Michael G. Emery

Maple Trust Company, a non-party, successfully moved to vary a Mareva order and subsequently sought costs.

The Plaintiff, Trade Capital Finance Corp., opposed the costs award, arguing for no costs or a significant reduction due to the novelty of the legal point involved in the motion.

The court acknowledged the novelty of the issue but determined that a complete denial of costs was inappropriate.

Applying principles from various precedents, the court awarded Maple Trust Company reduced costs, balancing the novelty of the legal question with the need to partially indemnify the successful party.

The third party insurer, CAA, brought a motion for summary judgment to determine if the defendant driver, Jeffrey Sorto Torres, was in possession of his father's (Victor Sorto Rivera) vehicle with or without consent at the time of a motor vehicle accident.

The determination would affect Victor's vicarious liability under the Highway Traffic Act and Wawanesa Mutual Insurance Company's uninsured motorist coverage.

The court found that Victor had given implied consent for Jeffrey to possess the vehicle, primarily due to Jeffrey being left in charge of the household and his autistic brother, and the accessibility of car keys.

Consequently, CAA's motion for summary judgment to dismiss the action against Victor Rivera was dismissed.

The applicants successfully brought a motion finding the respondents in civil contempt for failing to return nine vehicles as ordered by the court.

In this decision, the court determined the costs of the contempt motion and the appropriate sanction.

The court awarded the applicants costs on a substantial indemnity basis, fixed at $42,633.25, noting the respondents' deliberate but not entirely egregious conduct.

For the contempt sanction, applying the Boily factors, the court imposed fines of $10,000 on the corporate respondent and $2,500 on the individual respondent, payable to the Provincial Treasurer, to reflect deterrence and denunciation while acknowledging the contempt had since been purged.

Khatija Khatri, successful in an application to discharge instruments from her property title, sought substantial indemnity costs.

Talat Khan, the respondent, opposed, citing Khatri's delay and uncooperative conduct, and the reinstatement of a Writ of Seizure and Sale in a related action.

The court awarded Khatri substantial indemnity costs from the date of her offer to settle, acknowledging her success on the application.

However, the quantum was reduced due to both parties' litigation conduct and the applicant's significant delay in pursuing the application.

The final costs award of $33,206.33 was stayed pending the determination of costs in a related "Brampton action."

The defendant, Walmart Canada Corp., brought a motion for leave to appeal an order by Justice Barnes that dismissed Walmart's motion for summary judgment.

Justice Barnes had found a genuine issue requiring a trial regarding the plaintiff's slip and fall claim and declined to use enhanced fact-finding powers.

The current court, presided over by Emery J., dismissed Walmart's motion for leave to appeal, finding no conflicting decisions or reason to doubt the correctness of Justice Barnes' order.

The court also determined that the issues raised did not transcend the private interests of the parties to become a matter of public importance, thus failing to meet the strict test for leave to appeal under Rule 62.02(4).

Her Majesty the Queen in Right of Ontario (HMQ) sought an order to enforce an agreement between counsel to delay examinations under Rule 39.03 pending a motion to quash summonses, or alternatively, to stay the summonses.

The court applied the RJR MacDonald test for a stay, finding a serious issue to be tried regarding the quashing of summonses and the standing of HMQ/OLG to quash summonses for unrepresented witnesses.

The court determined that proceeding with examinations would cause irreparable harm to HMQ's legal interests by rendering the motion to quash moot.

The balance of convenience favoured HMQ, and the motion to stay the summonses was granted.

The respondent, Karen Wharry, brought a motion under Family Law Rule 25(19) to change a final order regarding an equalization payment, alleging a mathematical miscalculation.

The applicant, John Wharry, opposed, arguing the court was functus officio as the order had been issued and entered, and previously appealed.

The court found it was functus officio, as the requested change was a conceptual legal error, not a clerical or mathematical mistake falling within the narrow exceptions to the functus officio principle or the scope of Rule 25(19).

The motion was dismissed for lack of jurisdiction.

The applicant mother brought a motion for interim child and spousal support, and for an order requiring the respondent father to consent to counselling for their child.

The father brought motions regarding primary residence and OCL involvement, which were adjourned.

The court ordered the father to consent to the child's counselling at a specific agency.

For child support, the court applied a set-off calculation based on the parties' current incomes, resulting in the father paying $43 per month, and capped section 7 expenses at $1,000 per child annually.

The claim for interim spousal support was dismissed without prejudice to the trial judge, as there was insufficient evidence regarding compensatory claims or need.

The court assessed costs following motions heard on March 13, 2017.

Both parties filed costs submissions, with Mr. Hill seeking substantial indemnity and Ms. Hill seeking partial or substantial indemnity.

The court applied the fundamental objectives of costs rules from Fong v. Chan and the fairness principle from Boucher v. Public Accountants Council.

Considering Family Law Rule 18 regarding offers to settle, the court found Mr. Hill to be the successful party, despite his offer not fully meeting the criteria for full recovery under Rule 18(14).

Costs were fixed at $6,500, all-inclusive, payable by Ms. Hill from her share of the matrimonial home proceeds.

The plaintiff, Trade Capital Finance Corp., obtained a Mareva injunction over the assets of certain defendants, including The Cash House Inc. (TCHI), in a fraud action.

Maple Trust Company, a non-party, had obtained writs of seizure and sale against TCHI for unrelated costs awards.

Maple Trust moved to vary the Mareva injunction to permit it to seize funds from one of TCHI's bank accounts.

The court granted the motion, holding that a Mareva injunction is not proprietary in nature and does not give the plaintiff priority over other bona fide creditors enforcing legal process.

The injunction merely restrains the defendant from disposing of assets, not preventing lawful seizure by other creditors.

This endorsement assesses costs following the plaintiff's acceptance of the defendants' offer to settle a motor vehicle accident claim for $34,000 plus partial indemnity costs.

The plaintiff sought over $180,000 in fees and disbursements.

The court applied Rule 58.06, emphasizing fairness, reasonableness, and proportionality.

It found the plaintiff's initial damage claims excessive, particularly for income loss and housekeeping expenses, which lacked strong evidentiary support.

The court significantly reduced the claimed costs, excluding certain expert reports and medical illustrations, and applying a proportionality reduction to the remaining fees and disbursements.

This is a costs endorsement following the plaintiff's successful opposition to the defendants' motion to set aside a Certificate of Pending Litigation (CPL).

The court addressed costs for two attendances: an adjournment on February 28, 2017, and the substantive motion hearing on March 10, 2017.

For the February 28th attendance, the court declined to award costs due to conflicting submissions and insufficient information regarding the two-hour adjournment process.

For the March 10th motion, where the plaintiff successfully preserved its CPL, the court applied the general rule that costs follow the event.

The plaintiff was awarded partial indemnity costs totaling $7,116.10, inclusive of fees and disbursements, payable forthwith by the defendants, jointly and severally.

The appellant collision centre appealed a Small Claims Court judgment awarding the respondent damages for unauthorized vehicle repairs.

The appellant argued the trial judge erred by denying an adjournment and by granting judgment on a cause of action not pleaded.

The Divisional Court dismissed the appeal, finding the trial judge reasonably exercised her discretion regarding the adjournment and correctly determined that the issue of unauthorized repairs was adequately raised in the pleadings.

The appellant, Royal Windsor Collision Centre, appealed a Small Claims Court judgment awarding the respondent, Julie Hoffman, damages for unauthorized vehicle repairs and rental car costs.

The appeal focused on the award for unauthorized repairs.

The Divisional Court dismissed the appeal, finding that the trial judge reasonably exercised discretion regarding an adjournment request and correctly determined that the "repair without authorization" issue was adequately pleaded.

The court also found it unnecessary to rule on the conversion claim, but noted the original pleading did not allege conversion.

The plaintiff, Dean Heffernan, brought a motion for the judge to recuse himself from hearing summary judgment motions in a defamation action.

Heffernan alleged a reasonable apprehension of bias based on several grounds, including the judge's handling of a security for costs motion, language used in prior endorsements, repeated questioning during submissions, and the judge's experience in criminal trials involving police.

The court applied the high threshold test for reasonable apprehension of bias, emphasizing the strong presumption of judicial impartiality.

The motion for recusal was dismissed, as the court found no substantial grounds to support a reasonable apprehension of bias from an informed, objective observer.

In this family law dispute, the court addressed cross-motions for temporary orders and summary judgment.

The respondent, Ms. Hill, sought temporary sole custody, child/spousal support, and exclusive possession of the matrimonial home.

The applicant, Mr. Hill, sought summary judgment for shared custody and the immediate sale of the matrimonial home.

The court dismissed Mr. Hill's summary judgment motion for custody and access, finding genuine issues requiring a trial, and also dismissed Ms. Hill's motion for exclusive possession, as the alleged conduct did not meet the threshold for "violence" under the Family Law Act.

The court granted temporary orders for primary residence of the child with Ms. Hill, generous access for Mr. Hill, and specific child and spousal support payments.

Crucially, the matrimonial home was ordered to be listed for sale, as Ms. Hill could not afford to retain it and no malicious or oppressive motive for sale was found.

The applicant sought to vary a 2012 Manitoba support order under the Inter-Jurisdictional Support Orders Act, 2002.

The court noted the absence of a provisional order and limited evidence, proceeding as a matter of first instance.

It issued temporary orders: terminating child support for one child as of February 1, 2015, and setting temporary child support and proportionate special expenses for another child based on the respondent's declared income.

The balance of the application was adjourned for a full hearing due to contested issues.

This decision addresses multiple motions in a long-standing family law enforcement action.

The court granted Khatija Khatri's application to vacate a Certificate of Pending Litigation (CPL) and other instruments from title to Bellwood Farm, finding the CPL had no legal basis after a prior order was set aside and the underlying application dismissed.

The court also granted Mohammad Munir Subhani and Khatija Khatri's motion to dismiss the action against them for inordinate and inexcusable delay, citing prejudice due to fading memories and health issues of key witnesses.

Talat Khan's motion for a new CPL was dismissed due to the dismissal of the action against those defendants and her own delay.

However, Talat Khan's motion for the reinstatement of a Writ of Seizure and Sale (No. 98-0259) was granted, as it was a support enforcement writ under the Family Law Rules and thus did not expire, and its removal was improper.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) registered against their properties, which were subject to an Agreement of Purchase and Sale (APS) with the plaintiff.

The dispute centered on conflicting closing date clauses in the APS and a subsequent amendment, leading to a triable issue regarding the agreement's validity.

The court applied the "Dhunna factors" to assess the equities, finding the properties unique and the plaintiff's primary claim for specific performance valid.

The motion to discharge the CPL was dismissed, as the defendants failed to meet the burden of proof.

The applicant, Simon Gregory, sought confirmation of a provisional order from the Supreme Court of British Columbia concerning the termination of child support and the set-off of child support arrears.

The respondent, Geraldine Carmen Holmes, opposed aspects of the provisional order and sought costs.

The court confirmed the termination of child support for both children (Jordan and Bailey) as agreed.

On the contested issue of arrears, the court found the applicant owed $8,767.29 in arrears to the respondent, exceeding the applicant's claim of $1,255.71.

The court determined the respondent was the more successful party on the relevant contested issue and awarded her partial indemnity costs of $1,804.00, to be paid by the applicant within 30 days.

The court declined to address issues outside the scope of the provisional order, such as equalization payments or postsecondary expenses.