Michael G. Emery

RBC General Insurance Company brought an action against its insured, Pamela Field, to recover accident benefits and property loss payments.

RBC alleged that Field made false statements and committed fraud by claiming her driver's license was suspended in error at the time of a motor vehicle accident, and by providing fabricated documents and bank statements to support her claims.

The court found that Field knowingly made false representations and engaged in fraudulent conduct, breaching her insurance policy and the reciprocal duty of good faith owed to her insurer.

RBC was awarded repayment of accident benefits and property loss, totaling $239,788.56, plus $24,000 in punitive damages.

However, RBC's claim for damages related to medical and occupational assessment expenses was disallowed due to insufficient proof of necessity and foreseeability.

The applicant mother brought a motion for the appointment of a parenting coordinator, interim and retroactive spousal support, and life insurance as security for support.

The respondent father brought a cross-motion to extend an access visit for one day to celebrate a religious holiday.

The court granted the father's cross-motion, finding no reason to condition it on the mother's requests.

The court dismissed the mother's request for a parenting coordinator, stating it was not required for an existing access protocol.

Interim spousal support was awarded to the mother at the low end of the SSAG range ($7,500/month), and the father was ordered to arrange life insurance as security.

Retroactive spousal support was reserved for trial.

The plaintiff, Trade Capital Finance Corp., brought a motion to compel Carlo De Maria to answer questions from his cross-examination on an affidavit supporting a motion by non-parties 2454904 Ontario Inc. and Red Quest Holdings Inc. to vary a Mareva Injunction.

The plaintiff also sought to admit fresh evidence related to banking activities of The Cash House Inc. and DoUknow Inc. The court granted the motion to admit fresh evidence to the extent it supported compelling an answer to one specific question (Q121) regarding DoUknow Inc.'s operating capital, finding it relevant to the true value of The Cash House Inc. shares and the proposed transaction.

All other questions and undertakings from the May 17, 2016 cross-examination were dismissed, as were undertakings from a November 25, 2015 cross-examination, which were deemed moot.

The Minister of Finance, representing the defendant Abdirissaq Nor, appealed a Master's order that dismissed their motion to strike a jury notice.

The plaintiff, Michael Leadbetter, had served the jury notice after the close of pleadings without obtaining leave, contrary to Rule 47.01 of the Rules of Civil Procedure.

The Master, in his decision, effectively granted leave by declining to strike the jury notice, relying on Rules 2.01 and 1.04.

The Superior Court, on appeal, found that the Master erred in law by converting the motion to strike into a de facto motion for leave.

The court clarified that Rules 2.01 and 2.03 provide curative or dispensing powers for non-compliance, but do not grant the authority to provide judicial permission (leave) for a step that requires it.

As no motion for leave was brought by the plaintiff, the Master lacked the power to make the order.

The appeal was allowed, and the Master's order was set aside.

The applicant sought to compel the respondent to comply with a separation agreement regarding post-secondary expenses for their child and to increase monthly child support by imputing a higher income to the respondent.

The respondent cross-moved to reduce child support and adjust Section 7 expenses.

The court found the respondent was not intentionally under-employed despite reducing extra work due to new family responsibilities, thus declining to impute a higher income.

The court interpreted the separation agreement to exclude living expenses from Section 7 post-secondary costs, reducing the total amount payable by both parents.

The child's contribution to education was not deducted from the parents' share.

Following a motion for interim custody where a shared parenting regime was ordered, the respondent sought costs of $38,966 on a full recovery basis.

The applicant opposed, arguing for no costs or costs reserved to the trial judge.

The court found the respondent was the more successful party but declined to apply Family Law Rule 18 as her offer to settle was not strictly met.

Applying the factors in Family Law Rule 24(11) and the objectives of costs, the court awarded the respondent costs on a partial indemnity basis fixed at $17,500 for fees plus HST and disbursements.

The applicant, Sahara Lawyer Professional Corporation, brought a motion to compel the respondent, Lata Menon, to attend cross-examination on her affidavits.

Menon had acted as outside counsel for Sahara and held referral fees in trust, leading to an application by Sahara for an accounting and payment of funds, and a separate interpleader application by Menon.

The motion to compel cross-examination was opposed by Menon, Subhash Sharma, and Amandeep Kapila, who raised issues of proper service, prematurity due to a dispute over Sahara's share ownership, and counsel authority/conflict of interest.

The court granted Sahara's motion, finding that Virender Sharma, as the sole director, had authority to instruct counsel for Sahara, and that prior court orders did not preclude the cross-examination.

Nathalie Murray sought spousal and child support from Robert Bortolon, requesting a significant income imputation to him.

Her child support claim also relied on Robert standing in the place of a parent to her two sons.

Robert primarily sought an equalization payment and claimed a proprietary interest in the matrimonial home.

The court dismissed Nathalie's claims for child and spousal support, finding Robert did not stand in the place of a parent and that Nathalie had no legal basis for spousal support.

The court also found no basis to impute a higher income to Robert.

Robert's claim for a proprietary interest in the matrimonial home was dismissed.

Ultimately, Nathalie was ordered to pay Robert an equalization payment of $5,816.

The applicant mother and respondent father both sought sole custody of their 13-year-old son.

The child had been living primarily with the father and paternal grandparents since separation.

A Section 30 assessment recommended shared parenting or sole custody to the mother if the father did not move away from his parents, but the court found the assessors favoured the mother.

Following a judicial interview where the child expressed a strong preference to live with his father and fear of his mother, and considering the father's ability to provide a stable environment, the court awarded sole custody to the father.

The mother was granted access every other weekend, with overnight visits conditional on OCL approval of sleeping arrangements, and both parties were ordered to attend counselling.

The court considered costs submissions from both self-represented parties following a trial concerning custody/access and equalization of net family property.

Applying Family Law Rules 18 and 24, and the objectives from Fong v. Chan and Serra v. Serra, the court found success was divided.

The respondent succeeded on the access issue, and the applicant succeeded on the equalization issue.

Costs were apportioned on a partial indemnity basis, awarding the respondent $5,500 for the access issue and the applicant $7,750 for the equalization issue.

Neither party was awarded costs for their own time.

The respondent was ordered to pay the applicant a net amount of $2,250.

This endorsement arises from a case management conference convened to coordinate an action and four related applications stemming from the breakup of a law firm.

The court made several procedural orders, including vacating and rescheduling hearing dates for various motions, converting a motion to written submissions, and setting timelines for affidavits and submissions.

The endorsement also addresses the interpretation of a previous order regarding cross-examinations and outlines the process for scheduling further motions, including one to compel attendance at cross-examinations and another to remove counsel of record.

The trial addressed adjustments to child access, child support, and net family property.

The applicant father sought changes to access due to concerns about the respondent mother's alcohol use, while the mother raised concerns about the father's financial management.

The court granted joint custody with specific decision-making allocations and a shared parenting schedule.

The father's request for altered exchange procedures due to alcohol concerns was denied as unreasonable, but the mother was ordered to undergo an alcohol addiction assessment.

The post-nuptial agreement was set aside due to non-disclosure and factual errors, leading to a net family property equalization payment of $58,108 from the mother to the father, after various adjustments for pre-marital equity, shared debts, and other financial matters.

Child support was set at $84 per month payable by the mother to the father, and Section 7 expenses were to be shared proportionally.

Following a motion to change, the self-represented applicant father sought costs of $1,200 for his time spent attending court.

The respondent mother did not file responding submissions.

The court applied the principles from Fong v. Chan, noting that self-represented litigants must demonstrate an opportunity cost by foregoing remunerative activity to recover costs for their time.

As the applicant provided no evidence of lost income or opportunity cost, the court declined to award costs to either party.

The plaintiff sought an adjournment of a motion brought by non-parties to vary an interim Mareva injunction.

The adjournment was requested to allow the plaintiff to compel answers to undertakings and refusals from an affiant whose affidavit supported the motion to vary.

The court granted the adjournment, applying established principles for judicial discretion in granting adjournments, emphasizing the overall objective of a just determination on the merits and the need for the plaintiff to adequately prepare its opposition.

The defendants, Garry Shapiro and Kaveh Najafi, brought motions to dismiss the plaintiff's claim.

Shapiro sought to set aside a noting of default and dismiss the action as an abuse of process and statute-barred under the Limitations Act, 2002, based on a prior dismissed action from 2011.

Najafi sought to strike the statement of claim, arguing it was statute-barred.

The court found that the 2015 action was not an abuse of process as the prior action was not decided on its merits.

Regarding the limitation period, the court applied Section 11 of the Limitations Act, 2002, finding that the family law proceedings between the plaintiff and Najafi, which resulted in a Family Order in 2014, suspended the limitation period.

The Family Order also created new rights and obligations, giving rise to fresh causes of action.

The court also noted the potential applicability of the Real Property Limitations Act, which provides a ten-year limitation period.

Consequently, the defendants failed to establish that the 2015 action was statute-barred.

The motions to dismiss were largely dismissed, with the exception of setting aside the noting in default against Shapiro by consent.

The applicant father brought a motion to change a final order for child support and section 7 expenses for his adult child, Roxanne, citing a material decline in his income and insufficient proof of Roxanne's continuous full-time post-secondary enrollment for a specific academic year.

The court found a material change in the father's income, reducing his ongoing child support and section 7 contributions.

Furthermore, the respondent mother was ordered to reimburse the father for section 7 expenses paid during a period when Roxanne's full-time enrollment was not proven, based on unjust enrichment, though no set-off against future support was permitted.

This endorsement addresses costs for several prior motions.

The plaintiffs (Nicholson Group) were awarded costs for a successful motion for leave to amend their statement of claim.

The Janza group and Horbatiuk defendants were awarded costs for their successful motions regarding abandoned motions and contempt proceedings.

Andrey Pinsky was awarded costs against the plaintiffs for successfully opposing an indemnity motion brought by Mr. Nicholson.

The court applied principles under the Courts of Justice Act and Rule 57.01(1), declining substantial indemnity where no egregious conduct was found.

The parties sought costs following an acrimonious 10-day trial.

The court determined that neither party's offers to settle met the requirements for elevated costs under Family Law Rule 18(11).

Cheryl Ogg was found to be the more successful party overall, entitling her to costs on a partial indemnity basis.

However, John Ogg achieved divided success on the property equalization issues, which took up a substantial portion of the trial.

Consequently, Cheryl's claimed trial costs were reduced by 50% to reflect this divided success.

The court awarded Cheryl Ogg partial indemnity costs totaling $95,551.73 plus HST.

The defendants moved to dismiss the plaintiff's construction lien actions or, alternatively, to stay them, arguing the liens had expired due to the plaintiff's corporate dissolution and the actions being struck from or not added to the trial list.

The court found that the liens had not expired because the actions were properly 'set down for trial' as per the Construction Lien Act, distinguishing this from being placed on a trial list.

However, the court granted the alternative relief, staying the actions until the plaintiff corporation was revived or obtained leave to proceed under the Corporations Information Act, as it lacked standing due to dissolution.

Following a trial where the defendant was found liable for assaulting the plaintiff, the court determined costs and a request for a declaration under the Bankruptcy and Insolvency Act.

The court awarded substantial indemnity costs to the plaintiffs pursuant to s. 4(6) of the Victims' Bill of Rights, 1995, finding no reason it would not be in the interests of justice.

The court also granted a declaration that the damages and costs awarded to the assaulted plaintiff survive any future bankruptcy discharge, as the assault constituted bodily harm intentionally inflicted.