Marvin Kurz

The applicant, the Corporation of the Town of Saugeen Shores, sought a declaration that a dispute with its lessee over construction delays was not arbitrable and must be litigated.

The lessee argued that the dispute, which involved a force majeure clause, should be resolved by arbitration and that the arbitrator should decide jurisdiction at first instance based on the competence-competence principle.

The court dismissed the application, holding that the issue of arbitrability raised questions of mixed fact and law that required more than superficial consideration of the documentary evidence, and therefore must first be determined by an arbitrator.

The appellant mother sought to stay three temporary orders pending appeal: an order for graduated unsupervised parenting time for the respondent father, a finding of contempt against her for disobeying the parenting time orders, and a penalty order temporarily reversing primary parenting to the father.

The motion judge found that the mother had deliberately and continuously thwarted the father's court-ordered unsupervised parenting time based on unsubstantiated beliefs that the father posed a sexual risk to the child, despite investigations and an expert assessment finding no such risk.

Applying the RJR-MacDonald test, the court dismissed the motion for a stay, finding that the mother's appeal appeared weak, and that the balance of convenience and the child's best interests favored allowing the father an opportunity to build a relationship with the child.

Following a trial under the Hague Convention ordering the return of two children to the UK, the successful applicant father sought costs on a full recovery basis.

The court found the respondent mother's conduct to be unreasonable, though stopping short of bad faith, and ordered her to pay $150,000 in costs.

The defendants moved to dismiss or stay the plaintiff's action as an abuse of process, arguing the plaintiff should have amended a stayed counterclaim in a prior construction lien action instead of commencing a new proceeding.

The plaintiff cross-moved for leave under s. 38 of the Bankruptcy and Insolvency Act (BIA) to continue the action on behalf of the bankrupt corporation's creditors.

The court dismissed the defendants' motion, finding no abuse of process as the counterclaim was stayed due to bankruptcy and there was no multiplicity of proceedings.

The court also held that the plaintiff did not require s. 38 authorization because the claims sought to pierce the corporate veil against the bankrupt's alter egos, which were personal claims not belonging to the bankrupt's estate.

The appellant appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching against an 11-year-old complainant.

The sole ground of appeal was ineffective assistance of trial counsel, alleging that counsel focused excessively on the complainant's gender identification, failed to cross-examine on lack of opportunity, failed to bring a section 276 application, and failed to obtain an updated psychological report.

The Superior Court of Justice dismissed the appeal, finding that trial counsel's tactical decisions were reasonable and professional, and that the appellant failed to establish incompetence or a miscarriage of justice.

A common-law spouse moved for a certificate of pending litigation and preservation relief over a home solely owned by the respondent, alleging sweat equity, expense contributions, and trust-based claims arising from cohabitation.

The court held that s. 12 of the Family Law Act was unavailable because the parties were never married, and declined relief under s. 40 because there was no support order, insufficient evidence of entitlement to support, and no concrete evidence of intended asset depletion.

The court also refused a certificate of pending litigation, finding no triable issue as to a proprietary interest in the home, no demonstrated uniqueness of the property, and an adequate likelihood that any remedy would be monetary rather than proprietary.

The motion was dismissed, with liberty in effect to renew if the factual circumstances change.

On an interim spoken-to appearance concerning the terms of an adjournment, the court considered whether the balance of an ex parte Mareva injunction should continue until the full motion hearing.

Applying the elevated Mareva injunction standard, the court expressed doubts on the limited record that the moving parties had shown a strong prima facie fraud case, and also noted concerns about possible non-disclosure at the original without-notice hearing, including omitted investment risk acknowledgments.

The court further found that, over the short adjournment period, the risk of irreparable harm appeared greater to the responding parties because continuation of the injunction could jeopardize financing, business operations, and the individual defendants' home.

Without prejudice to the ultimate motion judge, the remaining Mareva injunction was lifted.

The plaintiff lender moved without notice to set aside an existing default judgment and replace it with separate secured and unsecured judgments after learning that the combined form of judgment prevented assignment of the insured mortgage shortfall claim to the mortgage insurer.

The court held that rr. 59.06(1) and 59.06(2), read liberally with r. 1.04, permitted the relief because the change was formal rather than substantive, no prejudice to the defendants was apparent, and the total indebtedness remained unchanged.

The court treated the original judgment as containing an accidental omission in failing to separate the debts and accepted that the defect was discovered only after judgment.

The motion was granted, the writ of seizure and sale remained effective, and no costs were ordered.

The appellant sought extensive interim relief effectively staying both an interim family law order and further steps in related Ontario Court of Justice proceedings pending appeal.

The court accepted that the motion judge had erred in treating the commencement of a Superior Court application as creating an automatic stay under s. 36(1) of the Family Law Act, but held that the error did not justify relief because any stay still had to be affirmatively established.

Applying the RJR-MacDonald framework, the court found a serious issue in the narrow sense of legal error, but no irreparable harm from requiring the appellant to continue complying with procedural directions in the long-running family proceeding.

The balance of convenience strongly favoured the respondent, given the appellant's duplicative proceedings, prior non-compliance, outstanding costs, and the advanced state of the Ontario Court of Justice litigation.

In a high-conflict family law enforcement motion under Rule 1(8) of the Family Law Rules, the father sought to enforce an arbitration award requiring the mother to ensure the 17 and 15-year-old children attend reunification therapy.

On its own initiative, the court raised the issue of whether it had jurisdiction to order a Voice of the Child report.

The court held that it had jurisdiction under the Family Law Rules, its inherent jurisdiction to control its process, and its parens patriae jurisdiction.

Given the children's ages and the potential impact of the enforcement order on them, the court ordered a privately funded Voice of the Child report before proceeding with the enforcement motion.

In an uncontested trial following the striking of the respondent's pleadings, the applicant sought child support for her nephew, for whom she is the primary caregiver.

The court imputed income to the respondent at a minimum wage level from 2024 onward, finding he failed to provide adequate income disclosure, was likely surreptitiously employed while receiving Ontario Works, and provided no medical or educational reason for under-employment.

The respondent was ordered to pay $11,088.63 in retroactive support, ongoing monthly support of $281.54, and $14,690 in enhanced costs due to his unreasonable conduct.

The appellant appealed a Small Claims Court decision awarding the respondent $35,000 in damages for breach of a commercial lease.

The appellant argued the trial judge erred by failing to apply the Highway Properties principles, exceeding her jurisdiction by granting declaratory relief regarding real property, and providing inadequate reasons.

The Divisional Court dismissed the appeal, finding that the respondent provided proper Highway Properties Notice, the trial judge merely made necessary findings of fact to award monetary damages within her jurisdiction, and the reasons were sufficient given the informal nature of the Small Claims Court.

In a mortgage enforcement action, the self-represented defendant brought a motion seeking directions and Crown consultation based on pseudolegal arguments regarding Indigenous rights.

The plaintiff requested the motion be dismissed under Rule 2.1.02.

The court found the defendant's motion was nonsensical, lacked legal merit, and relied on Organized Pseudolegal Commercial Arguments (OPCA) to avoid liability.

The court granted the plaintiff's request, dismissing the defendant's motion as frivolous, vexatious, and an abuse of process, and prohibited the defendant from bringing further motions without leave.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her application for disability-based discrimination.

The applicant alleged she was terminated after disclosing her bipolar disorder and requesting accommodations.

The Divisional Court found that the Tribunal breached procedural fairness by allowing the respondent employer to file a second, more detailed witness statement during the hearing without permitting the applicant to cross-examine the witness on the discrepancies between his two statements.

The application for judicial review was granted and the matter remitted to a differently constituted panel of the Tribunal for a new hearing.

The applicant wife brought a motion to determine whether the parties' matrimonial dispute should be heard in Ontario or Bulgaria, after the respondent husband commenced divorce proceedings in Bulgaria.

The court found that while the husband had not attorned to Ontario's jurisdiction, Ontario had jurisdiction simpliciter and was clearly the forum conveniens.

The parties had lived in Ontario for 20 years, the children were habitually resident there, and the wife would suffer a significant juridical disadvantage regarding spousal support under Bulgarian law.

The court granted an anti-suit injunction restraining the husband from continuing his Bulgarian proceedings and ordered the divorce split from corollary issues.

Sobeys Capital Inc. applied for judicial review of an Ontario Labour Relations Board decision certifying Local 633 as a craft bargaining unit for 15 meat department workers at a Toronto supermarket.

Sobeys argued the decision was unreasonable, contrary to precedent, and created an absurd result by leaving the remaining 92 percent of employees non-unionized.

The Divisional Court dismissed the application, finding the OLRB's decisions under both s. 9(3) and s. 9(1) of the Labour Relations Act were reasonable, given the union's long history of representing supermarket meat department employees and the lack of evidence that certification would cause labour relations problems.

The plaintiff bank brought a motion for summary judgment on a defaulted mortgage.

The self-represented defendants failed to attend the hearing despite multiple notices.

The court found the plaintiff established a prima facie case of default on the renewed mortgage.

The defendants' unparticularized defenses of non est factum, fraudulent misrepresentation, and unconscionability were dismissed for lack of supporting evidence.

Summary judgment was granted to the plaintiff for the outstanding debt of $946,408.35, plus costs.

The appellants appealed a Licence Appeal Tribunal decision regarding the quantum of damages for warranted defects in the exterior brick cladding of their new home.

The Tribunal had awarded $16,724 to repair the front of the house, rejecting the appellants' claim for over $200,000 to rebrick the entire home.

On appeal to the Divisional Court, the appellants argued the Tribunal erred in law by failing to apply the test from Ducas and by taking a functional rather than prescriptive approach to the Building Code.

The Divisional Court dismissed the appeal, finding the Ducas test inapplicable to the one-year warranty at issue and holding that the Tribunal properly assessed the scope of damages based on the evidence.

In a Hague Convention return application, the court found that two children wrongfully retained in Ontario remained habitually resident in the United Kingdom.

Applying the hybrid habitual residence approach, the court held that annual vacation visits and a 29-day temporary stay in Ontario did not displace the children’s deep social, educational, and familial connections to the UK.

The court rejected the respondent’s Article 13 defences of consent or acquiescence, grave risk of harm, and child objection, finding the evidence of alleged abuse and coercive control unreliable in material respects and the children’s stated wish to remain in Canada insufficiently mature and not independent.

The court ordered the children’s return to the UK and treated the applicant’s undertakings regarding housing, transportation, rent, and school fees as binding if the respondent returns with them.

The appellant was partially successful on appeal, having a set-off amount of $325,824.41 quashed, though failing to overturn the dismissal of their claim.

The parties could not agree on costs following the appeal's mixed outcome.

The court found that while success was divided, the appellant's success on the set-off ground was of greater monetary value, justifying a costs award.

The court awarded the appellant $6,000 all-inclusive, noting the amount sought was disproportionate to the final outcome.