P.H. Howden

Following an application concerning enforcement of a municipal emergency order affecting the health and safety of an occupant of a residential building, the successful municipality sought costs.

The respondent had previously made a settlement offer that was rejected.

The court considered the factors governing costs, including success, reasonable value of the work performed, the settlement offer, and the expectations of the losing party.

Finding the respondent’s offer less favourable than the judgment obtained and noting that the applicant acted reasonably in withdrawing part of its claim, the court declined to depart from the usual rule that the unsuccessful party pays costs.

Costs were awarded to the applicant on a partial indemnity basis.

Following settlement of an application brought by a condominium corporation to enforce compliance with condominium rules and compel sale of a unit, the only remaining issue was costs.

The corporation sought full indemnity costs exceeding $59,000.

The court reviewed the factors under Rule 57.01 of the Rules of Civil Procedure and s.131 of the Courts of Justice Act, noting the respondent’s prolonged non-compliance with the condominium’s declaration, rules, and by-laws despite repeated warnings.

While recognizing that full indemnity costs were appropriate in condominium enforcement proceedings where owners’ misconduct forces litigation, the court reduced certain claimed fees as excessive.

The court fixed costs on a full indemnity basis at $48,692.09 and ordered that unpaid costs be added to the unit’s common expenses and secured as a lien under the Condominium Act.

The plaintiff brought a motion for default judgment in an action for malicious prosecution after the defendant reported him to police, resulting in criminal charges for mischief and dangerous driving.

The plaintiff was acquitted at trial and alleged the defendant knowingly made false statements to police that led to the prosecution.

Applying the four‑part test from Miazga v. Kvello Estate, the court held that the defendant initiated the prosecution, the proceedings terminated in the plaintiff’s favour, the defendant lacked a subjective belief in reasonable and probable grounds, and the prosecution was motivated by malice.

The court found that the defendant lied to police in anger and for an improper purpose related to a dispute arising from a gas station incident.

Default judgment was granted for the plaintiff for liquidated damages representing legal fees and additional rent expenses caused by the prosecution.

Certain respondents to an application brought a motion to vacate a Certificate of Pending Litigation registered against a property following a power of sale transaction.

The moving parties argued the applicants, as subordinate mortgagees, had no reasonable claim to an interest in land and that their remedy, if any wrongdoing occurred in the power of sale process, was in damages or an accounting.

The court applied the analytical framework for CPLs, including the requirement of a reasonable claim to an interest in land and the equitable considerations described in Dhunna.

The court concluded the allegations relating to an allegedly defective notice of sale, premature closing, or improper conduct in the sale process did not support a proprietary remedy.

Finding that damages were the appropriate remedy and that the prejudice of maintaining the CPL outweighed any prejudice to the applicants, the court ordered that the CPL be vacated.

The applicant brought a motion seeking an order for DNA testing to determine the paternity of a child.

The respondent opposed the motion and sought dismissal or, alternatively, disclosure of the applicant’s school and criminal records and an adjournment pending disclosure.

Applying ss. 4 and 10 of the Children’s Law Reform Act, the court held that requests for paternity testing should generally be granted unless the test would harm the child or the request is made in bad faith.

The court found no evidence of bad faith and held it was in the child’s best interests to determine parentage.

The motion for DNA testing was granted with conditions requiring the applicant to pay for the testing and to provide certain disclosure if paternity was confirmed.

The Attorney General of Ontario sought leave to appeal an interlocutory order dismissing a motion for the interim preservation of over $4 million under the Civil Remedies Act.

The funds were the proceeds of the sale of a commercial property previously housing an illegal marijuana grow operation and later leased to a company involved in a stock fraud scheme.

The court found no reason to doubt the correctness of the motion judge's finding that there were no reasonable grounds to believe the property was an instrument of unlawful activity.

Leave to appeal was denied.

The Crown appealed an acquittal on a charge of having care and control of a motor vehicle with a blood alcohol level exceeding 80 mg.

The trial judge had excluded breathalyzer evidence under s. 24(2) of the Charter after finding a breach of the accused’s s. 8 privacy rights arising from continuous video monitoring of a detention cell while the accused used the toilet.

The Crown argued the trial judge erred by finding a sufficient nexus between the Charter breach and the breath samples and by misapplying the Grant framework.

The court held that a causal connection was not required and that a sufficient temporal and contextual nexus existed between the breach and the obtaining of the breath samples.

Applying the Grant factors, the court concluded the exclusion of the evidence was justified and dismissed the Crown’s appeal.

A municipality sought confirmation of an emergency order issued under s. 15.7(1) of the Building Code Act after a municipal law enforcement officer discovered an apartment in extreme unsanitary condition posing a potential health risk to occupants and others in the building.

The municipality arranged for emergency cleaning and sought to recover remediation costs, administrative fees, and legal expenses from the property owner by adding the amount to the tax roll.

The owner argued the tenant should be responsible, the emergency designation was unreasonable, and the cleanup costs were excessive.

The court confirmed the emergency order and held the owner responsible for remediation costs relating to the property condition.

However, the court modified the recoverable amount by removing expenses related to cleaning the tenant’s personal belongings and reserved decision on administrative fees and legal costs.

In a family law motion concerning parenting time, the father sought a regular access schedule with the child while the mother preferred a flexible arrangement dependent on the child’s willingness to visit.

The court considered the child’s participation in a behavioural therapy program addressing oppositional defiance and anxiety disorders and the ongoing involvement of the Office of the Children’s Lawyer.

The judge concluded that leaving access entirely dependent on the child’s choice was inappropriate.

An interim structured access schedule was ordered, with expanded overnight access contingent on the father’s participation in the child’s therapy program and subject to the therapist’s recommendation.

The order was to remain in force pending the Office of the Children’s Lawyer report and further court direction.

The plaintiff assignee of a credit card receivable brought a motion for summary judgment to recover an outstanding balance exceeding $40,000 arising from a MasterCard account originally issued by MBNA.

The defendant argued the account was used only for corporate purposes and that he acted solely as an officer of a company, asserting that liability should attach to the corporation rather than him personally.

The court held that the defendant personally opened and activated the credit card account, received statements for several years, and never disputed personal liability until the motion.

Applying s. 68 of the Consumer Protection Act and Rule 20.04 of the Rules of Civil Procedure, the court found no genuine issue requiring a trial and rejected the defendant’s credibility.

Summary judgment was granted in favour of the plaintiff for the amount claimed plus prejudgment interest.

The plaintiff brought a wrongful dismissal action after being terminated following an argument with his employer regarding entitlement to statutory holiday pay.

The employer alleged just cause based on the employee’s failure to use a time clock and excessive personal cell phone use.

The court held that these behaviours had been treated only as minor irritants and were never accompanied by escalating discipline or warnings that termination could follow.

The court also rejected the employer’s argument that the claim was barred by s. 97 of the Employment Standards Act because the evidence did not establish that a formal ESA complaint had been filed, and in any event the court exercised its inherent jurisdiction to extend the withdrawal period.

Applying the Bardal factors, the court determined that six months’ reasonable notice was appropriate and awarded damages after accounting for mitigation income.

The applicant sought advancement and indemnification of legal costs under an employment contract while facing disciplinary proceedings arising from an internal workplace investigation.

The court considered whether the matter could proceed by application under Rule 14.05 of the Rules of Civil Procedure and whether the contractual indemnification clause applied to costs incurred during the investigation stage.

The court held that the presumption of good faith applies and that the respondent had not established a strong prima facie case of dishonesty sufficient to trigger the contractual exclusion.

Interpreting the contract broadly, the court found that the internal investigation and related disciplinary process constituted a “proceeding” within the meaning of the indemnification clause.

The respondent was therefore obligated to advance and reimburse the applicant’s legal costs pending the outcome of arbitration.

The respondent mother brought a motion without notice seeking clarification and detailed wording of a prior order relating to child support and section 7 expenses.

The court found that the requested variation did not alter the substance of the earlier order but merely incorporated details already reflected in prior endorsements and orders.

The decision clarified that existing orders for child support and specific section 7 expenses continued for the purpose of calculating arrears and ongoing obligations until further order of the court.

The court emphasized that a payor cannot unilaterally cease section 7 payments if an expense appears to have ended; a court order is required to vary the obligation.

The prior order was varied to include detailed wording of the support obligations.

The plaintiff contractor sued the defendant homeowners for unpaid progress payments and extras on a home renovation project.

The defendants counterclaimed for the cost of completing the work, correcting deficiencies, and delay damages, alleging the plaintiff abandoned the job.

The court found that the defendants breached the contract by refusing to pay a progress invoice and failing to negotiate reasonably.

The court awarded the plaintiff $19,978, calculated by taking the balance owed on the contract and extras, less credits to the defendants for incomplete and deficient work.

The defendant brought a motion under Rule 21.01(b) of the Rules of Civil Procedure to strike the plaintiff’s statement of claim on the basis that it disclosed no reasonable cause of action and constituted an abuse of process.

The claim contained lengthy narrative allegations relating to historic family litigation and alleged defamation, privacy breaches, and Charter violations but failed to plead material facts necessary to support any recognized cause of action.

The court held that the pleading did not satisfy Rule 25.06(1) and failed to plead essential elements of defamation, including the allegedly defamatory words and compliance with statutory notice requirements.

Finding the action frivolous and vexatious in light of a long history of litigation between the parties, the court struck the statement of claim and dismissed the action.

The court further declared the plaintiff a vexatious litigant under s. 140(1)(c) of the Courts of Justice Act, requiring leave of the Superior Court before instituting further proceedings.

The plaintiffs brought a motion relating to the implementation and costs of a court-ordered construction project designed to remedy drainage and property impacts caused by alterations to neighbouring land.

The court reviewed affidavits from engineers addressing cost increases associated with implementing the approved design plan.

It accepted evidence that increased costs arose primarily from unforeseen soil conditions and confirmed that construction costs had been properly segregated from litigation costs as previously ordered.

The court found that the plaintiffs had demonstrated the reasons for the cost overruns and that the project had been completed despite interference by the defendant.

The motion was granted as requested, with payment directed to be held in trust for the contractor and engineer.

The moving party sought to set aside default family law orders for spousal support, child support, and equalization that were issued after his pleadings were struck for repeated disclosure failures and non‑compliance with court orders.

He argued the orders were based on incorrect assumptions about his income and relied on a later forensic accounting report indicating significantly lower earnings.

The court applied the principles governing motions to set aside default judgments, including timeliness, explanation for default, arguable merits, prejudice, and the interests of justice.

The court found the moving party had failed to provide a satisfactory explanation for years of delay and persistent non‑compliance with disclosure and support orders.

Considering the prejudice to the responding party and the integrity of the administration of justice, the motion was dismissed.

The appellant appealed a Small Claims Court judgment awarding the respondent contractor $10,000 following termination of a construction management contract during the pre-construction phase.

The appellant argued that he was not personally liable because he acted as an agent for the property owner and that the contractual termination payment constituted an unenforceable penalty clause.

The court held that the appellant signed the agreement as “owner” without written designation of agency and failed to prove he acted solely as an agent without personal liability.

The court further held that the termination payment was not unconscionable or extravagant and did not constitute an unenforceable penalty clause in light of modern jurisprudence favouring freedom of contract.

The appeal was dismissed.

The appellant appealed a conviction for refusing to provide a breath sample to an approved roadside screening device under s. 254(5) of the Criminal Code.

He argued that the trial judge improperly relied on his silence to reject his credibility and erred in finding the police had articulable cause to stop his vehicle for suspected distracted driving.

The Superior Court held that the trial judge impermissibly linked the appellant’s pre‑trial silence to credibility findings, contrary to established appellate authority.

The court also found that the police lacked objectively discernible facts establishing articulable cause for the traffic stop, rendering the detention arbitrary under s. 9 of the Charter.

Given the Charter breach and resulting investigative opportunity for unrelated offences, the court vacated the conviction and ordered a stay of proceedings.

The mother moved for an order reinstating or confirming prior child support orders after a settlement agreement failed.

The parties had agreed that the father would roll over his entire RRSP to the mother in full satisfaction of all support arrears and future support.

However, almost half of the RRSP was locked in and could not be transferred.

The mother agreed to keep the partial transfer in satisfaction of spousal support and child support arrears, but sought to maintain the ongoing child support orders.

The court found that because the consideration for the settlement failed, the release of future child support did not bind the mother.

The prior child support orders were confirmed to remain in force, and the father was ordered to pay a share of section 7 expenses for tutoring and karate.