Pamela L. Hebner

The plaintiff brought a motion for summary judgment seeking the return of funds she invested in a property purchased with her sister and brother-in-law.

The plaintiff provided the entire purchase price and contributed to renovations, but the property was registered solely in the defendants' names.

The court found that the defendants were unjustly enriched and failed to rebut the presumption of resulting trust.

Summary judgment was granted, ordering the defendants to pay the plaintiff $221,914.11, representing her total investment in the property.

The defendant brought a motion for summary judgment to dismiss the plaintiff's personal injury claim arising from a motor vehicle accident, arguing it was statute-barred.

The intervener, the plaintiff's former counsel, opposed the motion, while the plaintiff took no position.

The court determined that the limitation period began to run when the plaintiff's injuries could reasonably qualify as "permanent serious impairment" under the Insurance Act, which was found to be upon receipt of an independent medical examination report in November 2010, or at the latest, when the first statement of claim was issued in December 2011.

As the action against the correct defendant was commenced in December 2014, it was outside the two-year limitation period.

The defendant's motion for summary judgment was granted, dismissing the plaintiff's claim.

The applicant, Anna Maria Fiorito, made an assignment in bankruptcy after being ordered to pay $200,000 in costs to the respondent, Jefferson Ross Wiggins, arising from protracted family law litigation.

The respondent moved for an order annulling the bankruptcy or, alternatively, lifting the stay of proceedings under section 69.4 of the Bankruptcy and Insolvency Act (BIA) to enforce the costs award against the applicant's exempt assets (RRSPs and other investment assets).

The court found that the applicant had misled the court and the respondent regarding her intention to pay costs and not file for bankruptcy.

The court granted the respondent's motion to lift the stay of proceedings, allowing enforcement against exempt assets, and stayed the applicant's bankruptcy discharge for eight months to facilitate enforcement.

The plaintiff brought a motion for a representation order under Rule 12.07 to amend the statement of claim, adding the individual defendants as representatives of all members of the defendant trade union.

The defendants argued this would improperly add parties after the expiry of the limitation period.

The court found the motion was an attempt to correct an error in the title of proceedings under Rule 5.04, not to add new parties, as the union had been a party from the outset.

The court granted the representation order, noting the defendants' delay in bringing their own Rule 21 motion and the lack of prejudice.

The plaintiffs brought a motion under Rule 21.01(1)(a) to determine, before trial, whether legal expenses incurred for their participation in a coroner's inquest into the death of Jonathan Dew are potentially recoverable as pecuniary loss under section 61(1) of the Family Law Act.

The court found the motion was properly brought, as the relevant facts were not in dispute and the determination could shorten the trial or save costs.

Applying the "but for" test and principles from Macartney v. Islic, the court concluded that such legal expenses are indeed potentially recoverable.

The court rejected the defendants' argument that the Coroners Act provides a complete code for costs, finding no conflict with the Family Law Act in this context.

The plaintiffs moved for an order to transfer a Small Claims Court action to the Superior Court and to consolidate or try together four related actions.

By consent, the Small Claims Court action and a line of credit action were ordered to be tried together with the main action.

The contested part of the motion concerned the consolidation of the "Envirotech action" with the other three.

The court dismissed the motion to consolidate the Envirotech action, finding that it did not meet the "gateway" criteria under Rule 6.01(1) of the Rules of Civil Procedure, as there were no common questions of law or fact, the relief did not arise from the same transactions, and no other compelling reason for consolidation was presented.

The court noted that the Envirotech action was a straightforward claim for services rendered, distinct from the complex main action.

The accused, Asser Omar Gayle, was charged with possession for the purpose of trafficking.

He challenged the lawfulness of his arrest and subsequent search, alleging breaches of sections 8 and 9 of the Canadian Charter of Rights and Freedoms, and sought to exclude the evidence under section 24(2).

The court found that the police lacked objective reasonable grounds for the arrest, thus breaching sections 9 and 8.

However, applying the R. v. Grant framework, the court balanced the seriousness of the state conduct (police acted in good faith but showed lack of professionalism in testimony), the impact on the accused's Charter interests (reduced expectation of privacy in a vehicle, respectful treatment), and society's interest in adjudication on the merits (highly reliable evidence, exclusion would gut the Crown's case).

Ultimately, the court concluded that the factors favoring admission outweighed those favoring exclusion, and the evidence was admitted.

The plaintiff brought a motion to set aside orders dismissing several construction lien and related breach of trust actions for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the Reid factors governing relief from dismissal orders under Rule 37.14 and considered whether the delay was adequately explained, whether the missed deadlines were inadvertent, whether the motion was brought promptly, and whether reinstatement would prejudice the defendants.

The court found the litigation delay was extreme and largely attributable to repeated failures by the plaintiff’s former counsel to comply with court‑ordered timelines, coupled with insufficient oversight by the plaintiff.

Although the motion to set aside was brought promptly once the dismissal became known, the delay was not inadvertent and reinstatement would cause real prejudice given the nature of lien and trust claims.

Applying a contextual approach, the court concluded the balance favoured finality and refused to set aside the dismissal orders.

A general contractor moved to discharge a supplier’s construction lien, cancel or reduce the security posted to vacate the lien, and discharge a subcontractor’s separate lien.

The court held that the supplier’s lien was properly perfected despite the contractor not being named as a defendant, because the Construction Lien Act does not require joinder of a contractor lacking contractual privity with the lien claimant.

The court also refused to reduce the lien bond posted under s.44, finding the owner’s holdback liability exceeded the lien amount and therefore the full security remained appropriate.

The subcontractor consented to discharge of its lien if the bond was not reduced.

The court discharged the subcontractor’s lien but otherwise dismissed the motion.

A law firm sued its former client for unpaid legal fees of $427,891.57 following termination of a contingency fee retainer relating to a civil action for wrongful prosecution.

The defendant moved for summary judgment dismissing the claim, arguing the firm repudiated the retainer agreement by refusing to pursue a necessary appeal unless the client funded outside appellate counsel.

The court held that under the contingency fee agreement the firm was required to conduct “any and all proceedings,” which included the appeal, and could not characterize appellate counsel’s fees as disbursements payable by the client.

The refusal constituted a repudiatory breach of the retainer agreement, which the client accepted.

As a result, the client was discharged from any obligation to pay fees or disbursements.