Michael N. Freeman

The moving party sought leave to issue and register a certificate of pending litigation against a condominium said to secure repayment of substantial advances and ongoing mortgage-related payments.

The responding party disputed any present proprietary entitlement and maintained that repayment or transfer rights would arise only on death.

The court held that the threshold on a CPL motion is whether there is a triable issue as to an interest in land, not whether the claim will ultimately succeed, and found that the pleaded constructive trust claim and evidence of payments toward the property's carrying costs met that threshold.

After weighing the equitable factors, including the risk that the property could be dealt with in a way that would leave the moving party without an effective remedy, the court granted the motion.

No costs were awarded.

The plaintiffs brought a motion to strike the defendants' statement of defence and counterclaim due to their persistent failure to answer undertakings, produce relevant documents, and comply with multiple court orders regarding disclosure of banking transactions.

The defendants had received several adjournments and "last chances" from previous judges but continued to be materially deficient in their disclosure, particularly concerning the use of over $1.1 million advanced by the plaintiffs for a real estate development.

Applying the principles from Falcon Lumber Limited v. 2480375 Ontario Inc., the court found the defendants' non-compliance deliberate, unequivocal, and without reasonable explanation, significantly impacting the litigation's cost and delay.

The court concluded that striking the pleadings was a proportionate remedy to uphold the integrity of the civil justice system and the Commercial List's efficiency.

The applicant father brought a motion to vary an interim order to remove the requirement that he facilitate daily Facetime calls between the respondent mother and the child during his extended holiday parenting time.

The mother opposed the motion and sought additional relief, including make-up parenting time.

The court found that while the mother's previous contempt constituted a material change in circumstances, the father failed to demonstrate that eliminating the calls was in the child's best interests.

Both the father's motion and the mother's requests for additional relief were dismissed.

In this costs endorsement following success in a wrongful dismissal action, the plaintiff sought substantial indemnity costs of the action after obtaining summary judgment on liability, succeeding on appeal, and later receiving damages.

The court reviewed the governing principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing reasonableness, proportionality, and settlement conduct.

Although the defendant had taken a hard line in settlement and prolonged the litigation, the court held that substantial indemnity was not warranted.

Costs were fixed on a partial indemnity basis in an amount the court found fair and reasonable in light of the complexity, duration, importance of the issues, and the plaintiff's success.

Following a finding of wrongful dismissal on summary judgment, the court assessed damages for a 48-year-old managerial employee with 24 years of service.

The court awarded 22 months' pay in lieu of notice, along with compensation for lost medical, dental, and pension benefits.

The plaintiff's claim for lost bonuses was dismissed due to a lack of evidence regarding past payments.

The court also awarded $40,000 in aggravated damages, finding the employer was unduly insensitive to the plaintiff's known psychological distress leading up to and during the dismissal.

IBM Canada Ltd. appealed a summary judgment order that dismissed its motion for summary judgment and granted summary judgment to its former employee, Vinay Nagpal, for wrongful dismissal.

IBM argued that Nagpal had resigned, abandoned his position, or that his employment contract was frustrated.

The Court of Appeal dismissed IBM's appeal, upholding the motion judge's findings that Nagpal did not resign or abandon his employment, and the contract was not frustrated.

The court also affirmed that the Short-Term Disability Policy's presumption of resignation was rebuttable by other evidence.

The issue of damages was remitted to the motion judge.

The court provided directions for quantifying damages following a summary judgment that found the plaintiff wrongfully dismissed.

Despite a pending appeal by the defendant, the court ordered the plaintiff to submit damages evidence, with the defendant to respond only if the appeal is dismissed.

The court rejected the defendant's request for a full trial on moral damages, emphasizing that the summary judgment process should continue for damages quantification, including the potential for oral evidence under Rule 20.04(2.1) and (2.2) if necessary for a fair adjudication.

The appellant appealed the application judge's interpretation of a May 13, 2014 agreement, arguing it was tainted by illegality.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error or extricable error of law in the application judge's interpretation, noting that past litigation had already confirmed the agreement's validity and required specific performance.

Following a guardianship trial where success was divided, the applicants sought full indemnity costs of the proceeding and costs of three interlocutory motions.

The court found that while the applicants were more successful than the respondents, their insistence on unworkable care plans and the parties' mutual animosity unduly lengthened the proceeding.

The court denied enhanced costs and costs of the interlocutory motions, awarding the applicants partial indemnity costs fixed at $56,760.72.

On appeal from trial judge Sutherland's orders regarding spousal support and property division in a separation agreement dispute.

The trial judge found no basis to set aside the separation agreement under s. 56(4) of the Family Law Act but applied the Miglin test under s. 15.2 of the Divorce Act to award modest lump sum spousal support of $143,933 despite a spousal support waiver in the agreement.

The trial judge concluded the waiver did not substantially comply with the objectives of the Divorce Act.

The father appealed seeking to set aside the property provisions; the mother cross-appealed seeking to uphold the agreement in its entirety.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no reversible error in the trial judge's application of the law to the facts.

The defendant employer brought a motion for summary judgment to dismiss a wrongful dismissal action, arguing the plaintiff employee had resigned, abandoned his employment, or that the contract was frustrated due to his illness.

The plaintiff had taken a medical leave for depression and anxiety, and his short-term disability benefits were terminated by the plan administrator.

When the plaintiff refused to return to work on medical advice but also did not appeal the benefits denial, the employer deemed him to have resigned pursuant to its policy.

The court dismissed the employer's motion and instead granted summary judgment for the plaintiff, finding no clear and unequivocal resignation, no abandonment, and no frustration of contract, concluding the plaintiff was wrongfully dismissed.

This final judgment addresses the ongoing dispute among Jennie Carey's adult children regarding her guardianship for personal care and property.

Jennie, 91 and suffering from dementia, was found incapable of making her own decisions.

The court's interim decision had appointed Robert and Arthur as co-guardians for personal care, and Robert, Arthur, and Edward as co-guardians for property.

However, due to severe animosity and unilateral actions by both Robert and Arthur, the co-guardians were unable to cooperate.

The court found Arthur's financial conduct inexcusable and Robert's unilateral care plans not in Jennie's best interest.

Consequently, the court restructured the guardianship: Robert Carey was appointed sole guardian for Jennie's property, while Arthur Carey and Edward Carey were appointed co-guardians for Jennie's personal care.

The decision emphasizes the need for guardians to prioritize the incapable person's best interests over personal conflicts.

The plaintiff leased a seven-year-old used vehicle from the defendant and subsequently experienced numerous mechanical issues.

The plaintiff brought an action for negligent misrepresentation and breach of contract, alleging the defendant tampered with the odometer and failed to disclose the vehicle's true condition.

The Superior Court of Justice dismissed the action, finding no credible evidence of odometer tampering or misrepresentation.

The court held that the plaintiff leased the vehicle 'as is', declined to purchase an extended service plan, and failed to prove that the mechanical issues were present at the time of the lease or caused a subsequent collision.

The defendant, Ryszard Musiala, brought a motion for summary judgment seeking to dismiss the plaintiff Trustee's claim, lift a Certificate of Pending Litigation on a property, and declare no interest for the bankrupt or Trustee in the property.

The plaintiff, J.P. Graci & Associates Ltd., as Bankruptcy Trustee, opposed the motion, arguing that genuine issues requiring a trial existed regarding the beneficial ownership of the property and the legal impact of a lump-sum mortgage payment made by Musiala.

The court found significant inconsistencies in Musiala's evidence and insufficient facts to confidently determine the parties' interests or the application of equitable remedies like subrogation.

Consequently, the motion for summary judgment was dismissed, as a trial was deemed necessary to resolve the complex factual and legal disputes and avoid inconsistent findings.

The applicants sought to remove Arthur and Douglas Carey as attorneys for property and personal care for their mother, Jennie Carey, and to appoint Robert Carey as guardian, alleging financial impropriety and isolation.

The court found strong evidence of misconduct and neglect regarding property management, including failure to account for funds and non-compliance with disclosure orders.

While Jennie was physically well cared for and wished to remain with Arthur and Douglas, their failure to foster family contact was a breach of personal care duties.

The court removed Arthur and Douglas as sole attorneys.

For property, Arthur, Robert, and Edward Carey were appointed joint guardians.

For personal care, Arthur and Robert were appointed joint guardians.

The court emphasized a nuanced approach to balance Jennie's well-being and wishes with the need for financial oversight and family contact.

Purchasers appealed a motion judge's dismissal of their action for specific performance of an Agreement of Purchase and Sale.

The motion judge had determined that the purchasers failed to deliver the required deposit within the contractually specified 24-hour timeframe, rendering the agreement void.

The Court of Appeal found that the motion judge erred in drawing an inference that a personal cheque provided by the purchasers was not negotiable based solely on a bank statement showing insufficient funds at that moment.

The court held that the evidence was insufficient to support such an inference, particularly given that the purchasers demonstrated financial capacity by providing a bank draft within two days.

The appeal was allowed, the dismissal order was set aside, and the action was restored to the trial list.

The respondent mother sought a costs award of $18,788.88 following settlement of a family law application.

The applicant father had commenced proceedings seeking to change the parenting plan from the existing arrangement (approximately 39% of the time with the children) to a 50-50 "week about" schedule, and to reduce child support accordingly.

The mother opposed the application and sought sole custody.

The parties settled on January 19, 2017, with the mother obtaining sole custody and the father's parenting time being reduced to every other weekend and one Wednesday evening per week.

The court awarded costs to the mother in the amount of $6,000.00, finding that while the mother was entirely successful, the father had acted reasonably in accepting the Office of the Children's Lawyer's recommendations and settling the matter relatively quickly thereafter.

This is a costs decision following a trial in a construction lien matter where the plaintiff, Marlene McCloy, was largely successful.

The court awarded partial indemnity costs to McCloy for the period up to June 29, 2016, and substantial indemnity costs thereafter, pursuant to Rule 49.10(1) of the Rules of Civil Procedure, as McCloy's offers to settle were more favourable than the trial outcome.

The court declined to award costs personally against the defendant's counsel, Michael E. Freeman, despite frustrating conduct, accepting his explanations of weather delays and a Parkinson's flare-up.

Total costs awarded to McCloy against Bennett were $77,995.03, plus prejudgment interest.

The court issued a consent timetable for the delivery of materials regarding costs and damages, following a suggestion by the Court of Appeal.

A conference call was scheduled to determine the subsequent process.

The appellants were successful on the appeal, cross-appeal, and a motion to admit fresh evidence.

The respondent sought costs despite his lack of success, relying on an indemnity provision in a share purchase agreement triggered 'in the event of default'.

The Court of Appeal rejected this argument, holding that the provision could not be used to indemnify the respondent for unsuccessful appellate proceedings.

Costs of the appeal were awarded to the appellants on a partial indemnity basis fixed at $20,000.