Peter M. Callahan

Following a motion regarding undertakings and refusals where the RBC defendants were largely successful, they sought substantial indemnity costs of $10,350 due to the plaintiff's uncooperative conduct and delays.

The court declined to award substantial indemnity costs, finding the conduct did not reach the required threshold of abusive or reprehensible behaviour.

Partial indemnity costs were fixed at $7,000 inclusive of HST and disbursements, payable by the plaintiff.

In an action for malicious prosecution and negligence arising from fraud charges, the RBC defendants sought an order requiring the plaintiff's estate trustee to reattend personally to answer questions previously refused on discovery.

The plaintiff opposed, arguing the defendants improperly contacted the court and that written answers would suffice.

The court found the defendants' communication was proper and ordered the estate trustee to reattend at his own expense, as follow-up questions would be necessary and a personal attendance would be more efficient than written answers.

The parties brought cross-motions regarding undertakings and refusals from examinations for discovery in an action for malicious prosecution and negligence arising from a failed business loan application and subsequent fraud charges.

The court ordered the plaintiff to answer questions regarding the estate trustee's previous business dealings, prior fraud conviction, and the factual basis for the malicious prosecution claim.

The court also ordered the defendants to answer specific questions regarding the information provided to the RCMP, while upholding refusals for questions that were argumentative, irrelevant, or already answered.

The defendants were largely successful on the motion.

The moving party father sought an extension of time to file a notice of motion for leave to appeal a temporary order granting decision-making responsibility, primary residence, and child support to the respondent mother.

The father served his notice of motion outside the 15-day period required by the Rules of Civil Procedure.

The court applied the test for extending time and found that the father had not formed an intention to appeal within the relevant period, offered no explanation for the delay, and his proposed appeal lacked merit.

The motion for an extension of time was dismissed with costs awarded to the respondent on a partial indemnity basis.

The plaintiff's action was dismissed by an order of the Registrar.

The defendants brought a motion in writing to fix costs, seeking $42,740.56 on a substantial indemnity scale based on an unaccepted formal offer to settle.

Despite multiple extensions, the self-represented plaintiff failed to deliver responding materials.

The court found the defendants were completely successful and the offer met the requirements of Rule 49.10(1).

Costs were fixed at $36,000, reflecting partial indemnity up to the date of the offer and substantial indemnity thereafter.

The defendants brought a motion to remove the plaintiff's litigation guardian, arguing he was in a conflict of interest as an unsatisfied judgment creditor of the plaintiff.

The court found that the litigation guardian lacked the required indifference to the outcome of the litigation due to his status as a judgment creditor.

The motion was granted, the litigation guardian was removed, and the Public Guardian and Trustee was appointed in his place.

The appellant, David Joseph Lesko, appealed three aspects of a divorce order: an equalization payment to the respondent, Kelly Sue Lesko, based on her 50% interest in a pre-marriage property due to unjust enrichment; the determination of his income for support purposes; and the disallowance of his claim for credit against retroactive support for post-separation expenses.

The Court of Appeal dismissed the appeal on all grounds, upholding the trial judge's findings regarding unjust enrichment, income calculation, and the discretion to deny the appellant's late-claimed expenses.

The applicant brought a motion to have the net sale proceeds of two cottage properties paid to the Family Responsibility Office to satisfy approximately $480,000 in spousal support and costs arrears owed by the respondent.

One property was owned by the respondent personally, and the other by his closely-held corporation.

The court found that the respondent had not established a prima facie case to vary his support obligations and ordered the proceeds of his personal property released.

Furthermore, the court applied the test for piercing the corporate veil, finding that the respondent exercised complete control over the corporation and used it to unjustly deprive the applicant of her support entitlements.

The court ordered the proceeds from both properties to be paid to the applicant.

The applicant, through her litigation guardians, sought a declaration that her late husband breached his fiduciary duty while acting as her power of attorney for property.

The husband had severed the joint tenancy on their home, sold it, and transferred $500,000 of the proceeds into an account for his sole benefit, leaving nothing for the applicant in his will.

The court found that the husband breached his fiduciary duty by using the funds for his own benefit without the incapable applicant's consent.

The court ordered the husband's estate to pay $253,431.95 in restitution and interest to the applicant's estate.

The plaintiff moved for default judgment against the defendant website owner for defamation.

The alleged defamatory statements appeared in an English translation of a Chinese article, generated automatically when a user clicked an embedded Google Translate widget.

The court dismissed the action, holding that providing a free, automated translation widget does not constitute 'publication' of the translated text by the website owner, as the acts merely transmit information in a content-neutral way without expression, adoption, or endorsement.

The payor brought a motion under Rule 25(19) of the Family Law Rules to set aside a Final Default Order that fixed his spousal support arrears at over $480,000 and ordered incarceration in the event of future default.

The payor argued he did not receive adequate notice of the remote default hearing and was unable to attend due to age and health concerns amid the COVID-19 pandemic.

The court applied the Mountain View Farms factors and found that the payor had received adequate notice, simply chose to ignore the proceeding, and failed to establish an arguable case on the merits regarding his inability to pay.

The motion was dismissed.

The plaintiff sought declarations of interest and sale of four properties, alleging a "Property Venture" agreement.

The defendants denied this, asserting a "Commission Agreement" where property advances were compensation for business referrals.

The court found a 20% commission agreement existed, not the "Property Venture." It dismissed the plaintiff's claims for interest and rectification of title on two properties (Aloma and 2580 Property) and denied the sale of the Olive Property (due to corporate ownership not being a party).

It ordered the sale of the 2824 Property, where the plaintiff already held 50% title.

The defendant's counterclaim for damages based on a later "May 2017 Note" was also dismissed due to lack of evidence of referred work and uncertainty of terms.

The applicant brought a motion to transfer the respondent's motion to change spousal support from Hamilton to Milton, where a related proceeding between the parties was already ongoing.

The respondent had previously commenced and withdrawn a similar motion in Milton, incurring significant unpaid costs, before starting fresh in Hamilton.

The court granted the transfer, finding it substantially more convenient and necessary to avoid a multiplicity of proceedings, inconsistent findings, and the waste of judicial resources, particularly given the respondent's history of litigation misconduct.

The respondent brought a motion to enforce a settlement agreement regarding the sale of a property, "Robin Hill Farm." The applicant argued that no binding agreement was reached and that his former counsel lacked authority to settle on his behalf.

The court found that the parties had agreed to all essential terms of the settlement through counsel's correspondence and that the applicant's former solicitor had ostensible authority to bind him.

The motion was granted, enforcing the settlement agreement.

Antonio, an estate trustee and beneficiary, sought to extend timelines to exercise an option to purchase an estate property, citing COVID-19 related impediments.

The co-estate trustees (applicants) opposed and brought a cross-motion to proceed with the sale of the property and for Antonio to pay occupation rent.

The court dismissed Antonio's motion, finding insufficient evidence that COVID-19 genuinely prevented him from complying with the prior consent order.

The court granted the applicants' request to list and sell the house without Antonio's involvement due to his conflict of interest and ordered Antonio to pay occupation rent of $2,000 per month to the estate.

The applicants' request for further disclosure orders against Antonio was dismissed, as some disclosure had been made, and any deficiencies would require a separate motion.

The plaintiff brought a motion to set aside a Registrar's Order dismissing her action for delay.

The action, claiming $12,000,000 in damages arising from a border crossing incident, was dismissed after a series of miscommunications and missed deadlines regarding a discovery plan.

The defendants opposed the motion, arguing prejudice because the plaintiff had recently been diagnosed with dementia and could not be examined on her claims for emotional distress.

The court applied the four-part test for setting aside a dismissal order and found that the delay was adequately explained by inadvertence and missteps by multiple parties.

The court concluded that the prejudice to the plaintiff of losing her entire action outweighed the prejudice to the defendants regarding the examination, and set aside the dismissal order.

Appeal from a trial judge's costs order denying costs to the successful defendant in a will challenge.

The defendant's father left his entire estate to her.

The plaintiffs (her brothers) sued to set aside the will, alleging suspicious circumstances, lack of testamentary capacity, and undue influence.

The trial judge dismissed all claims as statute-barred under the Limitations Act, 2002, and alternatively found the will valid based on established testamentary capacity and absence of undue influence.

Despite the defendant's complete success, the trial judge awarded no costs, citing the defendant's misleading evidence regarding conversations with her father's doctor.

The Court of Appeal found the trial judge erred in law by focusing almost exclusively on one aspect of misleading evidence while ignoring the defendant's complete success on all substantive issues and failing to consider relevant factors such as settlement offers and trial complexity.

The creditor, RZCD Law Firm LLP, brought a motion seeking to enforce a notice of garnishment against the garnishee, IBM Canada Ltd., for an outstanding debt owed by the debtor, Victor Brian Choo-Shee-Nam.

The creditor asserted that the garnishee failed to remit payments as directed and did not serve a garnishee's statement.

The garnishee argued that the original notice of garnishment did not apply to the debtor's subsequent period of re-employment and that garnishment proceedings were stayed by a consumer proposal.

The court dismissed the creditor's motion, finding that the garnishee was not obligated to file a garnishee's statement within 10 days as it initially remitted payments, nor was it required to provide notification when the debtor's employment ended.

Crucially, the court held that the original notice of garnishment did not apply to the debtor's re-employment period due to Rule 60.08(13)(b), which excludes debts arising from employment commencing after the notice is served.

In this matrimonial appeal, the husband challenged a motion judge's order allowing the wife to amend her notice of motion to request a set-off of costs and interest owed by the wife against accumulated spousal support and costs owed by the husband.

The motion judge set off $331,533.54 against $479,130.91, resulting in a net amount of $147,597.37 owing from the husband to the wife.

The husband argued that set-off was not available in law and usurped the jurisdiction of the Family Responsibility Office.

The Court of Appeal dismissed the appeal, finding that the amendment was appropriately allowed under the Family Law Rules and that set-off was available under section 111 of the Courts of Justice Act.

This endorsement addresses a motion brought by the applicant, Delia Joan Berta, seeking to compel further financial disclosure from the respondent, Raymond Louis Berta, in the context of his motion to change a final spousal support order.

The court ordered the respondent to produce various financial documents, including bank statements, credit card statements, line of credit statements, loan applications and rejection notices, corporate minute books for specific entities, and proof of car loan payoff.

However, the court declined to order further disclosure related to the respondent's expert witness, finding no reasonable grounds to suspect interference with the expert's independence, as per the test in Moore v. Getahun.

The motion was allowed in part, with no costs ordered due to divided success.