Michael G. Emery

The moving parties brought a motion for leave to appeal an unreported decision of Parghi J. dated July 5, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $2,500 to the responding party.

The accused, charged with multiple firearms and stolen vehicle offences, sought a bail review under s. 520 and s. 525 of the Criminal Code after being detained on the tertiary ground.

The accused proposed a new release plan involving his father, a correctional officer residing in New Brunswick, as a surety.

The court found that the new release plan constituted a material change in circumstances and that the Crown had not shown that continued detention was necessary to maintain public confidence in the administration of justice.

The accused was granted interim judicial release on strict conditions, including house arrest and significant financial pledges from sureties.

The applicant, Mississauga Fire Fighters Association (MFFA), sought leave to discontinue its defamation action against the respondent, Dr. Martin McNamara, to pre-empt an anti-SLAPP motion and avoid costs.

McNamara opposed, seeking to proceed with his anti-SLAPP motion for vindication and full indemnity costs.

The court granted MFFA leave to discontinue, finding no prejudice to McNamara that could not be neutralized by costs, and that the remaining defamatory posts did not constitute a bona fide cause of action.

The court awarded McNamara partial indemnity costs, setting off costs awarded to MFFA from a prior case conference.

Branko Skrak brought a motion for a stay of a spousal support order granted in a prior judgment, pending appeal.

The motion was brought under Rule 63.02(1)(a) of the Rules of Civil Procedure, arguing serious issues with the spousal support and equalization orders, irreparable harm due to inability to pay and non-recoverability, and balance of convenience.

The court applied the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General).

The motion was dismissed, primarily because Mr. Skrak failed to demonstrate irreparable harm, as he provided no financial evidence of distress and offered to pay the retroactive support into court.

The court also noted the deference due to the trial judge's findings of fact regarding spousal support entitlement and quantum.

The respondent father brought a motion seeking an order for the Peel Children’s Aid Society to produce its file on the family and for expanded parenting time, including overnight visits, with his 4-year-old child.

The applicant mother consented to the CAS file production but opposed the expanded parenting time, citing an ongoing Office of the Children's Lawyer (OCL) investigation and allegations of family violence.

The court granted the order for the CAS file but dismissed the motion for expanded parenting time as premature, emphasizing the need to await the OCL report and considering the child's age and the family violence allegations.

The appellant slipped and fell on black ice while holding her key fob and reaching to unlock her car door.

She applied for accident benefits, which the insurer initially paid but later disputed by raising a preliminary issue that the incident was not an 'accident' under s. 3(1) of the SABS.

The Licence Appeal Tribunal found the incident was not an accident.

On appeal, the Divisional Court held that the LAT did not err in allowing the preliminary issue to be raised late, but erred in law in its causation analysis.

The court found the appellant was engaged in the ordinary use of her vehicle and the ice was not an intervening cause, concluding the incident met the definition of an accident.

The estate trustee appealed a costs order that denied her indemnification for legal expenses incurred while representing the estate in a dependent's relief application.

The Divisional Court allowed the appeal, finding the application judge erred in principle and failed to provide adequate reasons for denying costs.

Applying the framework for blended costs in estate litigation, the court awarded the estate trustee full recovery of her costs on a substantial indemnity basis, with the majority payable by the respondent whose egregious conduct unnecessarily increased the litigation costs, and the balance payable by the estate.

The defendant, The Bank of Nova Scotia (BNS), brought a motion to dismiss or stay the plaintiff's action, or for summary judgment, on the grounds that the plaintiff, Samir Ibrahim, was a vexatious litigant subject to a court order requiring leave to institute or continue proceedings, which he had not obtained.

BNS also argued that the action had no basis in fact or law.

The plaintiff's claim alleged that BNS failed to inform him about a mortgage protection insurance policy on his deceased mother's property, leading to its "seizure" and sale.

The court found that the plaintiff had indeed commenced the action without the required leave and that there was no evidence to support his claims regarding BNS's involvement in the property's sale or the existence of a mortgage protection insurance policy.

The court concluded that the action was frivolous and vexatious and dismissed it.

Techlantic Ltd. brought a motion for summary judgment against Jiyue "Jay" Zhao to enforce a personal guarantee of $240,000 for obligations of Modellista Auto Accessories Inc. The motion also sought to amend the statement of claim to substitute new plaintiffs.

The court granted leave to amend the statement of claim but dismissed the motion for summary judgment, finding genuine issues requiring a trial regarding the unconscionability of the guarantee.

Specifically, there were credibility issues and inconsistencies in evidence regarding the parties' business arrangement, Mr. Zhao's bargaining position, and the improvidence of the guarantee, necessitating a full trial.

Following the dismissal of the appellant's appeal from final orders of the Family Court, the parties made written submissions on costs.

The respondent sought $4,000 in costs as the successful party.

The appellant also sought $4,000, arguing the respondent's counsel acted unreasonably by making paragraph numbering errors.

The Divisional Court rejected the appellant's argument, finding the cited conduct did not justify depriving the successful party of costs.

The court awarded the respondent costs on a partial indemnity basis, fixed at $3,000 to account for the appellant's limited financial circumstances.

The plaintiff tenant, ASCO Manufacturing Limited, sought a declaration of a valid lease extension for commercial premises.

The defendant landlords, P. Judge Investments Inc. and Malloch Investments LLC (Advance), asserted the lease expired on September 30, 2021, and counterclaimed for overholding rent.

Advance brought a motion for summary judgment to dismiss ASCO's action and for judgment on its counterclaim.

The court found that the 2017 lease expired as per its terms on September 30, 2021, and ASCO became an overholding tenant.

The court dismissed ASCO's action, granted summary judgment to Advance for rental payments (damages to be assessed), vacated an interlocutory injunction, and ordered ASCO to surrender possession by February 28, 2024.

A claim for contribution and indemnity by Advance was dismissed without prejudice.

The appellant father appealed a summary judgment order granting the respondent mother sole decision-making responsibility and primary residence of their 16-year-old child, with parenting time at the child's discretion.

The motion judge had found the father engaged in family violence and harassing behaviour, while dismissing his claims of parental alienation.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings or application of the best interests of the child test under the Children's Law Reform Act.

The appellants, two school boards and several employees, appealed a motion judge's refusal to strike the respondent's statement of claim.

The respondent, a mother involved in a bitter custody dispute, sued the school boards for misfeasance of public office, intentional infliction of mental suffering, and breach of her section 7 Charter rights, alleging they failed to provide records, notify her of incidents, and impeded access to her son.

The Divisional Court allowed the appeal, finding it plain and obvious that the claims disclosed no reasonable cause of action.

The court held that school employees do not owe a duty of care to parents that conflicts with their duties to students, and the conduct alleged did not meet the high thresholds for the intentional torts or Charter breaches pleaded.

The plaintiff brought a motion for default judgment after the defendant failed to close an agreement of purchase and sale for a residential property.

The defendant had agreed to purchase the property for $3,660,000 and paid a $100,000 deposit, but breached the agreement.

The plaintiff subsequently sold the property for $3,200,000 and sought damages for the difference in sale price and carrying costs.

The court granted default judgment, ordering the forfeiture of the deposit to be applied against the plaintiff's total damages, resulting in a net damages award of $405,346.47 plus costs.

The appellant, a non-profit corporation providing affordable housing, appealed a decision dismissing its application for a municipal tax exemption under s. 3(1)12(iii) of the Assessment Act.

The application judge found that the appellant was not 'organized for the relief of the poor' because it did not engage in 'some form of endeavour' to provide relief, relying on the Court of Appeal's decision in Religious Hospitallers.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's factual findings or application of binding precedent, though a concurring opinion suggested the Religious Hospitallers decision should be revisited.

This decision addresses the issue of costs following a prior judgment where the applicant, We Care Funding Limited Partnership (WCF), was granted the right to pay out the respondent, 1569635 Ontario Limited (156), for its 50% interest in a second mortgage.

Both parties sought costs.

The court found 156 to be the more successful party, having resisted WCF's initial incorrect capacity claim and ultimately recovering a greater amount than WCF had offered.

While 156 sought substantial indemnity costs based on contractual terms, the court denied this, finding the legal fees were incurred to resist the payout, not to enforce security as contemplated by the mortgage terms.

The court awarded 156 costs on a partial indemnity scale, fixed at $45,000 all inclusive.

The applicants sought judicial review of the City's decision to reject an advertisement for transit vehicles.

The City conceded that it failed to provide adequate reasons balancing the applicants' right to freedom of expression against its statutory objectives, as required by the Doré/Loyola framework.

The Divisional Court granted the application, quashed the decision, and remitted the matter back to the City for proper consideration and to provide adequate reasons.

The mother brought a motion for an interim order permitting her to relocate to London, England with the parties' two-year-old child to accept a lucrative job offer and be closer to her family support network.

The father brought a cross-motion for a graduated parenting plan in Ontario.

The court granted the mother's motion to relocate, finding that she was the primary caregiver and that the father failed to meet the burden of proving the relocation was not in the child's best interests.

The court also addressed several evidentiary objections, striking surreptitious recordings and certain reply evidence, while allowing the evidence of a treating doctor as a participant expert.

The father's cross-motion was dismissed, and he was ordered to pay costs of $23,640.

The Estate Trustee During Litigation (ETDL) for the Estate of Marek Janusz Krol brought a motion to vary a prior order to permit the sale of the Cawthra property, citing financial inability to maintain the mortgage.

The Hermistons, who claim beneficial ownership of the property, opposed the motion and proposed alternative financing.

The court dismissed the ETDL's motion, finding insufficient new facts to vary the order, but ordered Joel Hermiston to pay all carrying costs of the property, allowing the ETDL to bring a new motion if costs are not met or refinancing fails.

The applicant brought a motion seeking two orders: to prevent the respondent from further drawing funds from a Royal Bank of Canada line of credit registered against the matrimonial home, and for leave to issue a Certificate of Pending Litigation (CPL) against an investment property (the "Toronto condo").

Both properties were solely in the respondent's name.

The court addressed a preliminary objection regarding the scope of the motion, allowing the CPL request due to urgency.

The court granted both orders, finding that the respondent's significant drawdowns on the line of credit threatened the applicant's potential equalization and trust claims, necessitating a preservation order under s. 12 of the Family Law Act.

For the CPL, the court found the applicant had a reasonable claim to an equitable interest in the Toronto condo, which the respondent had listed for sale, and the respondent failed to demonstrate there was no triable issue.