Michael G. Emery

The applicant sought leave to appeal interlocutory orders regarding retroactive child support and the sale of the matrimonial home.

The court dismissed the motion for leave regarding child support, finding no conflicting authority or reason to doubt the order's correctness.

However, the court granted leave to appeal regarding the matrimonial home, finding that the motion judge's failure to adjudicate the issue after the applicant amended his pleadings to include the Partition Act constituted an error of law open to serious debate.

The applicant sought leave to appeal interlocutory orders regarding retroactive child support and the sale of the matrimonial home.

The court denied leave to appeal the child support order, finding no conflicting authority or reason to doubt its correctness.

However, the court granted leave to appeal the motion judge's failure to adjudicate the motion to list the matrimonial home for sale after the applicant amended his pleadings to rely on the Partition Act.

The court held that the failure to determine the issue constituted an error of law, making the correctness of the decision open to serious debate.

The requester sought access under the Freedom of Information and Protection of Privacy Act (FIPPA) to records held by the Children's Lawyer relating to a custody and access dispute involving his children.

The Children's Lawyer refused, arguing the records were not in the custody or control of the Ministry of the Attorney General (MAG) when acting as counsel for a child.

The Information and Privacy Commissioner (IPC) ordered MAG to issue an access decision, finding the records were under MAG's control.

On judicial review, the Divisional Court held the standard of review was reasonableness, not correctness, as interpreting s. 10(1) of FIPPA is not a true question of jurisdiction.

The Court dismissed the application, finding the IPC's decision reasonable and noting that solicitor-client privilege concerns could be addressed through FIPPA exemptions.

The applicants brought a motion to find the respondents HK United Trucks Limited and Karnail Singh Mand in civil contempt for failing to comply with a prior court order requiring them to return 9 commercial trucks.

The respondents argued they were bona fide purchasers for value without notice and needed the trucks to complete contracts.

The court rejected these arguments, finding that the respondents knew or ought to have known the trucks belonged to the applicant corporation.

The court found the respondents in contempt beyond a reasonable doubt and ordered them to park and secure the trucks pending a sanction hearing.

The appellant appealed an Ontario Municipal Board decision ordering him to pay costs personally, despite not being a party to the underlying zoning appeal.

The Board had found him to be the 'real litigant' behind a residents' association.

The Divisional Court allowed the appeal, finding the Board erred in principle by failing to articulate and apply the proper legal test for determining whether a non-party is a 'real litigant' using a 'straw man' to shield themselves from costs.

The costs order against the appellant was set aside.

This costs endorsement followed two motions heard on August 29, 2016.

The defendant solicitors were successful in their motion for disclosure of a litigation file and in opposing the plaintiffs' cross-motion to strike a limitation period defence.

The court awarded partial indemnity costs to the defendant solicitors for both motions, totaling $12,607 for their motion and $2,700.12 plus HST for the plaintiffs' cross-motion.

The decision included deductions and offsets for costs related to the cross-examination of an affiant, as per Rule 39.02(4).

The appellant appealed a Small Claims Court decision awarding him $500 for a Charter breach during a traffic stop, seeking higher damages and appealing the dismissal of his claim against the OIPRD.

The respondent police cross-appealed the finding that the traffic tickets were motivated by race.

The Divisional Court allowed the cross-appeal, finding the trial judge made a palpable and overriding error by basing the racial motivation finding solely on the officer's demeanour.

The court found no Charter breach and upheld the dismissal of the claim against the OIPRD, as there was no evidence of bad faith to overcome statutory immunity.

Following a 24-day family law trial regarding child custody, both parents sought costs.

The respondent father, who was awarded sole custody, sought substantial indemnity costs of approximately $389,000 based on an offer to settle.

The court found the father was entitled to substantial indemnity costs but significantly reduced the quantum to approximately $107,000 due to his unreasonable behaviour which prolonged the trial.

Unusually, the court also ordered the Office of the Children's Lawyer to pay $20,000 of those costs jointly and severally, finding that the OCL's adversarial stance and failure to seek court assistance regarding the father's non-cooperation protracted the litigation.

The plaintiff brought a motion to stay the defendant's motion to set aside a default judgment until the defendant paid outstanding costs orders and posted security for costs.

The defendant had made an assignment in bankruptcy, staying the enforcement of pre-bankruptcy costs orders.

The only remaining costs order, made by a registrar in bankruptcy, was under appeal.

The court held that the appeal automatically stayed the registrar's costs order under Rule 63.01 of the Rules of Civil Procedure.

As no costs were currently payable, the plaintiff's motion for a stay and security for costs was dismissed.

The plaintiffs brought a motion to add several parties, including Watts and Gayton, as defendants in an action arising from a fatal scalding incident in a retirement home bathtub.

Watts and Gayton opposed the motion, arguing the limitation period had expired and they would suffer non-compensable prejudice because the plumbing apparatus was no longer available for inspection.

The court found that the plaintiffs failed to exercise reasonable diligence to discover the identities of the proposed defendants within the limitation period, as they could have obtained this information by requiring timely delivery of the original defendants' statements of defence.

The motion to add Watts and Gayton was dismissed.

The moving party brought a motion for temporary relief within a motion to change a final consent order, seeking to terminate his spousal support obligations and fix arrears.

He argued that his income had significantly decreased since his days as a successful mining executive, culminating in a consumer proposal.

The court dismissed the motion for temporary relief, finding no material change in circumstances because his current income was comparable to the income known and imputed to him at the time the final consent order was made in 2014.

The court held that a trial was necessary to resolve conflicting evidence regarding his income deductions and actual financial means.

The applicant sought judicial review of a Law Society Tribunal Appeal Division decision that denied his application for a paralegal license on the basis that he was ungovernable.

The applicant argued that the Chair of the Hearing Panel should have recused herself due to a reasonable apprehension of bias and that the Appeal Panel lacked independence.

The Divisional Court dismissed the application, finding the Appeal Panel reasonably concluded there was no apprehension of bias and that the tribunal's structure met the requisite degree of independence as directed by the legislature.

The applicant sought judicial review of two decisions by the respondent college issuing and extending a Notice of Trespass against him.

The application was brought almost three years after the second notice.

The Divisional Court dismissed the application for delay, finding the delay was lengthy, unexplained, and caused prejudice to the respondent.

The plaintiffs brought an action for solicitor negligence against their former lawyers.

Two motions were heard: the defendants' motion for a further and better affidavit of documents, and the plaintiffs' cross-motion to strike paragraphs from the statement of defence pleading a limitation period defence.

The court dismissed the plaintiffs' motion to strike, finding the limitation defence was not plain and obvious to fail.

The court granted the defendants' motion for disclosure, ordering the plaintiffs to produce the complete litigation file from their subsequent lawyers, subject to privilege claims for non-parties.

Following a successful appeal regarding a late jury notice, the Ministry of Finance sought costs of $7,500 on a partial indemnity basis for both the appeal and the motion below.

The respondent argued that no costs should be awarded because the issue was novel, or alternatively, that the quantum should be reduced.

The court rejected the novelty argument, noting the issue arose from the respondent's failure to serve a jury notice in time.

Applying the principle that costs must be fair and reasonable, the court awarded $6,264.40 to the Ministry, payable by a specified date.

The plaintiff brought a motion for summary judgment to recover $52,700, representing the balance of $75,000 advanced to the defendants.

The plaintiff argued the funds were a loan, while the defendants claimed they were an investment in a third-party scheme that ultimately failed.

Applying the summary judgment framework, the court found no genuine issue requiring a trial, determined that the funds were advanced as a loan, and granted judgment in favour of the plaintiff for the full amount claimed.

The plaintiff brought a motion to enforce answers to questions refused on cross-examination and a motion to adduce fresh evidence, following an adjournment of an underlying motion to vary a Mareva order.

The non-parties sought costs for the adjournment and the motions.

The court found the non-parties were mostly successful overall and awarded them costs on a partial indemnity basis, fixing the amounts at $9,610 for one non-party and $4,310 for the other after assessing the reasonableness of the claimed fees.

The court considered costs for a motion and cross-motion regarding child support and post-secondary education expenses.

Both parties claimed to be the successful party.

The court found divided success, as the applicant succeeded on obtaining an order for the respondent's contribution towards post-secondary expenses but failed to increase ongoing child support.

The respondent claimed success on the interpretation of the separation agreement regarding "double-dipping." Given the divided success, the court deemed it inappropriate to award costs to either party.

This is a costs endorsement following a family law trial involving claims for child support, spousal support, and equalization.

The respondent, Robert Bortolon, was largely successful in opposing the applicant's, Nathalie Murray's, claims for child and spousal support.

While Ms. Murray was ordered to pay an equalization payment to Mr. Bortolon, her success in defending against Mr. Bortolon's trust claims offset some of his success on equalization.

Considering the principles of proportionality and the Family Law Rules, the court found Mr. Bortolon to be the more successful party overall and awarded him $12,500 in partial indemnity costs, representing one-third of his requested partial indemnity costs, proportionate to his success on the support claims.

The accused, Norine Tulloch, was found guilty by a jury of possession of 260 grams of cocaine for the purpose of trafficking.

The Crown sought a three-year federal penitentiary sentence, while the defence sought a conditional sentence.

The court considered sentencing principles, mitigating factors (remorse, family support, business prospects) and aggravating factors (prior conditional sentence for a similar offence, association with drug trade).

The court imposed a custodial sentence of two years less a day to be served in a provincial reformatory, followed by two years of probation, along with ancillary orders for a DNA sample, a lifetime weapons prohibition, and forfeiture of seized currency and a notebook.