Michael J. Valente

The defendants brought a motion to dismiss a proposed class action for delay under section 29.1(1) of the Class Proceedings Act and Rule 24.01 of the Rules of Civil Procedure.

The action, commenced in 2016, involved allegations of breach of fiduciary duty and other claims against the Haudenosaunee Development Institute and co-defendants.

The court found that the plaintiffs had satisfied the requirements of section 29.1(1)(a) by filing a final and complete certification motion record and section 29.1(1)(c) as the court had established a timetable for advancing the proceeding.

While the overall delay of over eight years was deemed inordinate, it was found to be excusable, largely due to the defendants' own strategic delays in prosecuting their dismissal motion and their refusal to proceed with the certification motion concurrently.

The court also found no actual prejudice to the defendants' ability to have a fair trial.

Consequently, the defendants' motion to dismiss for delay was dismissed.

The Crown sought to admit the defendant's 911 call statements, where he confessed to "hurting someone" arguing the 911 operator was not a person in authority or, alternatively, that the statements were voluntary.

The defence argued the operator was a person in authority and the statements were involuntary due to the defendant's intoxication and emotional state, which prevented him from having an operating mind.

The court found the 911 operator was a person in authority but concluded, after a voir dire, that the defendant possessed an operating mind at the time of the call, making his statements voluntary and admissible.

The offender, Shantel Mahadai, was convicted by a jury of robbery as an aider, specifically as the getaway driver.

The court found that she was a willing participant in the planned robbery from the beginning, rejecting her testimony as implausible.

The Crown sought a 3-year custodial sentence, while the Defence sought a 12-month conditional sentence.

The court emphasized denunciation and deterrence, finding that a conditional sentence was inconsistent with sentencing principles given the planned nature of the offence, the offender's lack of remorse, and her privileged background.

Despite mitigating factors such as her age, absence of a prior criminal record (except for a conditional discharge for fraud), and compliance with bail conditions, the court imposed a sentence of 2 years, 4 months, and 17 days in a federal penitentiary, after applying Duncan and Downes credits for harsh pre-sentence custody and strict bail conditions.

Ancillary orders included a 10-year weapons prohibition, DNA sample, and communication prohibition with co-accused.

The defendants brought two motions: one to set aside a certificate of non-attendance for a cross-examination and another to compel the plaintiff to answer refused questions and questions taken under advisement during her cross-examination on two affidavits.

The court granted both motions in favour of the defendants.

The certificate of non-attendance was set aside, as the plaintiff's counsel acted unreasonably in obtaining it.

The plaintiff was compelled to answer most of the refused questions, as the court found them relevant to the underlying contempt motion and the dismissal motion, and in some instances, solicitor-client privilege was impliedly waived.

Costs were awarded to the defendants on a substantial indemnity basis for the certificate motion due to the plaintiff's unreasonable conduct, and on a partial indemnity basis for the refusals motion.

This appeal concerned the reinstatement of a mortgage charge (FO Charge) on a property title after it was mistakenly deleted by the Land Registry Office.

The applicant, FirstOntario Credit Union, appealed the Director of Titles' decision to delete the reinstated charge, arguing for rectification of the register or that the respondents had constructive notice of its interest.

The court dismissed the appeal, affirming the doctrine of indefeasibility of title for bona fide purchasers and mortgagees for value without actual notice.

It held that constructive notice is insufficient to defeat registered interests and that the Land Titles Assurance Fund is the appropriate remedy for losses due to registry errors.

The applicant, charged with aggravated assault, sought a Rowbotham order for state-funded counsel, arguing his right to a fair trial would be compromised without representation.

His legal aid certificate was cancelled after he received an inheritance, which he subsequently spent.

The court found that legal representation was essential given the complexity of the case and the serious charge.

However, the application was deemed premature because the applicant failed to exhaust all legal aid appeals and did not provide sufficient evidence of indigence regarding family loans.

The application was adjourned to allow the applicant to complete the legal aid appeal process and provide further financial evidence.

The plaintiff sought long-term disability (LTD) benefits and general damages for breach of contract, claiming total disability due to chronic back and leg pain, anxiety, and depression.

The plaintiff had not submitted a formal LTD application, seeking relief from forfeiture.

The court granted relief from forfeiture, finding imperfect compliance.

However, the court ultimately dismissed the plaintiff's claim for LTD benefits and general damages, finding that he failed to prove total disability as defined by the policy, largely due to inconsistencies between his subjective complaints, objective medical evidence, video surveillance, and his work history.

The accused was charged with sexual interference, invitation to sexual touching, and sexual assault involving a 14-year-old complainant.

The alleged incidents occurred in the complainant's grandfather's basement where the accused resided.

The court heard evidence from the complainant, his mother, his grandfather, and the accused.

The judge applied principles of reasonable doubt and credibility assessment, including the W.(D.) framework and cautions against sexual offence myths.

While the accused's testimony was found to be incredible, and inconsistencies were noted in the complainant's and his family's evidence, the court ultimately found that the Crown had not proven the essential elements of the charges beyond a reasonable doubt.

The accused was acquitted of all charges.

The Attorney General for Ontario brought a motion on behalf of Monte McNaughton (former Minister of Labour) and Margaret Townsend (Director of the Office of the Worker Advisors) to quash two summonses to witness issued by self-represented plaintiffs in a proposed class action.

The plaintiffs sought to compel testimony regarding the Office of the Worker Advisors' (OWA) obligation to provide legal representation.

The court quashed the summonses, finding the evidence sought irrelevant to the pending Rule 15 motion (which addresses the requirement for class action representatives to be represented by counsel) and that the plaintiffs failed to establish the non-parties likely possessed relevant evidence.

The court also determined the examination constituted an abuse of process, as much of the information was already available or obtainable through other means, and that Townsend, as OWA Director, was immune from being summonsed under the Workplace Safety and Insurance Act.

The defendants brought a motion to strike the plaintiff's amended statement of claim under Rule 21.01(1)(b) for failing to disclose a reasonable cause of action.

The plaintiff, a home builder, had sued the defendant land developer and its principal for breach of contract, various torts, and oppression arising from a completed agreement of purchase and sale.

The court systematically analyzed all nine causes of action pleaded by the plaintiff and found that each failed to plead the necessary material facts or relied on non-existent legal duties.

The court struck all claims without leave to amend and dismissed the action.

Following the dismissal of the plaintiff's motion for summary judgment regarding a disputed legacy in her late father's will, the court determined the issue of costs.

The court rejected the plaintiff's argument that the traditional estate costs rules should apply, finding that the litigation was caused by the drafting solicitor's error, not the testator's actions.

Applying normal civil costs rules, the court ordered the plaintiff to bear her own costs due to her tactical conduct, ordered the drafting solicitor to bear his own costs because his error caused the litigation, and ordered the plaintiff to pay the partial indemnity costs of the estate and foundation.

The defendants moved to set aside a noting of default entered by the plaintiff.

The plaintiff opposed and brought a cross-motion for the recovery of personal property.

The court found it unreasonable for the plaintiff to have noted the defendants in default without prior notice, given that the plaintiff's counsel knew the defendants were in the process of retaining litigation counsel.

The court also found the defendants' delay in responding to be reasonable and that they had an arguable defence.

Consequently, the noting of default against both defendants was set aside.

The court further exercised its discretion to stay the plaintiff's action pending the adjudication of a related bankruptcy application, deeming it the most efficient way to resolve accounting issues between the parties.

The defendants were awarded substantial indemnity costs.

The accused, charged with one count of sexual assault involving multiple incidents over a lengthy period, brought an application for particulars under s. 587(1) of the Criminal Code.

He sought specific dates, times, and places of the alleged assaults.

The court dismissed the application, finding that the replacement indictment, which specified the time period, place, victim, and offence, combined with substantial Crown disclosure, provided sufficient information for the accused to make full answer and defence.

The Crown brought a motion to strike the plaintiff's class action statement of claim, which alleged de facto expropriation by the Crown due to delays at the Landlord and Tenant Board (LTB) and the Residential Tenancies Act.

The Crown argued the claim disclosed no reasonable cause of action, was a nullity due to the plaintiff's failure to provide statutory notice under the Crown Liability and Proceedings Act, and failed to specify the nature of relief claimed.

The court granted the motion, finding that the claim failed to plead the essential elements of de facto expropriation (no beneficial interest acquired by the Crown and no state action removing all reasonable uses of property).

The court also determined that the Crown could not be vicariously liable for the independent LTB's actions and that the proceeding was a nullity due to the plaintiff's admitted failure to provide the required 60-day notice to the Crown, rejecting the plaintiff's constitutional challenge to the notice requirement.

Leave to amend the statement of claim was denied as the defects were deemed incurable.

The plaintiff sought summary judgment for an $800,000 legacy from her late father's secondary will, arguing for a literal interpretation or that a later clause should prevail.

The defendants argued a drafting error, contending the legacy was conditional on the plaintiff not receiving property under the primary will, which did not occur.

The court applied the "armchair rule" and the Lipson principles for correcting drafting errors, finding an obvious error in the will.

The court dismissed the plaintiff's motion for summary judgment and ordered the will to be amended to reflect the testator's true intention that the legacy was conditional on the property transfer not occurring.

The offender was convicted by a jury of possession of methamphetamine and fentanyl for the purpose of trafficking.

The Crown sought a 6-year prison sentence, while the defence proposed a conditional sentence.

The court found the offender to be a mid-level trafficker motivated by commercial gain, but noted her lack of a criminal record and strong potential for rehabilitation.

Emphasizing the dangers of fentanyl and the need for denunciation and deterrence, the court rejected a conditional sentence and imposed a 4-year custodial sentence.

This is a costs endorsement following a ten-day family law trial.

The Applicant sought full recovery of legal fees, arguing success on dominant issues (decision-making, parenting time, child support, child's name) and the Respondent's unreasonable conduct, including false allegations.

The Respondent argued for no costs or limited costs, disputing the Applicant's success and her own conduct.

The court found the Applicant was the successful party on the dominant issues and that the Respondent's unreasonable behavior, coupled with the Applicant's offer to settle, justified an award of costs at the higher end of the substantial indemnity scale.

The Respondent was ordered to pay the Applicant $90,000 in costs.

The Workplace Safety & Insurance Board (WSIB) brought a Rule 2.1 motion to dismiss an urgent motion by Paul Taylor, one of the lead plaintiffs in a class action, who sought a contempt finding against WSIB for failing to finance his healthcare and an order compelling healthcare provision and monetary compensation.

The court found Taylor's motion lacked a basis for contempt as no prior court order had been breached.

Furthermore, the court determined it lacked jurisdiction over healthcare funding decisions, which fall under the exclusive authority of workers' compensation tribunals as per the Workplace Compensation Act and Workplace Safety and Insurance Act.

The WSIB's Rule 2.1 motion was granted, Taylor's motion was dismissed, and WSIB was awarded $250 in costs.

This application sought the court's opinion and direction on the interpretation and potential rectification of Shirley Cunningham's General and Limited Property Wills.

The core issue was whether Kimberly Cunningham, a grandchild born outside of marriage, should be considered a "child" of Tenny Clark-Drost for the purposes of a trust established in the wills, given an "Exclusion Clause" that defined "children" as not including those born outside marriage.

The applicant, Carrie-Lee Hofman, argued Kimberly was excluded.

The respondent, Kimberly Cunningham, sought rectification, arguing the clause was a drafting error contrary to the testatrix's true intent.

The court found that the drafting solicitor's inclusion of the Exclusion Clause and the use of a beneficiary class instead of specific names constituted a drafting mistake, as it did not align with Shirley's clear instructions to benefit both Carrie-Lee and Kimberly equally.

Rectification was ordered, deleting the problematic clauses from both wills, thereby including Kimberly as a beneficiary.

This decision addresses costs arising from a previous ruling where the Ellison Defendant's motion for leave to examine witnesses was denied, and motions by the plaintiffs, the Crown, and Iler Campbell LLP to quash summonses were granted.

The successful parties sought costs, with the plaintiffs and Iler requesting substantial indemnity due to the Ellison Defendant's conduct, which included voluminous, unhelpful, and amended materials, and an abuse of process by issuing irrelevant summonses to delay proceedings.

The Crown sought partial indemnity costs.

The Ellison Defendant did not submit costs arguments.

The court found the Ellison Defendant's conduct unnecessarily lengthened proceedings and constituted an abuse of process.

While not egregious enough for full substantial indemnity, the conduct warranted more than partial indemnity.

The court fixed costs for the plaintiffs, Iler, and the Crown, ordering the Ellison Defendant to pay.