine issues requiring a trial.

The court found that the plaintiff's decision to forebear from suing earlier, based on promises of payment and a long-standing business relationship, was reasonable.

The court also determined that there were serious credibility issues and disputed facts regarding the nature of the contracts and payments, making it impossible to dispose of the matter summarily.

The motion for summary judgment was dismissed, requiring a full trial on the merits.

The defendant moved for partial summary judgment to dismiss all claims by 1198934 Ontario Inc. and specific claims by 1526806 Ontario Inc. for negligent misrepresentation, fraudulent misrepresentation, punitive damages, and aggravated damages.

The court dismissed the claims by 1198934 Ontario Inc. due to lack of privity of contract and rejected an attempt to amend the claim for unjust enrichment as untimely.

Claims for aggravated damages were dismissed because corporations cannot suffer intangible injuries.

Claims for fraudulent and negligent misrepresentation were dismissed due to an absence of evidence of loss or reliance.

However, the motion to dismiss the claim for punitive damages was denied, as it was intertwined with the breach of contract claim that was proceeding to trial, raising an unacceptable risk of inconsistent factual findings.

The applicants sought equitable relief and rectification of a second mortgage registered against a property.

Due to a Land Titles office error during conversion from the Registry System, the property owner's name was incorrectly recorded on three of four property identification numbers (PINs), leading to the applicants' mortgage being registered against only one PIN.

The Minister of National Revenue (NR), a subsequent lienholder, argued that the applicants should pursue other remedies like suing their lawyer or claiming against the Land Titles Assurance Fund.

The court found a clear common intention for the mortgage to cover the entire property and granted the equitable relief and rectification, allowing the applicants to enforce their mortgage against all four parcels, thereby maintaining their priority over NR's later-registered liens.

The plaintiff appealed an interlocutory order of a Master to the Divisional Court instead of a single judge of the Superior Court.

The defendant successfully moved to quash the appeal, and the plaintiff's motion to extend time to appeal was dismissed.

In this costs endorsement, the court awarded the defendant full indemnity costs for the motion to quash, noting the plaintiff pursued the wrong appellate route despite repeated warnings.

The court also awarded partial costs for the motion to extend time, fixing total costs at $7,497.49.

The defendant successfully brought a motion to quash the plaintiff's appeal of an interlocutory order and successfully resisted the plaintiff's motion to extend the time to appeal.

The court awarded the defendant full indemnity costs of $5,997.49 for the motion to quash, finding the plaintiff's pursuit of the appeal in the wrong forum was entirely unnecessary despite repeated warnings.

The court also awarded the defendant partial indemnity costs of $1,500.00 for the motion to extend time, noting efficiencies between the two interrelated motions.

The plaintiff obtained a default judgment in a mortgage enforcement action, which was subsequently set aside by a Master.

The plaintiff appealed the Master's order to the Divisional Court, arguing it was a final order.

The defendant moved to quash the appeal on the basis that the order was interlocutory and the appeal lay to a single judge of the Superior Court.

The plaintiff brought a cross-motion to extend the time to appeal to a single judge.

The court held that an order setting aside a default judgment is interlocutory, quashed the appeal, and denied the extension of time because the proposed appeal lacked merit, as the Master had no jurisdiction to vary a prior judge's peremptory order.

The Plaintiff appealed a Master's order setting aside a default judgment to the Divisional Court, believing it to be a final order.

The Defendant moved to quash this appeal, arguing the Master's order was interlocutory and thus appealable only to a single judge of the Superior Court.

The Plaintiff also brought a cross-motion to extend the time for appeal to a single judge, should the initial appeal be quashed.

The court determined that an order setting aside a default judgment is interlocutory, not final, and therefore the appeal to the Divisional Court was improper.

The court quashed the Plaintiff's appeal and denied the cross-motion for an extension of time, finding no merit to the proposed appeal as the Master correctly lacked jurisdiction to vary a judge's peremptory order.

The appellant appealed a decision of the Health Services Appeal and Review Board dismissing its Requests for Hearing regarding the removal of vascular ultrasound services from its licences.

The Board had dismissed the requests due to an inordinate 15-year delay causing prejudice, and found the requests moot because the appellant failed to comply with Minutes of Settlement that provided a mechanism to restore the services.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable and its application of the test for administrative delay correct.

The tenant of a commercial lease remained in the premises after the expiration of the term, relying on an overholding clause that stated the tenancy would become month-to-month if the tenant continued to occupy without further written agreement.

The landlord, who had secured a new tenant and demanded vacant possession, locked the tenant out.

The application judge found the tenant was validly overholding.

The Court of Appeal allowed the landlord's appeal, holding that an overholding clause requires the landlord's consent (usually evidenced by acceptance of rent) to create a month-to-month tenancy, and does not grant the tenant a unilateral right to remain.

The plaintiff appealed an order of a motions judge that set aside a Master's order declaring the defendants had waived solicitor/client privilege.

The defendants had sought to amend their statement of defence, filing an affidavit blaming their former solicitor for errors, which the Master found constituted a waiver of privilege.

The Divisional Court allowed the appeal, finding that the motions judge failed to apply the proper standard of review and erred by attempting to case manage the sequence of motions after confirming the Master's finding of waiver.

The Master's order was restored.

The plaintiff moved for leave to appeal a decision setting aside a Master's order that required the defendant to produce solicitor-client communications.

The defendant had filed an affidavit explaining his previous solicitor's misapprehension of his position in support of a motion to amend his Statement of Defence.

The motion judge held that waiver of privilege depended on whether the amendment was made under Rule 51.05 or Rule 26.01.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the motion judge's decision and that the issue of conditional or partial waiver of privilege is of general public importance.