Martin S. James

Following a successful motion to vary a custody order granting the applicant sole custody, the court considered the respondent’s claim for costs.

The self-represented moving party did not file any submissions on costs despite extensions granted by consent.

The responding party sought recovery for preparation of a trial record, preparation of a draft order, and a prior motion relating to the return of the children.

The court held that the earlier motion costs had been reserved and declined to award them.

However, the court awarded partial costs for preparation of the trial record and draft order.

The applicant brought a motion to enforce minutes of settlement reached shortly before trial in a family law dispute and sought judgment in accordance with the settlement, exclusive possession of the matrimonial home, and an order for its sale.

The respondent resiled from the agreement, alleging inadequate financial disclosure and asserting that pressure and circumstances surrounding the signing of the settlement undermined the formation of a binding contract.

The court held that the applicant had provided adequate financial disclosure and determined that this issue did not raise a genuine issue requiring trial.

However, conflicting evidence regarding the circumstances under which the settlement was negotiated and executed raised credibility concerns that could not be resolved on the motion.

The motion to enforce the settlement was therefore dismissed and directions were ordered for a trial of the issue of whether a binding settlement contract existed.

In a family law dispute involving a jointly operated cleaning business following marital separation, the applicant sought an order vesting ownership of several business vehicles in her name to permit insurance and continued business operations.

The respondent opposed and brought a cross-motion for contempt based on alleged non-payment of draws and salary under a prior consent order, and sought control of the business.

The court held that contempt was unavailable for enforcement of monetary obligations and found the respondent’s actions had interfered with the business, including cancelling vehicle insurance.

To protect the ongoing viability of the enterprise pending trial, the court vested the vehicles in the applicant subject to conditions on maintenance and disposition.

The respondent’s contempt motion and related requests were dismissed.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action after termination without cause following 31 years of service.

The court applied the principles in Hryniak v. Mauldin and found no genuine issue requiring a trial.

Considering the Bardal factors, including the employee’s age, lengthy service, supervisory role, and proximity to eligibility for an unreduced pension, the court determined that damages should effectively bridge the employee to his pension entitlement rather than apply a full 22‑month notice period.

The court rejected the employer’s mitigation arguments, finding that the employee’s extensive job search and acceptance of lower-paying retail work satisfied the duty to mitigate.

Judgment was granted for salary to the pension qualification date, compensation for lost pension value, and the contractual retirement allowance.

The applicant brought a motion seeking retroactive and ongoing child support following separation and the breakdown of a shared parenting arrangement for three children.

The respondent opposed retroactive support and brought a cross‑motion seeking relief from any child support obligation based on undue hardship due to disability‑related expenses, and sought leave to amend pleadings.

The court declined to order retroactive support on a temporary motion, finding factual and financial disputes better suited to negotiation or trial.

The court also rejected the respondent’s undue hardship claim, finding his income substantial and insufficient evidence to meet the high threshold under s. 10 of the Child Support Guidelines.

The respondent was ordered to pay guideline support if parenting time fell below 40%, with set‑off under s. 9 applicable if parenting time exceeded that threshold; leave to amend pleadings was granted.

Following the discontinuance of a civil action shortly before trial, the defendants sought directions regarding the management and trial of their remaining counterclaims.

The court noted that trial preparation had been substantially completed when the plaintiff discontinued the action.

In the interests of justice and efficiency, the court established a timetable for the amendment of pleadings, completion of documentary discovery and examinations for discovery, a pre-trial conference, and a scheduled trial date.

The court also adjusted the timelines under the Rules of Civil Procedure to accommodate the ordered schedule.

The defendants brought summary judgment motions seeking dismissal of a personal injury claim arising from a teeth whitening procedure performed by a dental hygienist.

The court held that allegations concerning negligent performance of the procedure required expert evidence regarding the applicable standard of care.

Because the plaintiff failed to provide admissible expert evidence meeting the requirements of Rule 53.03, the claims for negligent performance and breach of contract were dismissed.

However, the court found a genuine issue requiring a trial on whether the plaintiff gave informed consent, as the parties presented conflicting evidence regarding disclosure of the risk of burns.

The court also held that expert evidence was not required to determine whether the material risk of burns had been disclosed, and that the issue of potential vicarious liability of the dentists for any breach of disclosure duty remained for trial.

Following the dismissal of a corporate plaintiff’s claim on summary judgment arising from a failed commercial real estate transaction, the court determined the appropriate allocation and quantum of costs among multiple parties.

The defendants sought elevated costs relying on offers to settle and alleged litigation tactics by the plaintiff.

The court awarded enhanced costs to the defendants and held that the controlling individual behind the corporate plaintiff could be personally liable for costs by piercing the corporate veil.

The court also interpreted an indemnity clause signed by a corporate officer as creating joint personal liability for full indemnity costs to one defendant.

Various additional costs claims by other parties were dismissed.

The appellant appealed convictions for impaired driving and operating a motor vehicle with a blood alcohol concentration exceeding 80 mg.

The appellant argued that the trial judge misapprehended evidence related to alleged bolus drinking and improperly took judicial notice of certain facts when assessing credibility.

The court reviewed the record and concluded that the trial judge’s findings were supported by the evidence and that no material misapprehension occurred.

The appellate court emphasized deference to trial judges on credibility findings and held that the impugned observations reflected common sense reasoning rather than improper judicial notice.

The appeal was dismissed.

Following a prior summary judgment establishing liability for copyright infringement, the court conducted an uncontested assessment of damages.

The defendant operated a language training service that collected confidential federal public service language test questions from students and used them to train others, thereby infringing Crown copyright and undermining the integrity of the testing system.

The plaintiff elected statutory damages under s. 38.1 of the Copyright Act and sought the statutory maximum for six compromised tests plus punitive damages.

The court considered the defendant’s bad faith, deterrence objectives, and lack of evidence regarding profits.

Statutory damages were awarded at varying levels per infringement but punitive damages were declined.

The plaintiff, a highly successful salesman who managed a lucrative drill rig production account, agreed to a temporary layoff during an economic downturn.

Upon his recall, the defendant employer offered him a vague sales position that excluded the lucrative drill rig account, fundamentally altering his duties and compensation.

The court found the plaintiff was constructively dismissed and was not required to mitigate his damages by accepting the ill-defined new role.

The plaintiff was awarded 16 months' pay in lieu of notice.

The applicant sought court assistance to compel financial disclosure from corporations associated with the respondent within the context of a family law arbitration.

The arbitrator had previously ordered disclosure but concluded the respondent had not fully complied and lacked jurisdiction to compel production from non-party corporations.

The court ordered the respondents to produce the information listed in an exhibit and required the applicant to execute a confidentiality agreement covering all disclosed materials.

The court upheld the arbitrator’s direction that the respondent bear the costs of locating and compiling disclosure while the applicant would pay photocopying at the Legal Aid rate.

The applicant was found substantially successful and awarded partial costs of the motion.

The applicant brought a motion seeking a finding of contempt of court and an order striking the respondent’s pleadings for repeated breaches of family court orders and failures of financial disclosure in a property dispute following a lengthy common-law relationship.

The alleged breaches included failure to pay proceeds from a condominium sale into court, the unauthorized sale of an aircraft despite a non‑dissipation order, and inadequate accounting for the disposition of several properties.

The court declined to make a contempt finding, emphasizing that contempt is reserved for the clearest cases and that remedial alternatives should be preferred in family proceedings.

Instead, the court found the respondent had failed to make good faith efforts to comply with court orders and provide proper disclosure.

As a remedial measure, the respondent was ordered to pay $80,000 into court and pay costs, failing which his pleadings would be struck and his participation at trial restricted.

The Crown brought an application under s. 37 of the Canada Evidence Act seeking to prevent disclosure of information relating to a confidential police informant during a preliminary inquiry.

Defence counsel sought answers to questions concerning the informant’s reliability and status with police.

The court reaffirmed that informer privilege is nearly absolute and protects any information that may tend to identify the informant, subject only to the innocence at stake exception, which was not engaged.

Relying on appellate authority cautioning against judicial editing of informant materials, the court held that the requested information could risk identification of the informant.

The Crown’s application was granted and disclosure of the requested information was prohibited.

The defendants brought motions for summary judgment seeking dismissal of the plaintiff’s construction negligence action on the basis that it was statute-barred under the two-year limitation period in the Limitations Act, 2002.

The plaintiff alleged water infiltration problems in a condominium project caused by deficiencies in an exterior acrylic stucco system supplied and installed by the defendants and designed by the architect.

The defendants argued the plaintiff knew of the loss and potential responsible parties in 2005–2006 and therefore the limitation period expired before the action was commenced in June 2008.

The court held that the discoverability issue was highly contextual and that the plaintiff’s ongoing investigation into the source of the leaks raised a genuine issue requiring trial.

Summary judgment was therefore inappropriate and the limitation issue must be determined at trial.

The parties were unable to agree on a parenting time schedule and each submitted a proposed schedule to the court.

The court preferred the applicant’s proposed schedule and ordered that it form the basis of the parenting arrangement, subject to a modification addressing professional development days occurring before the respondent’s parenting weekends.

The order directed that such professional development days and the preceding Thursday overnight be added to the respondent’s parenting time, extending his time from Wednesday at 4 p.m. until the following Monday morning.

Both parties sought costs and submitted bills of costs.

The court found the outcome reflected mixed success and declined to award costs.

The Crown and the Ontario Provincial Police applied for certiorari to quash a provincial court disclosure order requiring production of records related to an Intoxylizer 8000C breath testing device in impaired driving prosecutions.

The lower court had ordered disclosure of calibration, maintenance, usage logs, prior subject test records, and samples of the alcohol standard solution used in breath testing.

The applicants argued the police should have been treated as a third party and given notice and an opportunity to be heard, and that the disclosure order conflicted with expert evidence about the relevance of the records.

The court held that the police possessed a direct interest in the records and should have been afforded an opportunity to make submissions on whether the materials constituted third party records.

The order was quashed and the matter remitted to the Ontario Court of Justice for reconsideration of the disclosure regime with participation from the police.

On a motion concerning temporary custody and access following separation, the father sought shared parenting of the parties’ three young children after the mother unilaterally terminated an interim two-day rotation arrangement.

The mother raised concerns about the father’s ability to provide adequate care due to a catastrophic spinal injury that left him quadriplegic and reliant on significant assistance.

The court emphasized the importance of maximizing children’s contact with both parents and noted that the matter was at an early stage, with a custody and access assessment anticipated.

A temporary arrangement was ordered granting joint custody with parenting time approximately 60% to the mother and 40% to the father, along with directions to develop a workable schedule and obtain a professional assessment.

During a jury trial, the defence requested that the trial judge include a Vetrovec warning in the jury charge concerning the credibility of the complainant and another Crown witness due to their criminal histories and credibility concerns.

The court considered the governing principles regarding when a special caution to the jury about unreliable witnesses is appropriate.

The judge held that the complainant did not fall within a category of witnesses requiring such a warning because his credibility issues were apparent and could be assessed by the jury without special instruction.

However, the court exercised its discretion to provide a Vetrovec warning regarding the second witness, whose extensive criminal record included crimes of dishonesty and whose testimony conflicted with police evidence.

The jury would therefore be cautioned to scrutinize that witness’s evidence and consider whether it was confirmed by other evidence.

In a family law motion involving parenting issues, support, and the matrimonial home, the respondent sought several forms of relief including appointment of the Office of the Children’s Lawyer, severance of the divorce, variation of access, and an order for the sale of the matrimonial home.

The court declined to sever the divorce and refused to alter the existing temporary access arrangement due to insufficient evidence of a material change affecting the children’s best interests.

However, the court ordered the sale of the jointly owned matrimonial home and required the responding party to vacate the property, citing financial realities and the risk of eroding equity.

The court also ordered the payment of ongoing child support and appointed the Office of the Children’s Lawyer to obtain the children’s views and preferences.