Marvin Kurz

The Death Investigation Oversight Council (DIOC) brought a motion for a sealing order over autopsy files and a redaction order for witness identities in its record of proceedings, which was filed in response to an application for judicial review by Dr. Jane Turner.

Applying the Sherman Estate test, the Divisional Court held that while identifying information in the autopsy files must be redacted to protect the dignity of the deceased infants and their families, sealing the entire files was unnecessary.

The court also refused to redact the identities of witnesses interviewed during the DIOC's investigation, finding that the open court principle did not pose a serious risk to the public interest in witness candour.

The plaintiff brought a motion for an extension of time to serve the statement of claim and for substituted service.

The court noted a previous error regarding the monetary jurisdiction, acknowledging the claim exceeded the Small Claims Court limit.

The court granted the extension of time for service and ordered substituted service by regular and registered mail.

The plaintiff brought a motion for substituted service of a statement of claim for an unpaid debt.

The court noted that the amount claimed was within the financial limits of the Small Claims Court and the defendant resided outside the jurisdiction where the action was brought.

Citing previous jurisprudence, the court raised concerns that suing out-of-jurisdiction defendants in the Superior Court for Small Claims amounts may constitute an abuse of process.

The court directed the plaintiff to provide written submissions on why the action should not be transferred to the Small Claims Court before deciding on the motion for substituted service.

The applicant mother brought a motion for shared parenting of the parties' three-year-old child following the tragic drowning death of their younger child.

After the accident, the respondent father unilaterally assumed sole care of the surviving child and restricted the mother to supervised parenting time, alleging she was responsible for the death and was an unfit parent.

The court relied on evidence from a Children's Aid Society worker who investigated the family and found no child protection concerns regarding the mother.

The court strongly criticized the father's resort to self-help and his derogation of the mother, ultimately granting the mother's motion for primary care during the week with the father having weekend parenting time.

The applicants, who operated a cannabis retail store in their condominium units, sought to stay a final consent order requiring them to permanently cease their cannabis business.

The applicants argued that a recent condominium owners' meeting, which rejected their request to repeal the condominium's rule prohibiting cannabis sales, was procedurally flawed.

The court dismissed the motion, finding that the applicants failed to meet the stringent Carlisle test for staying a final order, as the condominium corporation's conduct was not oppressive or an abuse of process.

The court also found that the applicants failed to meet the RJR-MacDonald test for a stay.

The accused was stopped for suspected impaired driving.

The officer determined he was not impaired but was driving with a suspended license.

The officer decided to tow the vehicle and conducted a warrantless inventory search pursuant to police policy, discovering drugs and a weapon.

The accused was arrested and a further search of the trunk revealed a sawed-off shotgun.

The accused invoked his right to counsel of choice, but police made inadequate efforts to contact the lawyer, questioned the accused, and directed him to duty counsel.

The court found serious violations of the accused's rights under ss. 8 and 10(b) of the Charter.

Applying the Grant framework, the court excluded the evidence under s. 24(2), finding that admitting it would bring the administration of justice into disrepute given the systemic and serious nature of the police misconduct.

The parties separated after their four-year-old child ingested a small amount of a marijuana cookie left accessible by the father.

The mother unilaterally relocated with the child to Toronto and withheld contact.

Both parties sought primary care and sought to introduce surreptitious recordings of each other.

The court excluded the secret recordings, condemning the practice in family law.

The court ordered shared primary care on a 3-1-3 schedule proposed by the father, emphasizing the child's best interests and discouraging unilateral self-help measures.

The appellants appealed two interlocutory orders made by a motions judge.

The first order prohibited the parties from bringing any summary judgment motions, and the second required the appellants to produce for discovery anyone who filed an affidavit in support of a summary judgment motion.

The Divisional Court allowed the appeals, finding that both orders were made prematurely, without an evidentiary foundation, and in a procedurally unfair manner, as the parties had not requested such relief nor had the opportunity to make submissions on it.

The defendants moved for summary judgment to dismiss the plaintiff bank's fraudulent conveyance action as statute-barred, and alternatively to discharge a certificate of pending litigation (CPL) for delay.

The plaintiff brought a cross-motion to extend the time to set the action down for trial.

The court held that the applicable limitation period for an action to set aside a fraudulent conveyance of real property is the ten-year period under section 4 of the Real Property Limitations Act, not the two-year period under the Limitations Act, 2002.

As the action was commenced within ten years, the summary judgment motion was dismissed.

The court also declined to discharge the CPL or dismiss the action for delay, finding that both parties contributed to the delay and the plaintiff would suffer prejudice if the action were dismissed.

The plaintiff's motion to extend time was granted.

Following a bifurcated motion where the applicant husband successfully obtained a stay of temporary support orders and the release of trust funds, he sought full indemnity costs of $17,986.37.

The respondent wife argued against a costs award due to her limited financial means.

The court considered the factors under Rule 24 of the Family Law Rules, including reasonableness, proportionality, and the wife's ability to pay.

The court ordered the respondent wife to pay costs fixed at $11,500, payable in any event of the cause.

Following the settlement of their family law proceeding, the applicant sought $340,000 in costs, arguing substantial success and unreasonable behaviour by the respondent regarding disclosure.

The respondent argued that no costs should be awarded given the compromises involved in the settlement.

The court reviewed the applicable legal principles for awarding costs after a settlement, noting that courts should be slow to award costs in such circumstances.

Finding that success was divided, neither party beat their offers to settle, and there was no bad faith, the court ordered that each party bear their own costs.

The applicant father brought a motion for equal shared parenting or expanded unsupervised parenting time.

The respondent mother had unilaterally restricted his parenting time following incidents involving the father's intoxication, excessive noise, and police involvement.

The court found that while the father's substance use was a concern, the mother's unilateral self-help remedies were also inappropriate.

The court ordered an expanded parenting schedule for the father, denied the mother's request for a breathalyzer requirement, but imposed strict conditions prohibiting the father from consuming alcohol or drugs before or during his parenting time, subject to a review in six months.

The mother brought a motion for a stay of a term of an interim parenting arbitration award that eliminated the requirement for the father to undergo portable breathalyzer testing four times per day during his parenting time.

The mother sought the stay pending her motion for leave to appeal the award.

The court applied the RJR MacDonald test, emphasizing that in parenting cases, the best interests of the children are paramount.

The court found no serious issue of law, no irreparable harm, and that the balance of convenience did not favour a stay, as the arbitrator had found no evidence of alcohol abuse during the father's parenting time.

The motion for a stay was dismissed.

The plaintiff contractor sued the defendant homeowners for unpaid amounts under a contract for the construction of a custom home.

The defendants counterclaimed, alleging the plaintiff breached the contract through delays, poor workmanship, and misrepresentations, and argued they were justified in refusing further payments and denying the plaintiff access to the property to fix deficiencies.

The court found that the defendants repudiated the contract by refusing to pay and locking the plaintiff out, while the plaintiff remained willing to complete the work.

The defendants' counterclaim was dismissed, and liability was found in favour of the plaintiff, with damages to be determined at a later hearing.

The appellant, a registered social service worker, appealed a Discipline Committee decision finding her guilty of professional misconduct for surreptitiously recording a meeting and posting a hyperlink to confidential child protection records online.

She argued the Committee erred because she had been acquitted of criminal and provincial offences arising from the same conduct.

The Divisional Court dismissed the appeal, holding that the Committee was not bound by the criminal acquittal due to different evidentiary standards and evidence.

The court upheld the Committee's findings that the appellant published identifying information contrary to the Child and Family Services Act and engaged in disgraceful, dishonourable, or unprofessional conduct.

The penalty, including a six-month suspension, was affirmed.

The moving party sought to terminate all past, present and future child and spousal support obligations fixed by an earlier final order that had imputed income after repeated disclosure failures.

The court held that a motion to change cannot be used as a collateral appeal from the original support order and that the moving party bore the onus of proving a material change in circumstances under s. 17 of the Divorce Act and the Guidelines.

Applying the framework in Colucci, the court found the alleged post-order income decline and inability to work were not established by reliable, complete and credible evidence, and that the moving party remained affected by the same concerns of intentional underemployment and inadequate disclosure that grounded the original imputation.

The court admitted Linked-In profile evidence, gave little or no weight to cursory medical notes, found blameworthy conduct and persistent non-disclosure, and dismissed the motion to change.

The plaintiff brought a motion for summary judgment to enforce a collateral mortgage, a share purchase agreement, and a promissory note after the defendants defaulted on payments.

The defendants argued they were entitled to a hold-back or set-off due to alleged financial misconduct by the plaintiff and claims by third-party investors.

The court found no evidence of misconduct and no contractual or legal basis for a set-off.

Summary judgment was granted, with the court applying section 4 of the Interest Act to limit the interest rate on the agreement and note to 5% annually, while enforcing the 1% monthly compound interest on the mortgage.

The plaintiff debt collection agency brought motions for substituted service in three actions commenced in the Superior Court of Justice in Milton against defendants residing in other jurisdictions for amounts well below the Small Claims Court monetary limit.

The court, on its own initiative, considered whether this practice constituted an abuse of process.

The court found that while the practice did not violate any specific rule or statute, it amounted to an abuse of process by systemically disadvantaging out-of-jurisdiction defendants and creating barriers to access to justice.

Relying on its inherent jurisdiction, the court transferred the actions to the Small Claims Court in the defendants' respective home jurisdictions and granted the requested orders for substituted service.

The moving party brought a motion for leave to appeal a temporary order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $2,350.

The moving party sought leave to appeal a February 17, 2021 decision regarding interim spousal support.

The Divisional Court granted leave to appeal on three specific issues: whether the motion judge erred by ordering a net amount of spousal support contrary to the Income Tax Act, whether a material change in circumstances was required to vary an interim without prejudice order, and whether the motion judge relied on irrelevant considerations or made palpable and overriding errors in determining the temporary spousal support amount.

Costs of $5,000 were awarded to the moving party.