McCarthy

The Office of the Public Guardian and Trustee brought a motion to be appointed as the guardian of property and personal care for an incapable adult, seeking to remove the adult's sister from the role.

The court found that the sister had failed to act in the incapable adult's best interests by removing her from a successful group home placement, failing to secure appropriate alternative residential care, leaving her to languish in a hospital mental health ward, and failing to pass her accounts.

The motion was granted, the sister was removed as guardian, and the Public Guardian and Trustee was appointed in her place.

The moving party sought leave to register a certificate of pending litigation over residential property in support of a claim arising from an alleged unpaid private loan advanced for construction and improvements.

The court held the asserted restriction on sale pending repayment was purely contractual and did not create a proprietary interest in land.

The claim was characterized as one for debt or damages, not constructive trust, resulting trust, or specific performance.

In the alternative, the court held the equitable factors governing certificates of pending litigation also weighed against relief because damages were an adequate remedy, the amount outstanding remained uncertain, and registration could impede financing needed to complete construction.

The plaintiff construction manager brought a preliminary motion for the production of settlement documents between the defendant owners and a sub-trade.

The defendants had made a direct payment to the sub-trade and sought to reduce the security posted to vacate the plaintiff's lien.

The plaintiff argued the settlement documents were relevant to the security reduction motion and fell under exceptions to settlement privilege.

The court dismissed the motion, finding the settlement details irrelevant to the summary nature of the security motion and noting the merits of the counterclaim were not at issue at this stage.

The defendant pleaded guilty to possession for the purpose of trafficking 1279 grams of cocaine.

The Crown sought a three-year custodial sentence, while the defendant sought a conditional sentence of two years less a day.

The court weighed mitigating factors, including the defendant's minor role, remorse, and compliance with house arrest, against the significant quantity of cocaine and the need for denunciation and deterrence.

The court concluded that a conditional sentence would not adequately address denunciation and deterrence, and imposed a three-year custodial sentence.

Following the settlement of two personal injury actions arising from a motor vehicle accident, the parties could not agree on the quantum of costs and pre-judgment interest (PJI).

The plaintiffs sought over $163,000 in costs, while the defendants argued for a lower amount based on the settlement value of $375,000.

The court rejected the plaintiffs' extensive bill of costs, finding it disproportionate and offensive to the principle of indemnity given likely contingency fee arrangements.

The court fixed costs at $84,750 (inclusive of HST), representing 20% of the net recovery, and awarded $14,354.75 in PJI, representing half of the plaintiffs' claim, due to the impossibility of apportioning the all-inclusive settlement funds.

The 19-year-old first-time offender was found guilty of possession of a loaded restricted firearm and possession of 28.58 grams of cocaine for the purpose of trafficking.

The Crown sought a global sentence of 4 years, while the defence sought a net sentence of 2 years and 1 month after enhanced credit.

The court emphasized denunciation and deterrence, noting the danger of combining drugs and loaded firearms.

The court imposed a global sentence of 4 years (3 years for the firearm and 1 year consecutive for the drugs), less 200 days of pre-sentence and Downes credit, resulting in a remnant sentence of 3 years and 165 days.

The plaintiff was injured in a motor vehicle accident involving a rental vehicle leased by the defendant lessee but driven by an unauthorized third party.

The sole issue at trial was whether the lessee had given express or implied consent to his friend to possess the vehicle, which would make the lessee vicariously liable under s. 192(3) of the Highway Traffic Act.

The court rejected the lessee's evidence that he had flatly refused his friend's request to use the vehicle, finding his subsequent conduct inconsistent with a refusal.

The court concluded that the presumption of consent was not rebutted and held the lessee vicariously liable for the negligent operation of the vehicle.

The plaintiff sought damages for wrongful dismissal, arguing that his employment with the defendant municipality was permanent and indefinite despite being hired under a contract with an expected duration of two years.

The defendant maintained that the plaintiff was employed under a fixed-term contract that was extended four times before expiring.

The court found no ambiguity in the employment agreement or the extension notices, concluding that the plaintiff was employed under a fixed-term contract.

As the contract simply expired, there was no wrongful dismissal, and the plaintiff's claim was dismissed.

The offender, a 35-year-old first-time offender, was convicted by a jury of trafficking one ounce of fentanyl to an undercover officer.

Despite her recent rehabilitation efforts, the court found she lacked insight into the gravity of the offence and played a key role as a broker in the transaction.

Emphasizing the lethal nature of fentanyl and the need for denunciation and deterrence, the court rejected a conditional sentence and imposed a four-year penitentiary term.

The defendant brought a motion under Rule 21.01 to determine whether the plaintiff was barred from bringing a tort action under s. 267.6(1) of the Insurance Act for operating an uninsured dirt bike at the time of the collision.

The collision occurred on private property.

The court held that the plaintiff was not barred from suing, as the prohibition under the Compulsory Automobile Insurance Act only applies to uninsured vehicles operated on a highway at the time of the incident.

The motion was dismissed.

The applicant sought an equitable remedy to allocate the payment of a mortgage and a costs award from the proceeds of sale of a property (Osprey) that had been fraudulently conveyed to her, rather than from an adjacent lot.

The respondent university, a judgment creditor of the applicant's former partner, opposed the application.

The court dismissed the application, finding that previous court orders had nullified the applicant's interest in Osprey and granted the university enforcement rights against it.

The court also held that the mortgagee was entitled to pursue its remedy against the adjacent lot, and that the equitable doctrine of marshalling would have compelled this result to protect the university's unsecured interest.

Following the dismissal of the plaintiff's claim after a mini-trial, the successful defendant sought costs on a substantial indemnity basis.

The plaintiff argued that the parties should bear their own costs or that she should receive a net costs award due to her costs of resisting a prior summary judgment motion.

The court rejected the plaintiff's argument, noting the defendant was entirely successful.

However, the court declined to award substantial indemnity costs due to the defendant's failure to provide a proper accounting as a fiduciary and his deceptive conduct regarding property valuation.

Costs were awarded to the defendant on a partial indemnity scale fixed at $58,443.75.

The plaintiff, acting through her guardian of property, brought an action against her daughter for the recovery of funds misappropriated while the daughter acted as her attorney for property.

The court found that the defendant failed to keep proper accounts, commingled funds, and used the incapable person's money for her own benefit, breaching her fiduciary duty under the Substitute Decisions Act.

The court awarded damages of $86,649.57, representing 75% of the unaccounted funds plus the costs of a previous guardianship application, and ordered the return of any remaining funds held in trust.

Following the successful summary judgment motion dismissing the plaintiff's claim, the defendant Town of Hanover sought costs of $43,447.34.

The self-represented plaintiff opposed the costs award.

The court applied Rule 57.01, noting the defendant's unaccepted offer to settle for a dismissal without costs, the complexity of the motion, and the proportionality of the costs claimed.

The court awarded the defendant its full costs claimed.

The guardians of an incapable person moved to amend a management plan to allow for the sale of a property co-owned by the incapable person and her spouse.

The spouse, a non-party who had previously financially exploited the incapable person, opposed the sale indirectly through the incapable person.

The court found the incapable person's opposition was unreliable and the product of the spouse's influence.

The court granted the motion, ordering the sale of the property as it was in the incapable person's best interests.

The court also ordered costs on a full indemnity basis to be paid from the proceeds of the sale prior to distribution, effectively making the non-party spouse liable for half the costs due to his gross misconduct.

The plaintiff brought an action against the defendant for fraudulent diversion of equity, loss of opportunity, and punitive damages arising from two transfers of her matrimonial home.

The parties had entered into an unwritten management plan where the defendant held the property in trust to secure better financing while the plaintiff continued to reside there.

The court found that a fiduciary relationship existed, but the defendant did not breach any fiduciary duty or fraudulently divert equity.

The defendant provided a full and proper accounting of the funds, and the plaintiff failed to prove any damages.

The action was dismissed.

The appellant appealed his conviction for sexual assault.

The incident occurred after the appellant, the complainant, and her partner returned to a residence after drinking.

The trial judge rejected the appellant's testimony as illogical and accepted the complainant's evidence.

On appeal, the appellant argued the trial judge erred in applying the W.(D.) principles, assessing credibility, and refusing an adjournment for a Seaboyer application.

The Superior Court of Justice dismissed the appeal, finding the trial judge's factual conclusions were supported by the evidence and there were no errors of law.

The applicant, charged with firearm and drug offences, brought a Charter application seeking the exclusion of evidence under s. 24(2).

He argued that his rights under ss. 8, 9, and 10(b) were violated during a high-risk police takedown where he was detained, searched, and his satchel was found to contain a loaded handgun and drugs.

The court found that the police had reasonable grounds for an investigative detention and that the search of the satchel was a lawful search incident to that detention due to safety concerns.

The court also held that the brief delay in providing rights to counsel was justified by the need to secure the scene.

The application was dismissed.

The appellant appealed his conviction for sexual assault, raising five grounds including reasonable apprehension of bias, misapplication of the twin myths regarding delayed reporting, uneven credibility assessment, misapprehension of evidence, and errors in finding no motive to lie.

The Superior Court of Justice reviewed the trial judge's interventions and credibility findings, concluding there was no reasonable apprehension of bias and that the trial judge's factual findings were entitled to deference.

The appeal was dismissed.

Following the dismissal of the plaintiffs' medical malpractice action on a summary judgment motion due to the expiry of the limitation period, the successful defendant sought costs of $117,413.06.

The plaintiffs did not dispute the presumptive entitlement to costs but argued for a reduction.

The court found the claimed 388 hours of lawyer time excessive, noting the action did not advance to trial preparation and the limitation issue was not novel.

Exercising its discretion under section 131 of the Courts of Justice Act, the court reduced the fees to ensure proportionality, fixing the total costs payable by the plaintiffs at $72,375.25 inclusive of disbursements and HST.