Patrick J. Boucher

The applicant, Rosemary Maki, initiated an application in Toronto seeking a declaration of her father's incapacity, the setting aside of his Powers of Attorney, and her appointment as guardian.

The respondent, Lucien Cammaert, brought a motion to transfer the application to Sudbury.

The court, applying Rule 13.02(2)(b) of the Rules of Civil Procedure, considered factors such as where the events occurred, where the subject matter was located, and the convenience of parties and witnesses.

Given that the Powers of Attorney were executed in Espanola (Sudbury District), the property is located there, and most parties and witnesses reside in the Sudbury District, the court found that Sudbury was a "significantly better" venue.

The motion to transfer the proceedings to Sudbury was granted.

The plaintiff in a patent infringement action brought a motion to compel the defendants to produce additional financial information and records relating to the use of the allegedly infringing mine doors, and to make officers available for cross-examination.

The court dismissed the motion, finding that the statement of claim did not plead an accounting of profits against the co-defendant purchaser, and that the request against the manufacturer defendant was premature as the plaintiff had not yet conducted examinations for discovery to identify specific missing documents.

The garnishee, Vale Canada Limited, brought a motion to dismiss garnishment proceedings initiated by the plaintiffs on a "with prejudice" basis.

The plaintiffs consented to a "without prejudice" dismissal.

The court found that the garnishment proceedings had been ongoing for approximately 23 years, during which the plaintiffs consistently failed to comply with court orders, including disclosure orders, an order for security for costs ($85,000), and a previous costs order ($6,653.65).

Citing the plaintiffs' significant and unexplained delays, their flouting of court orders, and the abuse of process, the court granted Vale's motion, dismissing the garnishment proceedings with prejudice.

In matrimonial proceedings, the court held a focused hearing to determine the beneficial ownership of a property gratuitously transferred by the respondent to himself and his adult son as joint tenants.

The applicant argued for a resulting trust, while the respondent contended it was a gift.

The court found that the respondent failed to provide clear, convincing, and cogent evidence to rebut the presumption of resulting trust, concluding that the respondent remained the beneficial owner of his son's one-half interest in the property.

The applicant moved to set aside an order abandoning her spousal support claim, which was made during a settlement conference.

She alleged that her former counsel pressured her due to his unpreparedness and that her anxiety disorder impacted her decision.

The respondent opposed, arguing the applicant failed to establish grounds to set aside the order.

The court dismissed the motion, finding no evidence of fraud by counsel and that the applicant did not meet the preconditions under Family Law Rules 25(19) or the residual power test from Mountain View Farms.

The court emphasized the importance of finality in consent orders and the integrity of the administration of justice.

The plaintiff moved for leave to strike the jury notice, to amend her claim to bring it within the simplified procedure, and to have the action tried pursuant to the simplified procedure.

The defendant opposed the relief.

The court dismissed the plaintiff's motion, finding that the grounds for the request pre-existed the filing of the trial record, meaning there was no substantial or unexpected change in circumstances to warrant granting leave.

Furthermore, the court held that striking the jury notice would deprive the defendant of a substantive statutory right without providing a significant benefit to the plaintiff, as trial delays would likely occur regardless of the trial format.

The applicant, Fay Smith, moved to set aside minutes of settlement and a full and final release, alleging she was coerced under duress by her former counsel and Crown counsel.

The court applied the two-part test for duress from *Kawartha Capital Corp. v. 1723766 Ontario Limited*, requiring proof of pressure leaving no choice and illegitimate pressure.

The court found that the applicant received extensive and thoughtful independent legal advice throughout the litigation and mediation process.

The pressure experienced was deemed typical of litigation and did not meet the threshold for economic duress.

The court also found no evidence of collusion between counsel to cover up alleged Ministry malfeasance.

The applicant's motions were dismissed.

The plaintiff alleged battery by the defendant, seeking $250,000 in damages for personal injuries.

The defendant denied the assault and counterclaimed for $200,000, alleging malicious prosecution, intentional infliction of mental suffering, and assault.

The court found the defendant committed battery by forcefully taking a paper from the plaintiff, awarding nominal non-pecuniary damages of $750.00.

The plaintiff's claims for special and punitive damages were dismissed due to lack of evidence.

The defendant's counterclaims were also dismissed, as the torts were not established or lacked supporting evidence.

The defendants, George and Huguette Blechta, brought a motion for summary judgment to dismiss an action for damages brought by James and Margherite Derro.

The action stemmed from James Derro's fall on the Blechtas' icy driveway, with Margherite Derro claiming under the Family Law Act.

The court applied the two-stage summary judgment test, finding no genuine issue requiring a trial.

It concluded that the Blechtas had acted reasonably in their driveway maintenance and that James Derro had willingly assumed the risks by exiting his truck on the un-sanded driveway.

The motion was granted, and the action was dismissed.

The defendants, Sudbury Trail Plan Association (STPA) and Shelley Talevi, brought motions seeking leave to bring further motions, an order compelling the plaintiff Gaetan Lamothe to undergo four independent medical assessments, and leave to deliver late expert reports.

The plaintiffs opposed these motions.

The court dismissed all motions, finding that the defendants failed to provide a reasonable explanation for their significant delay in seeking the assessments and filing reports, which occurred almost four years after the plaintiffs' expert reports and after two fixed trial dates had been set.

The court determined that the alleged "substantial or unexpected changes" in the plaintiff's condition were not sufficient to justify the delay and that granting the motions would cause undue prejudice to the plaintiffs by necessitating an adjournment of the lengthy jury trial, leading to lost pre-trial income and statutory deductible indexation.

The defendant moved for summary judgment to dismiss a medical negligence claim, arguing it was brought outside the two-year limitation period.

The plaintiff contended that the claim was not discovered until an expert medical opinion was obtained.

The court found that the plaintiff had actual knowledge of the material facts supporting a plausible inference of liability as early as mid-February 2013, and no later than October 2013, well before the claim was issued in August 2017.

The expert opinion merely addressed the merits, not the discoverability.

The motion was granted, and the claims were dismissed.

EBC Inc. brought an application seeking declarations and payment from the City of Ottawa for unpaid holdback funds, a contract credit, and interest on allegedly late payments and arbitration awards related to a design-build contract for the Ottawa Art Gallery expansion and Arts Court redevelopment.

The court dismissed the claims for holdback funds, finding the application statute-barred by the Limitations Act, 2002, and that EBC failed to use the proper dispute resolution process.

The claim for the contract credit was also dismissed, as the court found the Amendment Agreement was a valid Change Order and the City's deduction was lawful.

The court granted a partial claim for interest, finding interest was payable on a Phase 1 arbitration award as per the contract, but dismissed interest claims related to settlements or invoices paid promptly after completion.

This decision addresses costs for two prior motions in a family law matter.

The court found that success was divided on both the initial motions concerning income, child, and spousal support, and a subsequent motion to correct mathematical errors.

Neither party's offer to settle met the criteria for special costs under the Family Law Rules.

The court also considered the parties' conduct, noting that both contributed to the complexity of the litigation.

Ultimately, the court ordered that each party bear their own costs for the motions.

The garnishee, Vale Canada Limited, brought a motion for security for costs against the plaintiffs in a long-standing garnishment proceeding.

The court found that Vale established a prima facie case for security for costs, as the estate plaintiff was a nominal plaintiff and there was good reason to believe the corporate plaintiffs had insufficient assets in Ontario.

The court also found good reason to believe the garnishment proceeding was frivolous and vexatious.

The plaintiffs failed to provide evidence of sufficient assets or impecuniosity.

The motion was granted, and the plaintiffs were ordered to pay $85,000 into court as security for costs.

The applicant brought a motion under Rule 25(19)(b) of the Family Law Rules to correct alleged mathematical errors in the court's previous decision regarding child and spousal support.

The court found that while it did not intend to gross-up the pre-tax income as the applicant suggested, it did make an inputting error in the DivorceMate software.

The court exercised its discretion to correct the error, resulting in adjusted monthly child support of $1,719 and spousal support of $2,478.

The parties brought cross-motions to determine interim child and spousal support, requiring the court to determine their respective incomes.

The respondent's income was set at $154,350 based on a three-year average of pre-tax corporate income available to him, rather than his most recent tax return.

The applicant's income was set at $40,468, which included her employment income and imputed rental income, but the court declined to impute further income for underemployment.

The court ordered interim child support of $1,692 per month and spousal support of $2,170 per month, effective November 2021.

The Integrity Commissioner applied for a determination that a municipal councillor contravened the Municipal Conflict of Interest Act by failing to declare a pecuniary interest and voting on a matter involving her own remuneration suspension.

The councillor admitted the contravention but argued for a lesser penalty, citing officially induced error and bias.

The court rejected these defences, finding the councillor's actions were not mere inadvertence given her experience and prior sanctions.

The court declared the councillor's seat vacant and issued a reprimand.

The applicant sought an interim order for sole decision-making, reduced parenting time for the respondent, and child support.

The respondent opposed the changes, arguing the existing 2-2-3 shared parenting schedule, in place for three years, was in the children's best interests.

The court dismissed the applicant's motion, finding that the long-standing status quo was working well for the children, who were thriving academically and showed no negative impact from past parental conflicts.

The court also dismissed the child support claim without prejudice, noting insufficient submissions on the increased costs of shared parenting under the Federal Child Support Guidelines.

The appellant appealed her conviction for operating a motor vehicle with excess blood alcohol, challenging the trial judge's decision to admit breath test evidence under s.24(2) of the Charter and the admissibility of a qualified technician's certificate.

The appellant argued errors in assessing the seriousness and impact of Charter breaches (s.8, 9, 10(b), and a newly raised s.10(a) issue) and in balancing the factors for exclusion.

She also argued that the certificate contained inadmissible hearsay regarding the alcohol standard solution.

The court dismissed the appeal, upholding the trial judge's s.24(2) analysis, finding no error in the assessment of the seriousness or impact of the breaches, nor in the balancing of factors.

The court refused to allow the appellant to raise the s.10(a) and hearsay issues for the first time on appeal, citing an insufficient evidentiary record, presumed tactical omission, and no resulting miscarriage of justice.

The Crown sought summary dismissal of five constitutional questions (NCQs) raised by Indigenous respondents charged with various cannabis offences.

The respondents claimed their lands were not part of Canada, that cannabis laws infringed their traditional rights and economic well-being, and that the laws were part of genocide/apartheid, and that the Crown failed in its duty to consult.

The court summarily dismissed four of the five NCQs, finding them non-justiciable or without reasonable prospect of success (sovereignty, genocide/apartheid, economic well-being).

The fifth NCQ, regarding traditional use and trade of cannabis/hemp under s. 35 of the Charter, was not summarily dismissed, but the court ordered further case management due to delays in expert reports.