Michael G. Emery

The applicant, charged with aggravated assault, brought a Charter application seeking a stay of proceedings based on alleged breaches of her section 8 and 10 rights.

The court found that a police officer conducted an unreasonable strip search in the field without a caution, violating section 8.

The court also found a section 10(b) breach when a portion of the applicant's telephone call with duty counsel was inadvertently recorded.

However, the court dismissed the remaining Charter claims, including the allegation that videotaping the applicant using the toilet in a holding cell violated section 8.

The court declined to order a stay of proceedings, instead excluding utterances made during the search and the recorded portions of the call with counsel under section 24(2).

The tenant appealed a Landlord and Tenant Board order terminating her tenancy and ordering eviction after police found a loaded firearm and drugs in her unit, which were possessed by her son.

The tenant argued the Board erred in law by relying on hearsay evidence and misapplying the eviction and relief provisions of the Residential Tenancies Act.

The Divisional Court dismissed the appeal, finding that the Board's reliance on hearsay was permitted under the Statutory Powers Procedure Act and that the tenant's arguments raised unreviewable questions of fact or mixed fact and law.

The plaintiff brought a motion for default judgment against several defendants who were noted in default in an action for mortgage fraud.

The plaintiff alleged that one defendant impersonated his brother to obtain a mortgage loan, facilitated by the other defendants acting as mortgage brokers.

The court dismissed the motion, finding that the facts deemed admitted and the evidence provided did not establish the necessary connection between the proceeds of the fraud and the defendants noted in default, as there was no evidence regarding who negotiated the bank drafts from the lawyer's trust account.

Following the dismissal of the plaintiffs' solicitor negligence action for delay, the defendant Whyte was awarded costs on a partial indemnity basis.

The plaintiffs appealed the initial assessment officer's certificate, and the parties consented to have the court assess the costs de novo.

Applying the factors under Rule 58.06(1), the court reduced the time claimed for discoveries and trial preparation, ultimately assessing the costs at $23,438.50 and ordering the defendant to return the excess amount previously paid by the plaintiffs.

The plaintiff sued his disability insurer for long-term disability benefits.

The insurer brought a motion for summary judgment to dismiss the action, arguing that a $314,843 settlement the plaintiff received from his former employer upon termination was fully deductible from his LTD benefits under the policy.

The court dismissed the motion, finding that the nature and component parts of the settlement package were unclear from the documentary record.

The court concluded there was a genuine issue requiring a trial to determine whether the settlement funds constituted income replacement or disability payments subject to deduction.

The applicants and respondent are brothers involved in a dispute over their late father's estate.

The applicants, acting as estate trustees, and the respondent both brought motions for directions regarding various issues, including the validity of a codicil, alleged undue influence, accounting of personal property, and distribution of sale proceeds.

The court ordered that the disputed issues be litigated as an action, with the respondent as plaintiff and the applicants as defendants.

The court also ordered the parties to attend mediation prior to trial, with the costs of the mediator to be borne by the estate.

The plaintiff was injured when she fell on a public transit bus.

At trial, the jury awarded $35,000 in general damages and $5,000 for past housekeeping.

On post-trial motions, the court held that while the defendant employer was vicariously liable for the driver's negligence, its liability was limited by the Insurance Act to the amount the driver would be liable for.

Applying the statutory deductible reduced the general damages to zero.

Furthermore, the court found the plaintiff did not meet the statutory threshold for permanent serious impairment.

The housekeeping award was also reduced to zero due to collateral benefits received from the plaintiff's own insurer.

The plaintiffs brought an action for the release of two tranches of escrow funds held pursuant to a share purchase agreement.

The defendant moved to stay the action in favour of arbitration, arguing its claims for equitable set-off fell under the agreement's arbitration clause.

The plaintiffs moved for summary judgment.

The court dismissed the motion for a stay, finding the claim for the first tranche was a proper matter for summary judgment and fell within the statutory exception to mandatory arbitration.

The court granted partial summary judgment for the first tranche, holding that the defendant's unliquidated claims for equitable set-off could not be used to withhold the escrow funds.

However, the court found a genuine issue requiring a trial regarding the accounting adjustments for the second tranche and ordered a mini-trial.

The plaintiff successfully opposed the defendants' motion for summary judgment and sought costs on a substantial indemnity basis.

The court found that the defendants acted unreasonably in bringing the motion, as there was no factual or legal basis for their limitation period defence regarding the nuisance and snow loading claims.

Additionally, the plaintiff had served an offer to settle the motion.

The court awarded the plaintiff costs on a substantial indemnity basis, fixing the quantum at $80,673.62 after applying a 20% reduction to the fees claimed for being moderately excessive.

This was a standalone costs endorsement following dismissal of an application.

The successful respondent sought substantial indemnity costs, but the court held that elevated costs require reprehensible or egregious conduct or other circumstances deserving chastisement, which were absent here.

The court applied the fair and reasonable costs principles and allowed costs only on a partial indemnity basis, disallowing part of one lawyer's time while rejecting the applicants' argument for deductions based on cross-examinations conducted in the application.

Costs were fixed at $10,743.89, payable by the applicants jointly and severally within thirty days.

The applicant father sought costs of $27,420.18 after successfully opposing the respondent mother's motion to relocate their two children to Kitchener and succeeding on his own motion to keep the children in Mississauga.

The mother opposed the costs claim, arguing for no costs or a maximum of $5,000 payable in installments due to her economic circumstances.

The court found the father was entitled to costs on a partial indemnity scale, noting the mother took a risk by bringing her motion in the face of previous court orders without necessary evidence.

The court fixed costs at $10,000, payable by the mother in four installments.

The defendant, Her Majesty The Queen in Right of Ontario, brought a motion to stay an order dated August 4, 2017.

Following the Divisional Court's dismissal of Ontario's motion for leave to appeal on October 3, 2017, the Superior Court of Justice dismissed the motion to stay as moot.

Costs of the motion were reserved to the disposition of the defendants' motions for summary judgment.

The plaintiffs sought costs of $132,992.26 after successfully opposing the defendants' motions to quash summonses.

The defendants argued that costs should be reserved to the disposition of upcoming summary judgment motions, or alternatively that the costs claimed were excessive.

The court found that the plaintiffs' costs outline did not sufficiently delineate the time spent on the motions to quash versus other related motions.

Due to the lack of required facts and detailed submissions, the court reserved the costs of the motions to quash to the hearing of the motions for summary judgment.

Nadia Minetto, an accounting manager, defrauded her employer, Wescom Solutions Inc. (WSI), by using its corporate credit card to purchase Apple products and reselling them.

Gabriel Fung, through his businesses GF International and Plus One Solutions, purchased over 10,000 Apple products from Minetto for $5.2 million in cash.

WSI obtained a consent judgment against Minetto and brought an action against Fung and his entities, alleging knowing receipt or wilful blindness to the fraudulent nature of the goods.

The court found that Fung was wilfully blind to the fact that the Apple products were stolen or fraudulently obtained from March 30, 2012, onwards.

Judgment was granted against Fung and his businesses for $5,094,674.72, plus interest, with a corresponding crossclaim for contribution and indemnity against Minetto.

The defendants, Sharon Gooden-Allen and Desmond Allen, defaulted on a second charge on their property, which was subsequently transferred from Surrinder Jass to Sean Wilson.

Wilson then entered an Agreement of Purchase and Sale (APS) with Sean Brown.

The Allens challenged the validity of the assignment and the propriety of the sale, bringing a motion to stay the APS.

Wilson brought a cross-motion to have an order to continue the action made *nunc pro tunc*.

The court found the assignment of the charge to Wilson to be valid and the APS bona fide, dismissing the Allens' motion to stay the sale.

Wilson's motion for a *nunc pro tunc* order to continue was granted, allowing him to enforce the judgment and exercise his rights as chargee in possession.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action on the basis that the claims were statute-barred under the Limitations Act, 2002.

The plaintiff claimed damages for anticipated snow loading caused by the construction of an adjacent City Hall addition, as well as damages in nuisance for noise, dust, vibration, and hoarding during construction.

The court dismissed the motion, finding genuine issues requiring a trial.

The court held that a claim for snow loading damage does not arise until actual damage occurs, and the nuisance claim may constitute a continuing cause of action.

The applicants entered into agreements to purchase pre-construction condominiums from the respondent developer.

The agreements required the purchasers to provide financial disclosure and mortgage approvals within a specified time.

The applicants failed to provide the required documentation on time, and the respondent terminated the agreements.

The applicants sought relief from forfeiture under s. 98 of the Courts of Justice Act.

The court dismissed the application, finding that the applicants had not exercised reasonable diligence to comply with the agreements, their breach was substantial, and there was no reliable evidence of the disparity between the value of the properties and the damage caused by the breach.

The defendants, Ontario and OLG, brought motions to quash summonses to witness served by the plaintiffs on 13 non-parties, including former and current Cabinet ministers, in advance of pending summary judgment motions.

The plaintiffs sought to examine these witnesses under Rule 39.03 regarding the cancellation of the Slots at Race Tracks Program (SARP).

The court held that the defendants had standing to challenge the summonses and that the plaintiffs had met the low threshold of showing the proposed witnesses might have relevant evidence.

The court rejected arguments that the examinations were an abuse of process or barred by Cabinet confidentiality at this stage.

However, the court quashed the summonses served on Premier Kathleen Wynne and Minister Ted McMeekin on the basis of parliamentary privilege, as they were sitting members of the legislature.

The defendants Robert Stewart and Indicom Appraisal Associates Ltd. brought a motion for summary judgment to dismiss the plaintiffs' action.

The plaintiffs, Correct Building Corporation and Correct Group Inc., claimed damages under various causes of action, including civil conspiracy, negligent or fraudulent misrepresentation, negligence, unlawful interference with economic relations, and inducing breach of contract, stemming from an appraisal of the Allandale Station lands prepared for the City of Barrie.

The court dismissed the claims for civil conspiracy and negligent or fraudulent misrepresentation, finding no genuine issue for trial.

However, the court found genuine issues requiring a mini-trial for the remaining claims (negligence, inducing breach of contract, wrongful interference with economic relations) concerning the limitation period and the enforceability of the Preliminary Agreement, particularly regarding the role of an agent and the impact of environmental/archaeological issues on property value.

This endorsement addresses scheduling and the presiding judge for summary judgment motions brought by two defendants, Frank Zito and Alan Keery.

The judge, appointed under Rule 37.15 to hear all motions in the action, extended a deadline for one defendant's materials and established a new timetable for the motions.

However, citing policy considerations akin to those in Rule 50.10(1) and the Court of Appeal's decision in Royal Bank of Canada v. Hussain, the judge declined to hear the summary judgment motions because the plaintiff did not provide written consent as required by Rule 37.15(2) for a Rule 37.15 judge to preside over a trial-like proceeding.

The judge will continue to hear procedural motions in the action.