Montgomery Shillington

The appellant homeowners' action was administratively dismissed for delay under r. 48.14(1) of the Rules of Civil Procedure because it was not set down for trial within five years of commencement.

The motion judge declined to set aside the dismissal, applying the Reid factors and finding insufficient evidence to explain the delay, with inferred prejudice where examinations for discovery had not occurred.

The Court of Appeal found no palpable and overriding error in the motion judge's reasoning, noting that the appellants bore the primary responsibility for their action's progress and that the delay was moving into the realm of 'inordinate' once the five-year mark was crossed.

The plaintiffs brought a motion seeking leave to amend their statement of claim against Tarion Warranty Corporation and to add the Home Construction Regulatory Authority (HCRA) as a defendant.

The proposed amendments included new allegations regarding a 2007 provincial offences conviction, a 2016 refusal to register, and a 2019 notice of proposal.

The court granted the motion in part, allowing amendments that clarified existing claims or arose from the same factual matrix, but refusing amendments that introduced new, statute-barred causes of action or sought relief outside the court's jurisdiction.

The court also permitted the plaintiffs to add the HCRA as a defendant for a damages claim, but refused to allow a claim for a mandatory order against the regulator, holding that such relief must be sought by way of judicial review in the Divisional Court.

The applicant sought declarations of her mother's incapacity to manage property, personal care, and instruct counsel, and an order for a new capacity assessment, as well as removal of her mother's s. 3 counsel.

The court dismissed the applicant's motion, finding that previous assessments of incapacity for property and personal care were sufficient and that a further assessment for capacity to instruct counsel was unnecessary and intrusive.

The court affirmed the role of s. 3 counsel and the principle that counsel determines their client's capacity to instruct, absent strong evidence to the contrary.

The defendants brought a Rule 21 motion to strike portions of a statement of claim arising from a dispute regarding mould contamination in a newly constructed home and Tarion’s warranty decision.

The plaintiffs sought damages against Tarion and a Tarion employee, including punitive damages and an “open claim” relating to alleged long‑term health impacts.

The court held it was plain and obvious that no reasonable cause of action was disclosed against the employee because the pleadings contained no allegations of fraud, deceit, dishonesty, or independent tortious conduct.

The claim for punitive damages was also unsupported by pleaded facts demonstrating malicious or high‑handed conduct.

The request for an “open claim” was barred by statutory limits and exclusions under the Ontario New Home Warranties Plan Act.

The claims against the employee and the impugned remedies were struck without leave to amend.

On a contested passing of accounts, estate trustees sold the estate’s principal asset—a farm—to a sibling beneficiary for substantially less than its appraised market value and without exposing the property to the open market.

Beneficiary objectors alleged breach of fiduciary duty, improper estate expenditures, and excessive executor compensation.

The court held the estate trustees breached fiduciary obligations by selling the asset below fair market value and failing to treat beneficiaries impartially.

Certain estate expenditures incurred in connection with the improper transaction were characterized as waste and ordered repaid personally by the trustees, while other costs associated with a subsequent open-market sale were allowed.

Executor compensation was significantly reduced and the accounts approved subject to the court’s corrections and disallowances.