Michael G. Emery

The plaintiffs sued the defendants for damages arising from mould in their residential unit.

During the litigation, both sides brought procedural motions.

The defendants sought further disclosure and to schedule continued examinations for discovery, which was largely resolved on consent.

The plaintiff, Aparna Sanwalka, sought accommodations for her continued examination for discovery due to alleged mental health conditions, including receiving questions 48 hours in advance.

The court dismissed the plaintiff's motion for accommodations, finding insufficient medical evidence to justify departing from the standard oral examination format under Rule 31.02.

The parties separated after an eight-year marriage and disputed custody, access, child support, and equalization.

The mother sought sole custody of their six-year-old child, while the father sought joint or sole custody with expanded access.

The court awarded sole custody to the mother, finding the parents unable to communicate effectively and the mother better positioned to provide stability.

The court imputed an income of $50,000 to the father, finding him intentionally underemployed after he quit his banking job to pursue politics.

The court also granted the mother an unequal division of net family property due to the father's reckless depletion of a jointly owned property in Jamaica.

The applicant and respondent engaged in a focused hearing to determine three pivotal issues: the date of separation, the income of both parties, and whether the respondent financially supported the applicant.

The parties had a tumultuous, long-distance marriage spanning 17 years, with conflicting evidence regarding their separation date.

The court preferred the applicant's evidence, finding the date of separation to be May 31, 2015.

The court imputed an annual income of $56,000 to the respondent due to intentional underemployment and $28,000 to the applicant based on minimum wage earning capacity.

Finally, the court determined the respondent provided $98,594 in financial support to the applicant between 2004 and 2017.

The applicant husband commenced a family law case solely to obtain a divorce, but subsequently failed to participate or provide financial disclosure.

The respondent wife proceeded to an uncontested trial seeking corollary relief including equalization, post-separation expenses, and spousal support.

The court imputed an annual income of $90,000 to the husband based on past earnings and ordered him to pay equalization and post-separation expenses.

Due to a real risk of non-payment, the court awarded lump sum spousal support of $201,330.

To enforce the judgment, the court granted a vesting order transferring the husband's interest in the matrimonial home to the wife.

The tenant's appeal from an order of the Landlord and Tenant Board terminating her tenancy was previously dismissed.

The court received written submissions on costs from the respondent landlord, but none from the appellant tenant.

The court fixed costs payable to the respondent in the amount of $4,000 all-inclusive.

The plaintiff landlord brought a motion for summary judgment against the defendant tenant and indemnifiers for damages arising from the breach of a commercial lease.

The tenant never took possession of the unit or paid rent.

The landlord terminated the tenancy and re-let the premises at a lower rate, claiming the shortfall.

The court granted summary judgment on liability and awarded damages for arrears up to the date of termination.

However, the court ordered a trial to determine the net present value of the landlord's claim for future rent losses.

The applicant husband and respondent wife separated after a nearly seven-year marriage.

The trial focused on spousal support and the equalization of net family property.

The court imputed a higher income to the husband, finding he intentionally underemployed himself and diverted business to a new company run by his parents.

The wife was awarded retroactive and ongoing spousal support on compensatory and need-based grounds.

For equalization, the court valued the husband's business using an income-based approach, discounted his claimed interfamily loans by 90%, and dismissed his claim that the wife absconded with $100,000 in jewelry.

The husband was ordered to pay an equalization payment of $95,967.85.

The applicant, a successor in title to a property, brought an application to determine the amount owing under a Writ of Seizure and Sale filed against the property by the respondent for her former spouse's spousal support arrears.

The court held that the Writ only secured the spousal support arrears owing as of the date the property was transferred to the applicant, and did not attach to subsequent unpaid pension payments.

The court calculated the total amount owing under the Writ, including interest, and allowed the applicant to set off costs awarded against the respondent in previous litigation.

This mid-trial ruling addressed the defendants' intention to cross-examine the plaintiff and her property guardian on the total amount of an accident benefits settlement in a tort action.

The court denied permission to inquire about the total settlement amount, finding its prejudicial effect outweighed its probative value, especially given the plaintiff's mild brain injury.

However, the court allowed cross-examination on specific components of the settlement (caregiver, attendant care, and housekeeping/home maintenance expenses) that were expressly pleaded and denied, deeming these relevant to the mitigation defence.

The ruling clarified that collateral benefits are deducted by the trial judge as a matter of law after the jury's verdict.

The plaintiff, Can Duc Diep, advanced $500,000 to the defendant, Hien Cong Pham.

Diep claimed this was a loan, while Pham asserted it was an investment in a magnetic generator venture that ultimately failed.

Diep brought a cross-motion for summary judgment to recover the funds, and Pham brought a motion for summary judgment to dismiss the action against him.

The court found that the advance was a loan, supported by a written loan agreement, a "loan" notation on the cheque, and Pham's conduct, including a partial repayment and a statement about selling his house to repay the debt.

The court rejected Pham's arguments for rectification of the agreement and his claim that the advance was an investment, noting that Pham never personally owned the shares he purported to sell.

The court also determined that granting summary judgment on the loan issue was appropriate, despite a pending fraudulent conveyance claim against Pham and his wife, Huong Thi Duong, as the issues were distinct and already bifurcated.

Third Line Homes Inc., a custom home builder, brought a motion for summary judgment against Patricia Grant for outstanding payments on a home construction agreement.

Grant defended on the basis of incomplete work, deficiencies including moisture and mould in the basement, and argued that the dispute should be subject to arbitration under the Ontario New Homes Warranties Plan Act (ONHWPA).

The court dismissed the motion for summary judgment, finding that Grant had not properly brought a motion to stay the action for arbitration, but also that there were genuine issues requiring a trial, particularly regarding the completion of the house, the alleged deficiencies, and the need for expert evidence on moisture and mould.

The respondents to a counter-application filed a requisition to dismiss the counter-application because the applicant failed to pay previously ordered costs by the specified deadline.

The court reviewed the affidavit confirming non-payment and ordered the counter-application dismissed in accordance with its prior order.

The applicant union sought judicial review of a labour arbitration award that upheld the termination of a registered nurse for stealing narcotics from the respondent hospital.

The nurse suffered from a drug addiction.

The Divisional Court found that the arbitrator's decision was unreasonable because he failed to properly consider whether the hospital engaged in indirect discrimination by terminating the nurse rather than accommodating her disability.

The arbitrator improperly equated the nurse's guilty plea to criminal theft with voluntary behaviour in the human rights context, applying a higher standard of causation than required.

The court set aside the arbitration award and remitted the matter back to the arbitrator to determine the issue of indirect discrimination.

The appellant architect appealed a decision of the Discipline Committee finding him guilty of professional misconduct for failing to notify a prior architect on three projects and for providing architectural services through an unlicensed entity.

The Divisional Court upheld the findings regarding the failure to notify, concluding the Committee reasonably interpreted the regulation.

However, the Court set aside the finding regarding unlicensed practice, holding the Committee failed to determine whether the drawings at issue constituted a 'design' under the Architects Act.

The matter was remitted to the Committee on that issue.

The tenant appealed a Landlord and Tenant Board order terminating her tenancy and evicting her for unreasonably refusing the landlord entry to her unit.

The tenant argued the Board Member was biased, failed to provide adequate reasons, and made unreasonable findings of fact, particularly regarding allegations of racism against the landlord's superintendent.

The Divisional Court dismissed the appeal, finding no reasonable apprehension of bias, that the reasons were adequate, and that the Member's factual findings were supported by the evidence.

The plaintiffs, Falcon Motor Express Ltd. and Jarnail Singh Sidhu, brought a motion for an interim order under s. 248(3) of the Business Corporations Act, seeking to compel the defendant, Arandeep Singh Grewal, to immediately transfer his 50% shares in Falcon to Jarnail or Falcon, without payment or security.

This motion followed an earlier interlocutory order removing Grewal as a director and officer due to oppressive conduct and wrongful competition.

The plaintiffs argued that Falcon could not obtain necessary financing as long as Grewal remained a shareholder, causing irreparable harm.

The court found the plaintiffs established a strong prima facie case of oppression and irreparable harm, and the balance of convenience favored them.

However, the court declined to order the transfer without security, noting that Falcon could not be the purchaser due to solvency requirements and its inability to claim set-off as a "complainant." The court ordered Grewal to transfer his shares to Jarnail, conditional on Jarnail posting $2 million security, to be held until further order.

Following the dismissal of the appellants' appeal from an order liquidating the corporate defendant, the respondent sought costs of the appeal and a prior stay motion.

The Divisional Court fixed costs at $25,000 on a partial indemnity basis, payable solely by the personal appellants to prevent the respondent from effectively paying half of his own costs through the corporation.

The court also ordered the personal appellants to fully indemnify the respondent and the corporation for the fees of a monitor appointed during the stay, as the monitor was necessitated by the personal appellants' oppressive conduct.

The court considered costs for four motions in a family law case where both parties had mixed success.

The respondent sought $20,000 in partial indemnity costs, while the applicant, self-represented, argued for costs to be reserved to the trial judge.

The court applied Family Law Rule 24(1) and principles from Serra v. Serra and Boucher v. Public Accountants Council of Ontario.

It found the respondent moderately more successful on child-related issues, assessing her overall success at approximately 20%.

The court awarded the respondent $4,000 in all-inclusive costs, finding it fair and reasonable given the mixed results and the objectives of costs awards.

The defendants sought costs of $35,000 all-inclusive after successfully bringing a motion to stay the action.

The plaintiff opposed the quantum, arguing it was excessive.

The court found the defendants were entitled to costs on a partial indemnity scale.

Considering the factors under Rule 57.01 and previous costs awards in similar litigation involving the plaintiff, the court awarded the defendants costs in the amount of $17,500 all-inclusive.

The parties brought multiple motions concerning parenting arrangements, equalization of net family property, and retroactive child support.

The court addressed the need for a fixed parenting schedule, dismissing the applicant's request for a final shared custody order due to ongoing conflict.

Regarding equalization, both parties' motions for an equalization payment were dismissed, but the applicant's request for further disclosure concerning the respondent's business valuation was granted.

The respondent's motion for retroactive child support was also dismissed, deemed a matter for trial.