Martha A. Cook

An application by an attorney for personal care seeking a declaration that an incapacitated person lacks capacity for personal care and directions to restrict family visits.

The applicant, the wife of an 82-year-old man with advanced Alzheimer's disease, sought to deny visitation rights to their adult children.

The court declined to make a declaration of incapacity, finding that the applicant did not require such a declaration to exercise her powers as attorney.

The court found that the incapacitated person had expressed a wish to visit his children while still capable and that visits were in his best interests.

The court issued directions permitting the daughter to visit at specified times, finding that the applicant's personal animus toward her children had impaired her ability to make decisions in the incapacitated person's best interests.

A negligence action arising from a fall suffered by an 80-year-old patient hospitalized at London Health Sciences Centre.

The patient was admitted with confusion secondary to a urinary tract infection and subsequently fell on August 15, 2015, resulting in discovery of an acute-on-chronic subdural hematoma requiring neurosurgery.

The patient never recovered her prior cognitive function and died in April 2021.

The court found that the defendant nurses breached the standard of care by failing to complete a Fall Risk Assessment and Intervention Flowsheet and failing to implement a documented toileting routine responsive to the patient's frequent urination needs.

However, the court dismissed the action because the plaintiffs failed to prove on a balance of probabilities that the fall caused the acute portion of the subdural hematoma, and failed to prove that the acute bleed changed the patient's treatment or clinical outcomes.

The Royal Bank of Canada sought summary judgment against Karen Lee Kerby for the balance owing on a Visa credit card account.

The court found that Kerby was an Authorized User, not a co-borrower, under the credit card agreement and therefore not personally liable for the debt.

The court distinguished the facts from prior case law and dismissed the balance of the action against Kerby.

The accused brought a Charter application to exclude evidence seized during a traffic stop and subsequent search, alleging arbitrary detention, unlawful search, and racial profiling.

The court found that the police lacked statutory authority under the Highway Traffic Act and reasonable suspicion for investigative detention, rendering the initial detention unlawful.

Furthermore, the court determined that racial stereotypes about Black criminality and dangerousness tainted the police's treatment of the accused throughout the interaction, leading to breaches of his ss. 9, 10(a), and 10(b) Charter rights.

Applying the R. v. Grant test, the court concluded that the seriousness of the Charter-infringing state conduct, particularly the racial profiling, and the severe impact on the accused's Charter-protected interests, warranted the exclusion of all seized evidence under s. 24(2) of the Charter.

The applicants sought an order appointing section 3 counsel for the respondent, Joan Horneman, under the Substitute Decisions Act, 1992, due to her alleged incapacity to instruct counsel.

The court dismissed the motion, finding it lacked jurisdiction because Ms. Horneman already had legal representation.

The court further held that even if jurisdiction existed, appointing section 3 counsel would be inappropriate given Ms. Horneman's undisputed incapacity to instruct counsel, as section 3 counsel cannot act without instructions and their communications are privileged, making it difficult to assess the reliability of any information about the person's wishes.

The decision emphasized the distinction between the role of section 3 counsel and a litigation guardian.

This is a costs endorsement following a motion where the defendants sought to compel the plaintiff to answer undertakings and reattend discovery.

The court found the defendants were largely successful on the underlying motion, obtaining an order for the plaintiff to answer undertakings and refusals in six of eight categories.

However, the court significantly reduced the defendants' requested costs from $19,249.65 to $5,000.00 due to the parties' failure, particularly the defendants', to engage in mandatory discovery planning under Rule 29.1.03 of the Rules of Civil Procedure.

The court emphasized that the motion was avoidable had proper discovery planning occurred, highlighting the importance of this rule for efficient litigation.

The defendants brought a motion to compel the plaintiff to answer undertakings and refusals from his examination for discovery and to re-attend for further questions.

The underlying action involves a claim for damages for breach of contract and unjust enrichment related to a joint venture to grow marijuana.

The court applied relevance and proportionality principles, compelling the plaintiff to provide detailed particulars for his damages claim, including expenses and labour, and to produce supporting evidence.

The court denied the production of the plaintiff's tax returns and Mr. Jassal's legal file, finding the latter privileged and not waived, but ordered production of correspondence from Mr. Jassal to the defendants.

The plaintiff's medical files were also deemed irrelevant.

The court ordered the plaintiff to re-attend discovery for a limited time (90 minutes) to address the new answers, emphasizing the need for proportionality and criticizing the parties' failure to engage in discovery planning.

This case involved cross-motions for an interim parenting order concerning a child born in September 2022.

The applicant father sought graduated parenting time, while the respondent mother opposed, alleging abuse and substance abuse, and requested a parenting assessment and supervised access.

The court dismissed the respondent's request for a s. 30 assessment due to insufficient evidentiary foundation and found her credibility questionable, particularly regarding her self-help tactics in denying the father access and her use of surreptitious video recordings.

The court granted the applicant father a graduated parenting schedule, emphasizing the child's right to a relationship with both parents, and imposed conditions on the father's substance use during parenting time.

The Family & Children’s Services of St. Thomas and Elgin brought a motion to continue an interim order placing a child in temporary care, while the respondent mother cross-moved for the child's return.

The court found reasonable grounds to believe a risk of harm existed due to the mother's mental health challenges but determined the child could be adequately protected by a supervision order.

The court dismissed the Society's motion to continue the placement and granted the mother's cross-motion, ordering the child's return to her care under specific supervision conditions.

The Estate of John McKinlay sought summary judgment against the Municipality of Chatham-Kent for a declaration that the Municipality was responsible for maintaining a drainage tile (Drain) on the Estate's property and for reimbursement of repair costs and crop losses.

The Drain was installed under an easement granted by the Estate's predecessor to the Province, which was later transferred to the Municipality's predecessor.

The court found that the easement granted the Municipality the right to maintain the Drain but did not impose a positive obligation to do so.

Therefore, the claim for declaratory relief was dismissed.

However, the court declined to grant summary judgment dismissing the entire action, noting that the Estate's amended statement of claim pleaded facts capable of supporting a claim for damages in nuisance, which was not fully canvassed during the motion.

The motion for summary judgment was dismissed, allowing the nuisance claim to proceed to trial.

The Corporation of the Township of Dawn-Euphemia sought court orders to confirm an emergency demolition order issued under the Building Code Act, 1992, and to recover $30,652.86 in costs incurred for the demolition.

The respondents, property owners, opposed, arguing the Municipality acted unreasonably and denied them an opportunity to respond.

The court found the emergency order unreasonable due to the Municipality's failure to provide evidence of non-conformity with a specific property standards by-law and lack of particulars in the order.

Additionally, the court found the Municipality's failure to provide the property owners with notice and an opportunity to inspect and remediate prior to demolition was procedurally unfair.

The emergency order was rescinded, and the Municipality was denied cost recovery.

The applicant, Yiu Sun Wong, charged with fraud over $5,000, sought a stay of proceedings based on multiple Charter infringements during his arrest and 72-hour detention.

The court found that while the initial arrest warrant was lawful, its execution and the subsequent detention were unlawful and arbitrary.

Specifically, police failed to obtain a Feeney warrant for an in-home arrest, improperly sought and obtained a six-day remand in British Columbia under a misapprehension of facts, and delayed bringing the applicant before an Ontario justice for 72 hours, during which officers took a day off.

The court found these actions breached the applicant's s. 7 and 9 Charter rights and demonstrated a systemic disregard for statutory duties under the Criminal Code, particularly the principle of restraint (s. 493.1) and timely appearance before a justice (s. 503(1)).

Concluding that no alternative remedy could adequately address the systemic police misconduct and protect the integrity of the justice system, the court granted a stay of proceedings.

The plaintiffs brought a motion under Rule 30.06 for broad documentary production from the Township, including by-laws and records dating back to 1966, related to two properties.

The Township argued it had already fulfilled its production obligations.

The court found the parties' "discovery plan" inadequate and emphasized the mandatory nature of proper discovery planning and proportionality (Rules 29.1.03, 29.2.03).

The court determined that only documents related to the "legally non-conforming use" of the Subject Property were relevant based on the pleadings.

The motion was largely dismissed, with the exception of an order for the Township to disclose and produce its current zoning by-law (no. 30-1999), which was deemed relevant to the non-conforming use issue.

Costs were ordered to be borne by each party due to the failure to engage in meaningful discovery planning.

The Applicant sought partial summary judgment for retroactive and prospective section 7 expenses for three children and a divorce order.

The court dismissed the motion, finding it inappropriate for partial summary judgment due to outstanding issues (parenting time, child support, equalization), the risk of inconsistent judicial determinations regarding income and expenses, and the lack of efficiency or cost savings.

The court emphasized that all issues raised were triable and should be reserved for the trial judge.

This is a costs endorsement following the successful dismissal of a defamation action under anti-SLAPP provisions.

The defendants sought full indemnity costs, while the plaintiff argued for a reduced scale due to the defendants' delay in bringing the anti-SLAPP motion and their conduct.

The court, applying the framework from Levant v DeMelle, found that the plaintiff's action bore hallmark indicia of an anti-SLAPP suit, justifying the presumptive full indemnity costs.

The court dismissed the plaintiff's arguments regarding delay and conduct, finding the requested costs proportionate and reasonable.

The defendants brought a motion under section 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action as an impermissible SLAPP suit.

The plaintiff, a former municipal councillor, sued the defendants over a newspaper column that suggested he had a conflict of interest regarding a municipal development project.

The court found that while the defamation claim had substantial merit and the defences of fair comment and responsible communication lacked a real prospect of success, the plaintiff failed to prove that the harm he suffered outweighed the public interest in protecting the political expression.

The motion was granted and the action was dismissed.