P.H. Howden

Following a procedural motion in a personal injury action involving requests to amend the statement of claim, conduct a premises inspection by an expert, compel document production, and examine two witnesses before trial, the court addressed the issue of costs.

The plaintiff had suffered a head injury on the defendants’ property and had limited memory of the incident, which contributed to disputes over access to factual information.

The court found the motion was conducted efficiently and professionally by counsel.

Applying the usual rule that costs follow the event, the court awarded the successful moving party partial indemnity costs.

The appellant appealed a decision of the Consent and Capacity Board under the Mental Health Act concerning ongoing involuntary detention at a maximum security psychiatric facility.

The appeal raised issues regarding the standard of review, the application of the statutory criteria for detention, and alleged breaches of Charter rights under ss. 7, 9, 11(h), and 12.

During the hearing, the Court of Appeal released its decision in P.S. v. Ontario, which addressed the constitutionality of long-term involuntary committals and the limited powers of the Consent and Capacity Board.

The court held that the appellate ruling fundamentally altered the legal landscape and rendered the issues raised in the appeal moot, as the appellant fell within the class of long-term involuntary patients affected by the constitutional findings in that decision.

The defendant brought a motion to set aside the noting of pleadings closed in a motor vehicle accident subrogated claim brought by an insurer under s. 258(1) of the Insurance Act.

The court considered whether the defendant had been properly served with the statement of claim and whether an arguable defence existed.

Evidence showed the claim had been left with a person who no longer resided in the same household as the defendant and mailed to an address that was not his place of residence, contrary to Rule 16.03(5) of the Rules of Civil Procedure.

The court found that valid service had never been effected and that denying the defendant the opportunity to defend would breach natural justice given the size of the judgment and the existence of a potential defence.

The noting in default was set aside and the defendant was granted leave to deliver a statement of defence.

The appellant appealed his convictions for assault and threatening death, arguing the trial judge misapprehended evidence, applied unequal scrutiny to defence and Crown evidence, and misused his criminal record.

The Superior Court of Justice agreed, finding the trial judge erred in law by using the appellant's record of prior assaults to assess credibility without limiting instructions, effectively using it as propensity evidence.

The court also found the trial judge misapprehended evidence regarding a social media post and unfairly scrutinized defence witnesses.

The appeal was allowed, convictions vacated, and a new trial ordered.

Following a jury verdict awarding the plaintiff $108,000 for injuries sustained in a motor vehicle collision, the defendants brought a threshold motion under the Insurance Act.

The defendants argued the plaintiff failed to prove a permanent serious impairment of an important physical function.

The court preferred the evidence of the plaintiff's chronic pain expert over the defence's orthopaedic surgeon, finding the plaintiff suffered a permanent and serious impairment that prevented her from continuing her employment as an exotic dancer.

The defendants' motion was dismissed.

The moving party sought partial summary judgment rescinding a franchise agreement under s. 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000, alleging the franchisor failed to provide proper disclosure.

The respondent argued the transaction fell within the resale exemption under s. 5(7)(a)(iv), asserting the franchise was granted by an existing franchisee and not effected by or through the franchisor.

The court held that the franchisor was actively involved in effecting the grant by approving the franchisee, requiring training, structuring the lease and security arrangements, and setting the terms of the new franchise agreement.

Because the franchisor played a substantive role beyond merely consenting to the transfer, the disclosure exemption did not apply.

The franchise agreement was therefore rescinded pursuant to s. 6(2) of the Act.

Following an earlier order setting aside a registrar’s dismissal of the plaintiffs’ action on terms, the court determined the costs payable for the motion.

Although the plaintiffs were granted relief reinstating the action, the court ordered them to pay the defendants’ costs due to prolonged delay and neglect in prosecuting the claim.

The defendants sought more than $8,000 in fees and disbursements.

The court found the claim reflected excessive lawyering and unreasonable time spent on a relatively straightforward motion.

Applying the partial indemnity approach and the principle that costs must be fair and reasonable rather than equal to actual legal fees, the court substantially reduced the amount payable.

Application concerning estate administration disputes between co-estate trustees relating to compensation, passing of accounts, and division of household contents of the deceased’s estate.

After addressing trustee compensation in a prior endorsement, the court determined the final distribution of contested household items between the two beneficiaries.

The court adopted a fairness-based approach, considering relationships to specific items and aiming for rough equality between the parties.

Detailed schedules allocated specific items to each party and vested ownership accordingly.

The division was declared final and items not already in possession were ordered transferred forthwith.

The appellant appealed convictions for sexual interference and sexual assault arising from an incident where he showered with a child after a sand fight at a campground.

The appellant argued the verdict was unreasonable and that the trial judge failed to properly apply the analysis from R. v. W.(D.) when assessing conflicting evidence.

The Superior Court found the trial judge improperly equated disbelief of the accused’s testimony with proof of guilt and failed to conduct the full three‑step W.D. analysis regarding the essential elements of the offences, including the sexual purpose of any touching.

The court also found the evidence of a sexual component to the touching was insufficient and that the verdict relied on speculation rather than proof beyond a reasonable doubt.

The convictions were therefore set aside and acquittals entered.

The plaintiffs moved to set aside a registrar’s dismissal order issued after the action had remained dormant for several years following discovery.

They argued they never received the status notice or dismissal notice and explained the delay by financial hardship, business failures, and personal obligations while self‑represented.

The court applied the contextual approach endorsed in appellate authority governing motions to set aside dismissals for delay, considering explanation for delay, inadvertence, promptness of the motion, and prejudice.

Although the plaintiffs’ prolonged inactivity and failure to prosecute the action weighed heavily against them, the absence of evidence that notice of the status notice or dismissal order had been provided raised concerns of procedural fairness.

Balancing the interests of finality with the preference for adjudicating disputes on their merits, the court set aside the registrar’s dismissal order on strict terms requiring immediate procedural steps and costs payable to the defendants.

The plaintiffs brought a motion seeking authorization to enter the defendants’ property to remediate a failing retaining wall previously constructed pursuant to court orders arising from a nuisance dispute involving runoff and soil movement between adjacent properties.

Applying the injunctive relief framework from R.J.R. – MacDonald Inc. v. Canada (Att.-Gen.), the court found a serious issue regarding the plaintiffs’ right to prevent soil and debris flowing from the defendants’ property, irreparable harm if the wall collapsed, and that the balance of convenience favoured the plaintiffs.

Although the current structural failure was not directly caused by the defendants, the court held they remained ultimately responsible due to their prior alteration of land elevation and delays in remedying the problem.

The court authorized the plaintiffs to undertake remedial work and ordered the defendants to pay outstanding amounts owed under a prior order, with further provisions governing engineering oversight if warranty coverage failed.

The Town of Georgina brought a motion for an interim restraining order to prevent the respondents from dumping fill on a former pit property without a permit under the Town's Site Alteration By-law.

The respondents argued they were importing fill to rehabilitate the land pursuant to a site plan under the Aggregate Resources Act.

The court granted the interim restraining order, finding a serious issue to be tried, no irreparable harm to the respondents if delayed, and that the balance of convenience favoured the Town and the province, as the corporate owner of the land had been dissolved and the property was vested in the Crown.

The father brought a motion to change a child support order, seeking to reduce table support for his adult daughter who was attending university away from home for eight months of the year, and to fix his contribution to her section 7 expenses.

The mother opposed, arguing that full table support should continue as she maintained a home for the daughter's visits and study breaks, and sought an increase in support based on the father's higher income.

The court dismissed the father's request to reduce table support, finding the table approach was not inappropriate given the family's pre-separation lifestyle and the mother's ongoing household expenses.

The court increased the table support to reflect the father's current income and apportioned the section 7 expenses 67% to the father and 33% to the mother.

In a family law motion, the respondent sought a preservation order over the proceeds of sale of the matrimonial home pending determination of equalization.

The moving party argued that the funds should remain secured because the other spouse would likely owe a significant equalization payment and the property represented the primary realizable asset.

The court found a strong prima facie case that an equalization payment would be owed and that the inheritance used toward the matrimonial home likely lost its excluded character.

However, the court permitted the purchase of a replacement property provided the equity from the matrimonial home effectively transferred to the new property and remained available as security.

A charge was ordered against the new property under the Family Law Act to preserve the responding party’s equalization claim.

The applicant father brought an urgent motion seeking to alter a prior order that required the child to be returned to the mother’s care and requesting that the child remain temporarily in his custody with supervised access to the mother.

The court reviewed newly disclosed materials, including information from the Children’s Aid Society raising concerns about the mother’s mental health, instability regarding parenting responsibilities, and risk of emotional harm to the child.

Although the court noted problematic past behaviour by both parents, evidence indicated a more stable environment for the child while residing with the father.

Applying the best interests of the child principle, the court concluded the child should remain in the father’s care pending further review.

Temporary sole care and control was granted to the father, with the mother limited to supervised access until the adjourned hearing date.

The moving party sought an order prohibiting the primary custodial parent from changing the children’s school and requested modification of access arrangements to align with those of the other children.

The responding parent sought an adjournment after receiving service only four business days before the hearing, arguing that additional time was required to prepare responding evidence and that the motion effectively sought to alter existing access provisions.

The court held that the primary custodial parent’s decision regarding schooling is entitled to significant respect and that a proper evidentiary record was required before intervening.

Finding no urgency and no evidence of harm from the proposed school change, the court granted an adjournment to allow the responding parent to file material.

Following the dismissal of a motion for leave to appeal, the successful responding parties sought costs.

They submitted a joint draft bill of costs reflecting fees, disbursements, and HST, with a reduction applied for duplication of work between two law firms.

The court found the respondents entitled to costs on a partial indemnity basis and held that the draft bill appropriately reflected the Rule 57.01 factors, including the complexity of the proceeding and late amendments to the grounds of appeal.

The moving party accepted the claimed amount but requested a deduction to account for an outstanding prior costs order.

The court fixed costs accordingly after deducting the outstanding amount.

Following a wrongful dismissal trial where the plaintiff recovered $12,400, the court addressed costs and the scope of pre‑judgment interest.

The defendant argued no costs should be awarded because the action should have proceeded under the simplified procedure and had languished for years without progress.

The court held it was unreasonable for the plaintiff to continue under the ordinary procedure given the value of the claim, but nevertheless exercised its discretion to award partial indemnity costs because the plaintiff was the successful party and had been dismissed without notice.

Costs were reduced to reflect the simplified procedure framework and unnecessary steps such as discoveries.

Pre‑judgment interest was limited to periods when the action was actively pursued.

The plaintiffs purchased lots in an industrial subdivision and sued the municipality for negligent misrepresentation, alleging they relied on a letter from the building director indicating building permits would be available.

The plaintiffs claimed the letter failed to disclose that the Ministry of the Environment required a section 45 approval before permits could issue.

The Superior Court of Justice dismissed the action, finding that the letter was not misleading and that the plaintiffs failed to read the subdivision agreement, which explicitly stated the requirement for environmental approval.

The court also held that the action was statute-barred as the plaintiffs ought to have discovered the material facts more than six years before commencing the lawsuit.

In a family law proceeding concerning enforcement of child support, the court reviewed the payor’s financial circumstances and the status of arrears recorded by the Family Responsibility Office.

Evidence included tax assessments demonstrating a significant decline in the payor’s income and medical documentation indicating physical impairment.

The court noted that child support obligations for the parties’ daughters had previously been terminated in earlier orders.

In the circumstances, the court cancelled the outstanding child support arrears but declined to make any finding that the payor was entitled to reimbursement for alleged overpayments.