M. Gregory Ellies

Following dismissal of a motion for an injunction seeking to enforce a non‑competition agreement, the court addressed the issue of costs.

The moving party had sought to enjoin former advisors and a financial services firm from operating a competing branch, but failed to establish an enforceable restrictive covenant or a serious issue to be tried.

The successful defendants sought partial indemnity costs.

The court held that one group of defendants was entitled to costs but denied costs to the corporate defendant due to its pre‑litigation conduct, which the court described as outrageous and contributing to the litigation.

Costs of $40,000 inclusive were awarded to the remaining defendants.

The offender pleaded guilty to manslaughter based on criminal negligence in relation to the death of his infant child.

The Crown and defence jointly proposed a six‑year penitentiary sentence but disputed the appropriate credit for pre‑sentence custody under ss. 719(3) and 719(3.1) of the Criminal Code.

The court accepted the joint submission, emphasizing denunciation and deterrence given the abuse of a vulnerable infant and breach of parental trust.

Enhanced credit for pre‑sentence custody was granted due to segregation, safety concerns arising from the nature of the offence, and communication restrictions with the offender’s spouse.

The court applied mixed credit rates for different custody periods and imposed ancillary orders including a lifetime firearms prohibition and a DNA order.

Shareholders applied for a declaration that a respondent shareholder was out of time to commence arbitration under a shareholder agreement governing the purchase of shares after termination of employment.

The court held that it had jurisdiction to determine the limitation period issue notwithstanding the arbitration clause.

Applying the discoverability principles under the Limitations Act, 2002 and s. 52 of the Arbitration Act, 1991, the court concluded the limitation period began when the value of the shares was determined and the applicants refused payment, not when the employment relationship ended.

The arbitration had been commenced within the two-year limitation period by written notice demanding arbitration.

The court declined to interfere with the appointment of the arbitrator or the arbitral procedure.

Following dismissal of a summary judgment motion that sought to bar an unjust enrichment claim on limitation grounds, the applicant requested costs based on her success.

The court held that although the motion had been dismissed, the outcome resulted partly from the applicant’s own failure to amend her pleadings to properly include the unjust enrichment claim after obtaining leave to do so.

The respondent had also failed to plead the limitation issue, contributing to the motion’s failure.

In the circumstances, the court determined that awarding costs to the applicant would improperly reward her pleading deficiency.

The request for costs was therefore dismissed and no costs were awarded to either party.

The Crown brought an application concerning the forfeiture and destruction of devices seized during a criminal investigation involving materials potentially subject to solicitor-client privilege.

The court reviewed the draft order submitted on consent by the parties and determined that it should issue with modifications requiring a detailed report describing the manner in which the seized devices and forensic images were destroyed.

The court held that judicial supervision over materials seized from a law office includes oversight of their ultimate destruction in order to preserve confidence in the protection of solicitor-client privilege.

The parties were invited to make written submissions regarding the proposed amendments before the order would be finalized.

The respondent in a family property dispute brought a motion for summary judgment seeking dismissal of an unjust enrichment claim on the basis that it was barred by the two‑year limitation period under the Limitations Act, 2002.

The moving party argued the claim was commenced outside the limitation period.

The responding party contended that either the ten‑year limitation period under the Real Property Limitations Act applied, that no limitation period applied to the equitable claim, or that the issue required a trial.

The court held that the summary judgment motion could not be determined on the existing record because the application had not yet been formally amended to plead unjust enrichment and the responding party had not pleaded the limitation defence.

The motion was therefore dismissed and no costs were awarded.

The appellant father appealed a motion judge’s order granting the respondent mother sole temporary custody of the parties’ eight‑year‑old child after the mother relocated with the child from Kingston to Parry Sound.

The father argued the motion judge erred by finding he consented to or acquiesced in the relocation and by failing to treat the matter as a mobility case.

The court refused to admit fresh evidence, holding it failed the Palmer test because it could have been adduced earlier and would not have affected the result.

The court found no palpable and overriding error in the motion judge’s factual findings and concluded the decision appropriately focused on the child’s best interests and the disruption that a return to Kingston would cause.

The appeal was dismissed.

The plaintiff sought interlocutory injunctions enforcing non‑competition and non‑solicitation clauses in a 2004 agreement against several financial advisors and a related investment dealer after the advisors opened a competing branch nearby.

The court applied the RJR‑MacDonald test and considered whether the restrictive covenants were reasonable in geographic scope, temporal scope, and scope of prohibited activity.

Although the geographic scope was arguably reasonable and there was a serious issue to be tried regarding temporal scope, the court found the activity restrictions overly broad and therefore unreasonable.

As a result, the plaintiff failed to establish the required strength of case to justify interlocutory injunctive relief.

The balance of convenience also weighed against granting the injunction because a competing branch would operate regardless.

The motion for interlocutory injunctions was dismissed.

The moving party sought to vary a spousal support order made by the Alberta Court of Queen’s Bench requiring payment of $2,000 per month.

The motion was commenced in Ontario under the Family Law Act rather than the Interjurisdictional Support Orders Act, 2002.

The court held that Rule 5(1)(a) of the Family Law Rules is procedural and does not confer jurisdiction to vary a foreign support order.

Applying the real and substantial connection test and the factors articulated in Muscutt, the court found insufficient connection between Ontario, the parties, and the subject matter, and was not satisfied that proper service ex juris had occurred.

The motion was dismissed, without prejudice to bringing a proper application under the Interjurisdictional Support Orders Act, 2002.

The applicant sought to quash a preliminary inquiry order committing him to stand trial for second degree murder arising from the death of his infant child.

He argued the preliminary inquiry justice committed a jurisdictional error by failing to consider his exculpatory statement that the injuries resulted from an accidental fall during bathing.

The court held that the preliminary inquiry justice properly considered both inculpatory circumstantial evidence and exculpatory direct evidence in accordance with the test articulated in R. v. Arcuri.

The expert medical evidence describing the severity and nature of the injuries, combined with conflicting statements by the applicant, was reasonably capable of supporting an inference of intentional infliction of injuries.

As a result, the committal for trial was proper and no jurisdictional error occurred.

The applicants sought to set aside a vesting order that removed a trust company and a deceased partner from title to an island property and vested title solely in the respondent.

They argued the order was made without notice and that the Statute of Frauds barred reliance on an alleged oral agreement transferring the property.

The court held that once a vesting order is registered on title, its attributes as a court order are spent and it cannot be set aside under Rule 38.11.

Treating the application as one for rectification of title under the Land Titles Act, the court found sufficient evidence of part performance supporting an oral agreement transferring the deceased partner’s interest.

The evidence did not establish that the applicants were entitled to rectification of the register.

The moving party sought summary judgment dismissing negligence claims arising from a boating accident in which a child riding on an inner tube collided with the moving party’s boat.

The primary operator of the towing vessel had been noted in default, admitting negligence.

The court considered whether there was any evidentiary basis for potential negligence by the moving party and whether the action against him had no reasonable chance of success.

Finding inconsistencies between affidavit evidence and prior sworn testimony about the positioning and movement of the boat, the court held that issues of negligence and causation required a full evidentiary assessment.

Summary judgment was therefore inappropriate and the matter was ordered to proceed to trial.

Following a trial where the defendants were ordered to repay $25,000 to the plaintiff estate, the defendants declared bankruptcy.

The plaintiff sought a declaration that the debt survived the bankruptcy under section 178(1) of the Bankruptcy and Insolvency Act.

The court found it had jurisdiction to hear the matter as no formal order had been entered.

The court held that the defendants were acting in a fiduciary capacity when they held the deceased's money and that their failure to return it constituted misappropriation under s. 178(1)(d).

The debt therefore survived the bankruptcy.

Costs were awarded to the plaintiff on a substantial indemnity basis in the amount of $43,249.62.

In an application concerning hydro-electric property tax exemptions under section 3(1), paragraph 18 of the Assessment Act, the court determined that most disputed station components qualified as machinery and equipment used for producing electricity for sale to the general public.

The court rejected a narrow interpretation requiring direct transformation use and held all power produced at the stations met the sale-to-general-public requirement.

The court also held the applicant could not rely on paragraph 17 as an alternative exemption route.

Due conflicting expert evidence, the scope of exempt foundations required further expert process and a trial on that issue.

The appellant appealed a Small Claims Court judgment finding it partially liable for a customer’s business losses after a mobile device failed to function overseas due to the absence of a SIM card.

The appeal primarily concerned the interpretation and applicability of a limitation of liability clause in the service agreement and whether the trial judge erred in findings relating to gross negligence and mitigation.

The court held that the exclusion clause did not clearly apply to the complete failure of the device to function for its intended purpose and was at best ambiguous, requiring interpretation against the drafting party.

The court also found no reversible error in the trial judge’s credibility findings or assessment of mitigation.

The appeal was dismissed and the damages award upheld.

The accused brought a pre‑trial motion seeking exclusion of physical evidence under s. 24(2) of the Charter, arguing it was obtained through searches authorized by a defective general warrant.

The court found the information to obtain the warrant contained irrelevant discreditable conduct, misleading and incomplete information, and unsupported assertions about the accused’s presence near the crime scene, resulting in a breach of s. 8 of the Charter.

Because the CDSA warrant was based on information gathered through execution of the invalid general warrant, it also violated the accused’s s. 8 rights.

Applying the framework from R. v. Grant, the court held that although the Charter breach was serious and intruded upon residential privacy, the police conduct was not deliberate and the evidence was reliable and important to the prosecution.

Balancing these factors, the court declined to exclude the evidence.

In a pretrial motion in a prosecution for attempted murder, the Crown sought to admit several pieces of correspondence involving the accused and officials of a school board where he had been employed as a teacher.

The Crown argued the documents demonstrated animus and motive toward the alleged victim, a school board director.

The defence argued the letters constituted discreditable conduct evidence whose prejudicial effect outweighed any probative value.

The court reviewed the governing principles for admissibility of discreditable conduct evidence, including the balancing of probative value against prejudicial effect and the relevance of motive evidence.

The court concluded the letters were admissible because they were relevant to the accused’s state of mind and motive, and their probative value outweighed any prejudicial impact.

The parties separated after a 14-year marriage with four children.

The mother sought sole custody and permission to relocate the children to Mississauga, while the father sought shared parenting.

The court granted sole custody to the mother but prohibited the relocation of the twins, emphasizing the maximum contact principle and the children's established ties in Sudbury.

The court imputed additional income to the father for child and spousal support purposes.

The mother's claim for a constructive trust over the father's pension, which survived his bankruptcy, was denied because the bankruptcy statute provided a juristic reason for the enrichment.

However, the court ordered the father to pay periodic spousal support upon his retirement to account for the pension's value.