Michael G. Emery

The plaintiff sought leave to enforce a consent judgment obtained following a settlement agreement arising from a large employee fraud.

The moving party argued that the defendant had materially breached the settlement agreement by failing to disclose assets, gifts, and financial transactions and by failing to account for significant proceeds obtained from resale of goods purchased through the fraud.

The court held that the consent judgment was contractually linked to the settlement agreement and therefore subject to conditions restricting enforcement against the defendant’s residence unless a material breach occurred.

The court found multiple material breaches, including undisclosed loans, gifts, assets, and evasive disclosure regarding hundreds of thousands of dollars in proceeds.

The breaches removed the contractual protection against execution.

Leave was granted nunc pro tunc for issuance of a writ of seizure and sale.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' negligence action.

The plaintiffs, who were shareholders of a corporation, alleged that the defendants negligently terminated a contract with the corporation, causing the plaintiffs personal financial losses, including the loss of a U.S. work permit and a real estate deposit.

The court granted the motion and dismissed the action, finding that the claims were precluded by the rule in Foss v. Harbottle, as shareholders cannot sue for wrongs done to the corporation.

Furthermore, the court held that the defendants owed no duty of care to the plaintiffs due to a lack of proximity and foreseeability, and the claims for pure economic loss did not fall within recognized legal categories.

The plaintiffs, who operated mobile sign leasing businesses, sued the City of Mississauga for $7.5 million in damages for negligent enforcement of a 2002 sign bylaw.

They argued their signs were 'grandfathered' and exempt from the new bylaw because the previous bylaw had expired, leaving a period of no regulation.

The court found that while the signs were lawfully erected and grandfathered, the City did not owe a private law duty of care to the plaintiffs.

The City's actions in publicizing and implementing the bylaw were protected policy decisions, and finding a duty of care would expose the City to indeterminate liability.

The action was dismissed.

The plaintiffs and the defendant OLG brought cross-motions regarding discovery in an action for damages arising from the cancellation of the Slots at Racetrack Program.

The plaintiffs sought an order compelling OLG to produce relevant emails sent or received by current and former OLG employees on personal, non-OLG email accounts, and to produce OLG's email use and document retention policies.

OLG sought leave to conduct an advance form of discovery by written questions prior to oral examinations.

The court adjourned both motions, ordering OLG to produce its IT and document retention policies for the court's review, and granting the parties leave to file further affidavit evidence regarding OLG's request for written particulars.

The defendant successfully opposed the plaintiff's motion for summary judgment, resulting in the dismissal of the plaintiff's claim on a loan agreement due to the expiry of the limitation period.

The defendant sought partial indemnity costs.

The plaintiff argued costs should be denied or set off against the unpaid debt because the defendant received a windfall.

The court rejected the plaintiff's arguments, noting the plaintiff had two years to bring the action and failed to do so.

The court awarded the defendant costs fixed at $15,164.

The applicant sought recognition of a 50 percent ownership interest in residential property, rectification of title, and partition and sale after a later registered transfer reduced her interest to 5 percent.

The court found that the respondent had made a bona fide gift of a one-half interest to the applicant in 2013 within the context of an intimate relationship, and that the subsequent transfer was executed without the applicant's knowledge or consent.

Treating the impugned transfer instrument as fraudulent and void under the Land Titles Act, the court ordered rectification of the register.

The court further held that the respondent had shown no basis to resist partition and sale under the Partition Act and ordered the property listed for sale with equal division of net proceeds.

In a personal injury action arising from an assault, the defendant moved to exclude two plaintiff medical reports proposed to be tendered under s. 52 of the Evidence Act at a contested damages trial.

The court held that both proposed experts were litigation experts within the meaning of Westerhof and that their reports complied with Rule 53.03(2.1) and Rule 4.1.01(1).

However, the court refused leave under s. 52(2) of the Evidence Act to file those reports in lieu of viva voce testimony, holding that litigation experts must attend trial so the judge can perform the gatekeeper function on qualification and scope of opinion evidence.

The motion was therefore granted, with costs in the cause.

The applicant municipality brought a motion to find the respondent corporation in contempt for demolishing a building without a permit, contrary to a prior court order.

The court found the respondent in contempt, noting the sole director's wilful blindness regarding a previously revoked permit.

The court also authorized the municipality to recover $28,381.18 in remediation expenses under the Building Code Act, granting the amount priority lien status.

Substantial indemnity costs for the contempt motion were awarded against the corporation and its director jointly and severally.

The applicant father and respondent mother disputed custody and access of their six-year-old son following their separation.

The father sought joint custody and maximum access, while the mother sought sole custody.

The court found that the parents lacked the ability to communicate effectively, making joint custody contrary to the child's best interests.

Sole custody was awarded to the mother.

The court ordered a generous access schedule tailored to the father's rotating shift work.

The father was also ordered to pay ongoing child support, retroactive child support, and a fixed monthly amount for section 7 extracurricular expenses.

The plaintiff purchaser sued the defendant vendors for specific performance or damages after a real estate transaction failed to close.

The transaction aborted because a third party, a previous prospective purchaser, registered a certificate of pending litigation against the property days before closing.

The defendants brought a motion for summary judgment to dismiss the action, relying on the annulment clause in the agreement of purchase and sale.

The court granted the motion, finding the defendants acted reasonably and in good faith, and were unable to remove the certificate of pending litigation by the closing date, meaning the agreement came to an end by its own terms.

The applicant father brought a motion to permit questioning of the respondent mother in a family law proceeding involving custody of their child.

The mother brought a cross-motion for interim custody and other relief.

The court reviewed the divergent case law on whether questioning should be permitted under Family Law Rule 20(5).

Finding that questioning is a valuable tool to test contradictory affidavit evidence and narrow issues, the court granted the motion, allowing each party to question the other for up to two hours, subject to specific subject matter limitations.

The court also granted parts of the mother's cross-motion on consent, including orders for child care expenses and financial disclosure, and adjourned the balance of her motion.

In a franchise disclosure action, the plaintiffs moved to enforce an agreed timetable for a pending summary judgment motion, while the defendants cross-moved for production of an affidavit of documents before being required to respond.

The court held that, following the 2010 amendments to the Rules of Civil Procedure, there was no automatic entitlement to an affidavit of documents after the close of pleadings and no right to compel one in the absence of a discovery plan.

Applying the modern summary judgment approach endorsed in Hryniak, the court found that responding parties retained adequate procedural tools to obtain relevant evidence without defaulting to conventional documentary discovery.

The plaintiffs' motion to enforce the timetable was granted with revised dates, and the defendants' cross-motion was dismissed.

This was a costs endorsement following the dismissal of cross-motions, the striking of an amended statement of claim without leave to amend, and dismissal of the action.

The court held that the successful moving defendants were entitled to costs and that separate costs could be claimed for counsel representing the trustee services interests because that representation was distinct and necessary.

Applying the normal rule that costs follow the event, and considering the factors under s. 131 of the Courts of Justice Act and Rule 57.01, the court rejected the unsuccessful plaintiffs' claim for their own costs.

Although the defendants sought substantially more, the court exercised restraint and fixed partial indemnity costs at $20,000, with differentiated payment responsibility between all plaintiffs and one plaintiff individually.

In a family law contempt motion arising from alleged non-compliance with access and reunification orders, the father sought a finding of contempt against the mother for frustrating access to a teenage child and failing to support therapeutic reunification.

Applying the strict three-part contempt test, the court held that the original access provision in the 2009 order was not sufficiently clear and unequivocal to ground a contempt finding.

The balance of the contempt allegations under later orders was not determined on the written record because the factual controversy required viva voce evidence, including evidence from the child and other witnesses.

The motion was therefore dismissed in part and otherwise adjourned, with costs reserved.

Following the dismissal of an appeal from the Small Claims Court regarding a claim for $4,931.92 in unpaid rehabilitation fees, the successful respondent sought costs on a substantial indemnity basis.

The court rejected the request for substantial indemnity costs, finding that a letter asking the appellant to abandon the appeal on humanitarian grounds did not constitute an offer to settle.

Applying the principle of proportionality under Rule 1.04(1.1) of the Rules of Civil Procedure, the court fixed the respondent's partial indemnity costs at $5,000 all-inclusive, an amount roughly equal to the original claim.

The plaintiffs, standardbred horse breeders and related entities, moved for an imposed discovery plan and broad documentary production in a $60 million action arising from the termination of the Slots at Racetracks Program.

The court held that the defendants had not filed cogent evidence under Rule 29.2.03 to justify restricting otherwise relevant productions on proportionality grounds.

The court ordered both defendants to run the plaintiffs’ proposed search terms for affidavit-of-documents purposes, but limited most searches to January 1, 2009 through December 31, 2012, while extending searches involving SARP or HIP terminology back to January 1, 1998.

Ontario’s motion to file further affidavit material was dismissed, and the plaintiffs’ request for custodian details was dismissed without prejudice.

This costs endorsement followed an unsuccessful third-party summary judgment motion seeking dismissal of a third party claim arising from a motor vehicle accident.

The court held that, in the post-Hryniak environment, substantial indemnity costs under Rule 20.06 may be awarded where a party acts unreasonably in bringing or responding to a summary judgment motion, without requiring egregious or reprehensible conduct.

The motion was found unreasonable because its legal basis was misplaced and the evidentiary record disclosed conflicting evidence requiring a trial.

The successful responding defendants were awarded substantial indemnity costs of $6,497.50 inclusive of HST.

An elector brought an application under the Municipal Conflict of Interest Act alleging that a municipal councillor failed to declare a pecuniary interest when voting on resolutions increasing municipal employee wages, which affected her spouse’s salary as fire chief.

The court held that the councillor had an indirect pecuniary interest through her spouse and breached s. 5(1) of the Act by participating in the votes.

The statutory exception for members of a volunteer fire brigade did not apply because the councillor herself was not a member of the brigade.

The court rejected the defence of inadvertence and found that the councillor had not exercised due diligence in identifying the conflict.

A penalty was imposed disqualifying the councillor from serving on council for six years.

Following a successful commercial application for the return of a deposit, the applicant sought costs on a substantial indemnity basis relying on a pre‑litigation letter requesting the return of the deposit.

The respondents opposed costs, arguing the case was uncertain, settlement options had been offered, and the application procedure was unusual.

The court held that the applicant was entirely successful and that the June 30, 2014 letter constituted a valid offer to settle within the meaning of Rule 49 of the Rules of Civil Procedure.

Because the judgment obtained was more favourable than the offer, the cost consequences of Rule 49.10 applied.

Substantial indemnity costs were awarded but reduced from the amount claimed to reflect that Rule 49 provides substantial indemnity, not full recovery.

The moving defendants sought to strike the amended statement of claim under Rules 21.01 and 25.06 of the Rules of Civil Procedure.

The plaintiffs alleged numerous causes of action arising from disciplinary proceedings and a trusteeship order involving the professional practice of a lawyer and sought extensive damages against the regulator, its employees, and media defendants.

The court held the pleading was rambling, vexatious, and failed to disclose reasonable causes of action.

Claims including defamation, malicious prosecution, and derivative Family Law Act damages were inadequately pleaded or legally barred.

The court further found the claims constituted an impermissible collateral attack on prior disciplinary and court decisions and were barred by statutory immunity under the Law Society Act.