Michael G. Emery

The appellant appealed a trial judgment dismissing his battery claim and awarding the respondent $50,000 on a defamation counterclaim.

The Divisional Court determined it lacked jurisdiction to hear the appeal under section 19(1.2) of the Courts of Justice Act because the original claim exceeded $50,000 and the jury did not indicate what damages would have been awarded had the claim succeeded.

Applying the Dunnington factors, the court exercised its discretion under section 110(1) of the Courts of Justice Act to transfer the appeal to the Court of Appeal rather than dismiss it for want of jurisdiction.

The applicant mother brought a motion for an interim order granting her sole decision-making responsibility and primary residence of the parties' four-year-old child, along with a modified parenting schedule for the respondent father.

The mother argued the current schedule caused the child anxiety, while the father sought a 2-2-3 shared parenting schedule.

The court granted the mother interim sole decision-making responsibility and primary residence, finding it in the child's best interests.

The court rejected the father's 2-2-3 proposal due to uncertainty but modified his parenting time to shorter, more frequent visits to reduce the child's anxiety while maintaining regular contact.

The applicant daughter sought to be appointed as guardian of property and personal care for her mother, the respondent.

The respondent opposed the application but filed no responding evidence.

The court found the respondent incapable of managing her property and personal care due to declining mental health, delusions, and inability to manage finances or medical needs.

The court declined to order a capacity assessment, finding it would be overly intrusive given the respondent's likely refusal to cooperate.

The application was granted, and the daughter was appointed guardian subject to posting a $125,000 bond.

The applicant brought a motion for a Certificate of Pending Litigation (CPL), a preservation order, and expanded financial disclosure in a family law proceeding following a long marriage.

The applicant alleged the respondent unilaterally sold a jointly acquired rental property and transferred funds to purchase a new property in his sole name, while failing to provide adequate financial disclosure.

The court granted the CPL, finding a reasonable claim for a constructive trust, and issued a preservation order under sections 12 and 40 of the Family Law Act to prevent the dissipation of assets.

The court also ordered the respondent to provide detailed financial disclosure, noting his previous non-compliance had frustrated the progress of the case.

The defendants, Dr. Yasser Khan, Dr. Yasser A. Khan Medicine Professional Corporation, and Carrot Eye Surgery Clinic, brought motions to set aside a noting in default entered by the self-represented plaintiffs, Larry Westcott and Sharon Lea Westcott.

The court applied the test for setting aside a noting in default, considering the behavior of both parties, the length and reasons for delay, the complexity and value of the claim, and the absence of prejudice to the plaintiffs.

The court found that the defendants acted promptly upon discovering the default, intended to defend the action, and that the plaintiffs' conduct (noting default without prior notice, then demanding excessive costs for consent) was not ideal.

Given the complexity of the medical negligence claim and the significant damages sought, the court emphasized the preference for resolving disputes on their merits.

The motions were granted, setting aside the noting in default, with no costs awarded to any party.

The applicant brought two motions following the respondent's failure to comply with a consent order.

The first motion sought costs for an urgent motion required to compel the respondent to transfer a vehicle, which he did on the eve of the hearing.

The court found the respondent acted in bad faith and awarded full recovery costs of $4,500.

The second motion sought to strike the respondent's pleadings for failing to provide ordered financial disclosure.

The court declined to strike the pleadings as a remedy of last resort, instead setting a final deadline for compliance and awarding $3,000 in partial indemnity costs to the applicant.

The applicant wife sought interim spousal support on an urgent basis due to economic hardship.

The respondent husband contested entitlement and quantum.

The court found the applicant was entitled to both compensatory and non-compensatory support, noting she relocated for the marriage and became financially dependent.

Applying exceptions to the Spousal Support Advisory Guidelines (SSAGs) due to compelling financial circumstances and the short duration of the marriage, the court ordered the respondent to pay $2,200 per month in interim spousal support for 12 months, effective January 1, 2021.

The plaintiffs sought leave to amend their statement of claim to significantly increase the damages claimed (from $60 million to $662 million) and to elaborate on the theoretical basis for these damages, including through the application of unjust enrichment.

This motion followed a prior summary judgment that established Ontario's liability for breach of contract, with damages to be assessed.

The defendant, Ontario, opposed the amendments, arguing they were barred by res judicata (issue and cause of action estoppel), abuse of process, and constituted a collateral attack, particularly concerning the unjust enrichment claim which was subject to a pending appeal.

The court granted leave for most amendments, finding no non-compensable prejudice.

It clarified that while the unjust enrichment claim as a cause of action was under appeal and could not be bolstered, the amendments could be used to plead theories of damages for the existing contract claim.

The applicant, Hudson's Bay Company, sought judicial review of a regulation that required its department stores to close during the COVID-19 pandemic while allowing big box stores that sell groceries to remain open.

The applicant argued the distinction was irrational and ultra vires the enabling statute.

The Divisional Court dismissed the application, finding that the regulation was authorized by the Reopening Ontario Act and consistent with its purpose of balancing public health measures with economic concerns.

The court held that it is not the role of the judiciary to assess the wisdom or efficacy of the government's policy choices.

The plaintiffs brought a motion for the production of a Cooperation and Common Interest Agreement between the defendants.

The plaintiffs sought the agreement to support their argument that the defendants mounted a joint defence, which would affect the apportionment of costs following summary judgment motions.

After reviewing the agreement in camera, the court dismissed the motion, finding that the document was protected by privilege.

The appellant registered a claim for lien against the respondents' property.

The motion judge discharged the lien under s. 47 of the Construction Lien Act, finding it was registered out of time because the contract work was completed and fully invoiced 11 months prior.

On appeal, the appellant argued the motion judge erred in relying on the invoice and applying the wrong standard.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual conclusions and holding that the correct underlying test was applied.

The plaintiffs, standardbred horse breeders, sued Ontario and the Ontario Lottery and Gaming Corporation (OLG) for breach of contract, negligence, and negligent misrepresentation following the cancellation of the Slots at Racetrack Program (SARP).

The defendants moved for summary judgment to dismiss the action, and the plaintiffs cross-moved for summary judgment on liability.

The court held that the Crown Liability and Proceedings Act (CLPA) retroactively extinguished the plaintiffs' tort claims because the cancellation of SARP was a policy decision made in good faith.

However, the court found that the 1998 Letter of Intent establishing SARP was a binding contract.

Applying the principled exception to the doctrine of privity, the court held that the plaintiffs had standing to enforce the contract.

The court granted summary judgment to the plaintiffs against Ontario for breach of contract, finding that Ontario breached an implied term to provide reasonable notice of termination.

The action against OLG was dismissed.

Antonio, an estate trustee and beneficiary, sought to extend timelines to exercise an option to purchase an estate property, citing COVID-19 related impediments.

The co-estate trustees (applicants) opposed and brought a cross-motion to proceed with the sale of the property and for Antonio to pay occupation rent.

The court dismissed Antonio's motion, finding insufficient evidence that COVID-19 genuinely prevented him from complying with the prior consent order.

The court granted the applicants' request to list and sell the house without Antonio's involvement due to his conflict of interest and ordered Antonio to pay occupation rent of $2,000 per month to the estate.

The applicants' request for further disclosure orders against Antonio was dismissed, as some disclosure had been made, and any deficiencies would require a separate motion.

The father applied under the Hague Convention for the immediate return of his three children from Canada to Israel, alleging wrongful removal by the mother.

The mother opposed the application, asserting that returning to Israel would expose her and the children to a grave risk of physical and psychological harm, and would place them in an intolerable situation, thereby invoking exceptions under Article 13(b) and Article 20 of the Hague Convention.

The court found a history of domestic abuse by the father against the mother, suspicious circumstances surrounding a grenade attack at the grandparents' home, and the father's use of intimidation.

The court also considered the mother and children's status as Convention Refugees in Canada, which created a rebuttable presumption of persecution risk if returned.

The court concluded that the mother had discharged her burden to prove the exceptions applied, and therefore dismissed the father's application for the children's return to Israel.

The plaintiff, Ghulam Mujtaba, claimed the defendants, Mohammad Yasin and Fehra Yasin, borrowed $50,733.47 from him in 2011, which they promised to repay upon selling their home.

The defendants argued the funds were not a loan but payments towards amounts Mujtaba owed them under a separate agreement for housing and supervising his sister-in-law, Nazma, who was on bail.

The court found that Mujtaba proved the funds were a loan, separate from the agreement for Nazma's care, and that the defendants' evidence regarding their contribution to the funds and their set-off defence was not credible or properly pleaded.

Judgment was granted in favour of the plaintiff for the full amount plus pre-judgment interest.

The plaintiff law firm brought a motion seeking an order to hold back $7,000 from the proceeds of the sale of the defendant's house to secure a potential judgment for unpaid legal fees.

The court dismissed the motion, finding no statutory authority to order execution before judgment in these circumstances.

Furthermore, the court held that even if the motion were treated as a request for a Mareva injunction, the plaintiff failed to establish a strong prima facie case or provide evidence that the defendant intended to dissipate assets.

The plaintiffs, Steven and Carolyn Nadeau, brought an action for damages after Steven Nadeau was injured by an automatic garage door.

They sued the building owner (Ontario), property manager (CBRE), door installer (Wilcox), garage manager (SP Plus), and maintenance contractor (Haws).

Wilcox, SP Plus, and Haws each brought motions for summary judgment to dismiss the action against them.

The court granted Wilcox's motion, finding no duty of care owed to the plaintiffs and no basis for cross-claims, deeming it a rare case suitable for partial summary judgment.

The motions brought by SP Plus and Haws were dismissed, as genuine issues requiring a trial remained regarding their respective duties of care and, for SP Plus, ambiguities in contractual indemnification clauses.

This corrigendum addresses mathematical corrections and clarifies child support issues arising from a prior trial judgment (2019 ONSC 5260) in a family law matter.

The court corrected date of marriage property values, adjusted equalization payments, and clarified retroactive spousal support calculations.

Crucially, it determined ongoing and retroactive child support, finding that the respondent had provided effective and formal notice of her claim in her answer.

The court applied the D.B.S. factors, concluding that the applicant's conduct, including misrepresenting income and benefiting from non-payment, justified a retroactive child support order, effective July 1, 2014.

The responding party alleged that members of her former spouse's family and related corporations conspired to deprive her of interests in a U.S. luggage business and a related opportunity to participate in refinancing or rescuing the business.

The moving defendants sought summary judgment dismissing the conspiracy claim, arguing the impugned transactions were undertaken for legitimate business reasons in response to severe financial distress and secured creditor enforcement risk.

The court reviewed the tests for predominant-purpose and unlawful-conduct conspiracy, as well as the loss of chance doctrine, and concluded that while parts of the record undermined the claim, there remained genuine issues of fact regarding the terms, purpose, and implementation of an agreement among family members and whether the plaintiff lost a real business opportunity.

Summary judgment was therefore refused and the action was left for trial, with the judge remaining seized and inviting submissions under Rule 20.05.

This endorsement addresses costs for two motions heard on October 22, 2019.

The Regional Municipality of Peel and Bi-Views Building Service Ltd. sought costs, while the plaintiff Aparna Sanwalka also claimed costs.

The court found Peel and Bi-View to be the more successful parties, particularly regarding the dismissal of Ms. Sanwalka's motion for examination for discovery accommodations and the necessity of Peel's motion to advance the action.

Costs were awarded on a partial indemnity basis to Peel ($2,500) and Bi-View ($750), payable by Aparna Sanwalka.