M. Gregory Ellies

The moving party sought an order vacating or varying a prior consent order requiring her to pass her accounts as attorney under a continuing power of attorney for an incapable person.

She argued the order was unnecessary because expenses for the incapable person were paid from a joint bank account.

The court held that the circumstances did not fall within Rule 37.14 of the Rules of Civil Procedure and that consent orders may only be varied under Rule 59.06 in limited situations such as fraud or where the order fails to reflect the parties’ intentions.

The evidence did not establish any such basis, and the existence of a joint account predated the consent order.

The court concluded that the moving party remained obligated to pass her accounts and dismissed the motion.

The applicant sought judicial review of the Ministry of Transportation's alleged refusal to grant a development permit for a gas bar unless the applicant entered into an agreement restricting the transfer of the lands.

The Divisional Court dismissed the application, finding that the Ministry had not purported to require the agreement, but rather offered it as an alternative to standard setback requirements.

Furthermore, the application was premature as the applicant had not submitted a revised site plan, meaning no statutory power of decision had yet been exercised.

The Crown appealed an acquittal on a charge of operating a motor vehicle with a blood alcohol concentration exceeding the legal limit after breath sample evidence had been excluded under s. 24(2) of the Charter.

The trial judge had found a breach of the respondent’s right to counsel under s. 10(b) because police failed to give a reasonable opportunity to contact counsel of choice, defaulted quickly to duty counsel, and failed to facilitate contact beyond leaving a single voicemail.

The appellate court held that the informational and implementational components of s. 10(b) were breached where the accused reasonably believed he had no option but to speak with duty counsel rather than wait for his chosen lawyer.

Despite the reliability and minimally intrusive nature of breath evidence, the seriousness of the Charter breach justified exclusion to protect the integrity of the justice system.

The Crown’s appeal from the acquittal was dismissed.

Following a successful motion by the plaintiff to set aside a registrar’s administrative dismissal of an action, the court addressed the issue of costs.

Although the plaintiff succeeded in reinstating the action, the court held that the defendants were entitled to their costs because the reinstatement constituted an indulgence and the defendants were not unreasonable in opposing the motion.

The court found that the defendants had legitimate grounds to resist reinstatement given the long delay and expiry of the limitation period.

The request for substantial indemnity costs was rejected, but the defendants were awarded partial indemnity costs.

The appellant mother appealed a summary judgment order making her child a Crown ward without access.

She sought to introduce fresh evidence, arguing her former counsel provided ineffective representation by failing to request disclosure and an adjournment.

The Divisional Court admitted the fresh evidence but dismissed the appeal, finding the new evidence would not have changed the outcome given the mother's history of substance abuse and non-compliance.

The court also rejected arguments that the motion judge erred in his treatment of sibling access and the denial of access to the mother, finding no errors in the consideration of the child's best interests and need for permanency.

The plaintiff commenced an action for damages arising from a workplace slip and fall.

The action was administratively dismissed for delay after the plaintiff's lawyer inadvertently missed a deadline and failed to receive the status notice.

The plaintiff brought a motion to set aside the dismissal.

The court found that while the plaintiff failed to satisfactorily explain the delay, her lawyer's inadvertence, the promptness of the motion, and the complete lack of significant prejudice to the defendants justified setting aside the dismissal order.

The appellant appealed a decision of the Social Benefits Tribunal upholding the suspension of his Ontario Works benefits.

He argued he was denied procedural fairness because the Tribunal held a telephone hearing rather than an in-person hearing.

The Divisional Court dismissed the appeal, finding the Tribunal had discretion to hold an electronic hearing, the appellant suffered no prejudice, and he failed to demonstrate any error of law in the Tribunal's decision.

The appellant mother appealed a summary judgment order making her child a Crown ward without access.

She argued that her former counsel provided ineffective representation by failing to request disclosure and an adjournment, and that the motion judge erred in his treatment of access, including sibling access.

The Divisional Court admitted fresh evidence but dismissed the appeal, finding that the fresh evidence would not have changed the outcome of the summary judgment motion and that the motion judge made no errors in his access determination.

The moving party (defendant insurer) sought leave to appeal an order dismissing its motion to remove the responding party's (plaintiff's) counsel.

The removal motion was brought because the responding party's counsel retained two experts (a psychologist and an occupational therapist) who had previously been retained by the moving party to assess the responding party's disability claim.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's conclusion that no confidential or litigation-privileged information had been imparted to the experts by the moving party, and that there is no property in an expert witness.

The accused was tried on charges arising from a fatal ATV rollover after a night of social drinking.

The court held that the Crown failed to prove beyond a reasonable doubt that the accused's ability to operate the vehicle was impaired by alcohol, preferring the evidence of the eyewitness and attending officer over unreliable lay observations from other young witnesses.

The court further held that, even if impairment had been proven, causation was not established because the rollover was explained by the vehicle's instability and sharp turning capability at low speed.

The accused was acquitted of impaired driving causing death and over-80 causing death, but convicted of taking the ATV without consent.

The Crown appealed an acquittal on multiple sexual offence charges involving a child complainant.

The appeal court held that, read in the context of the evidence and submissions, the trial judge's reasons did not disclose why he found a conflict of equally credible evidence or how he arrived at reasonable doubt.

Applying the governing framework on sufficiency of reasons and the principles associated with W. (D.), the court found the verdict could not be meaningfully reviewed on appeal.

The acquittal was set aside and the matter remitted for a new trial, but convictions were not substituted.

The applicant, a resident of the United States, was charged under the Environmental Protection Act with failing to comply with a court order.

A summons was sent to him by registered mail pursuant to s. 26(3) of the Provincial Offences Act.

The applicant brought an application for an order prohibiting the Provincial Offences Court from continuing the proceeding, arguing that s. 26(3) does not expressly authorize service outside of Ontario or Canada.

The court dismissed the application, applying the modern principle of statutory interpretation to find that s. 26(3) implicitly authorizes service of a summons via registered mail upon an individual who resides anywhere outside of Ontario, including outside of Canada.

This was a costs endorsement following a family law proceeding in which the successful responding party sought $8,000 in costs on a substantial indemnity basis.

The court applied Rule 24(10) of the Family Law Rules and the Court of Appeal's decision in Islam v. Rahman to conclude that costs could not be awarded for an earlier procedural step where no costs order had been made at the time.

The claimed amount was therefore reduced by removing the September 18 appearance costs and part of the preparation time.

An additional $500 in previously reserved costs from a later appearance was added, for a total costs award of $5,500.

This was a costs-only endorsement following an earlier ruling.

The successful party sought $1,148.02 all-inclusive after responding to an application commenced in contravention of a prior vexatious litigant order under s. 140 of the Courts of Justice Act.

Applying the presumption in rule 24(1) of the Family Law Rules, the principle of indemnity in rule 57.01(0.a) of the Rules of Civil Procedure, and the requirement that costs be fair and reasonable, the court held the amount claimed was fair and reasonable.

Costs were awarded in full.

On a motion to change that proceeded to trial, the applicant sought termination of child support for an adult daughter with a chronic illness.

The court held that, despite uncertainty about the daughter's future and her medical condition, the evidence showed she was presently able to withdraw from parental charge and obtain the necessities of life, including through ODSP and her living arrangements.

Applying the Divorce Act definition of “child of the marriage”, the court found she no longer met that status at present.

The prior support order was terminated, with no costs awarded.

The plaintiff mortgagees moved for summary judgment arising from a chattel mortgage over a mobile home after the defendants defaulted on monthly payments.

The court held there was no genuine issue requiring a trial on the plaintiffs' entitlement to possession of the collateral and on their entitlement in principle to payment of principal, interest, and insurance amounts authorized by the mortgage.

However, material factual disputes remained regarding the number of missed payments, the date from which interest was payable on certain defaults, the amount of insurance premiums paid, and whether lot rental payments were recoverable at all.

A trial was therefore required on those disputed monetary issues.

The defendants moved to strike an overlong and prolix statement of claim arising from an alleged failure to treat a child, a report to child protection authorities, and alleged defamation in medical records and related reporting.

The self-represented plaintiff sought to strike counsel's supporting affidavit and to dismiss the hospital's parallel motion on procedural grounds.

The court rejected those procedural objections, holding that an affidavit sworn by a lawyer in the same firm was not improper on these facts and that the hospital's filing deficiencies were mere irregularities.

Applying Rule 25.11, the court found the pleading so filled with evidence, argument, and unnecessary verbatim conversations that the offending portions could not practicably be severed.

The entire statement of claim was struck with leave to file a Fresh as Amended statement of claim within 30 days.

The appellants appealed a Small Claims Court decision awarding the respondent $25,000 in damages and $7,500 in costs, payable jointly and severally by the appellants and their lawyer.

The appellants argued the deputy judge should have recused himself due to bias, the costs were excessive, and costs should not have been awarded against counsel.

The Divisional Court dismissed the appeal regarding the damages and the quantum of costs, finding no reasonable apprehension of bias and no error in the costs assessment.

However, the court allowed the appeal regarding costs against the appellants' lawyer, finding he was not given sufficient notice under Rule 57.07.

In a wrongful dismissal action, the moving party sought production of an internal email exchanged during the employer’s misconduct investigation and copied to external employment counsel.

The court applied the settled test for solicitor-client privilege and held the employer failed to prove the email entailed the seeking or giving of legal advice.

The surrounding evidence suggested the author was providing an internal unbiased opinion on discipline rather than communicating for the purpose of obtaining legal advice, and the employer relied only on weak hearsay evidence on the author’s intention instead of best evidence.

The motion to compel production was granted, with costs to the moving party subject to written submissions.

The appellant sought to set aside a Small Claims Court order dismissing his dental negligence action for failing to comply with settlement conference orders requiring expert reports.

The court held that the order was mandatory, that the appellant had ample time to obtain the required report, and that the record did not establish reasonable efforts to do so.

The court further held that expert evidence was necessary to establish the applicable standard of care and breach in the professional negligence claim, and that fairness required disclosure of the substance of any expert opinion.

The appeal was dismissed.