Philip Victor Hiebert

The applicant, a real estate acquisition company, sought a bankruptcy order against the respondent, a construction company that was its sole client.

The respondent disputed the application, arguing it was not indebted to the applicant and that the application was brought for improper purposes.

The court found that the applicant had established both elements of the bankruptcy test: a debt exceeding $1,000 and an act of bankruptcy within six months of filing.

The court rejected the respondent's arguments regarding set-off claims and improper purpose, finding that the respondent's director had mishandled corporate funds and that the respondent was unable to pay its creditors generally.

A bankruptcy order was granted and a trustee was appointed.

This is a costs endorsement following the dismissal of an application to enforce an oral agreement and the granting of an application for partition and sale of property.

The successful parties (Bruno Rosso, Nancy Rosso, and Salvatore Rosso) sought costs awards.

The court awarded costs on a substantial indemnity scale to Bruno and Nancy, and on a partial indemnity scale to Salvatore.

The court considered factors including the complete success of the parties, the complexity of the issues, the proportionality of costs to the property value, the reasonableness of counsel fees and time spent, and the conduct of the unsuccessful party during litigation.

The court considered two competing applications between brothers who jointly owned a triplex property.

Domenic Rosso sought to enforce an alleged oral agreement for the purchase of Bruno Rosso’s one-third interest in the property, while Bruno Rosso sought partition and sale of the property.

The court found that there was no enforceable oral contract due to lack of agreement on essential terms, and that even if there had been, it would have been unenforceable under the Statute of Frauds and not saved by part performance.

The court granted Bruno’s application for partition and sale, and ordered an accounting.

This decision addresses a motion by Mr. Diab for leave to issue a writ of possession against Ms. Poka to enforce prior court orders requiring her to vacate the matrimonial home.

The court reviews the history of orders regarding the sale and possession of the home, the parties' compliance, and the need for further orders to ensure the closing of the sale.

The court finds Ms. Poka is not currently in breach of the sale and vacate orders but makes further orders to ensure compliance and the successful closing of the sale, including surrender of keys, removal of belongings, and financial disclosure.

The case involved a dispute between brothers Domenic, Salvatore, and Bruno Rosso, and their wives, concerning minutes of settlement.

Bruno moved to enforce the minutes, alleging Domenic breached them.

Domenic cross-moved to set aside the minutes, claiming duress, fraudulent misrepresentation, or improvidence, and also arguing they were null and void under a specific contractual clause.

The court found that Domenic and Carmelina (Domenic's wife and a "Settling Party") validly exercised their contractual right under the minutes of settlement to declare them null and void due to an uncured default.

The court dismissed Bruno's motion to enforce and granted Domenic's cross-motion to set aside the minutes of settlement on this contractual basis, rejecting Domenic's other claims of duress, misrepresentation, and improvidence due to lack of credible evidence.

The defendants moved to set aside a noting of default entered by the plaintiff.

The plaintiff opposed and brought a cross-motion for the recovery of personal property.

The court found it unreasonable for the plaintiff to have noted the defendants in default without prior notice, given that the plaintiff's counsel knew the defendants were in the process of retaining litigation counsel.

The court also found the defendants' delay in responding to be reasonable and that they had an arguable defence.

Consequently, the noting of default against both defendants was set aside.

The court further exercised its discretion to stay the plaintiff's action pending the adjudication of a related bankruptcy application, deeming it the most efficient way to resolve accounting issues between the parties.

The defendants were awarded substantial indemnity costs.

This appeal and cross-appeal arose from a landlord's application for a writ of possession and related disputes over a security deposit and roof repair costs.

The Court of Appeal allowed both the landlord's appeal regarding the interpretation of a lease clause concerning the return of a security deposit and the tenant's cross-appeal concerning the amortization of roof replacement costs.

The court found the application judge erred in interpreting the deposit clause, as the deposit was only returnable if the tenant was not in default, which they were.

The court also found the application judge failed to address the tenant's argument that the roof replacement was a capital expense to be amortized over its useful life, not just two years.

The relevant paragraphs of the lower court's judgment were struck, and no costs were awarded due to mixed success.

M.H. was charged with common assault, uttering a death threat, sexual assault, and unlawful confinement stemming from an incident where he allegedly returned to the complainant A.A.'s apartment after consensual group sex, confined her, assaulted her, threatened her, and sexually assaulted her.

The court found A.A. generally credible despite inconsistencies and delayed reporting, and found I.K., a defence witness, not credible due to bias.

M.H.'s post-offence conduct (deleting contacts) was considered evidence of consciousness of guilt.

M.H. was found guilty of common assault, sexual assault, and unlawful confinement, but acquitted of uttering a death threat due to conflicting evidence regarding the nature of the threat.

The Crown applied to admit expert opinion evidence from a dog track handler (Sgt. deRuiter) and a forensic toxicologist (Dr. Langille) in a criminal trial for impaired driving causing bodily harm and fail to remain.

The respondent objected to the scope and admissibility of the expert evidence.

The court applied the two-step inquiry for expert evidence admissibility, considering the Mohan criteria and the cost-benefit analysis from R. v. Abbey.

The court found both expert opinions relevant, necessary, and not subject to exclusionary rules, with qualified experts.

The probative value of the evidence, particularly given the lack of eyewitnesses and the injured party's memory loss, was deemed to outweigh any prejudicial effect.

The Crown's application was granted for both experts.

The accused, charged with impaired driving causing bodily harm and failing to stop, applied to sit at counsel table rather than in the prisoner's dock during his jury trial.

The accused argued that sitting in the dock would prejudice his right to a fair trial, erode the presumption of innocence, and limit his ability to instruct counsel.

The Crown opposed the application, citing courtroom security, sight-lines, and the lack of exceptional circumstances.

The court dismissed the application, applying the principles from R. v. Gervais, and found that the accused failed to demonstrate exceptional circumstances necessitating a departure from the customary practice of sitting in the dock.

Following the dismissal of the appellant's appeal from a Small Claims Court order, the court determined the issue of costs.

The successful respondents sought costs despite their counsel acting on a pro bono basis.

The court rejected the appellant's arguments against awarding costs in pro bono cases, applying Court of Appeal precedent that costs awards are appropriate and necessary for successful pro bono litigants to ensure access to justice.

The court awarded the respondents partial indemnity costs of $2,557.

The appellant's action was dismissed by a Deputy Judge at a Small Claims Court settlement conference.

The appellant brought a motion before a second Deputy Judge to set aside the dismissal, which was denied for lack of jurisdiction.

The appellant appealed to the Divisional Court.

The court held that the original dismissal was a final order, meaning the second Deputy Judge correctly concluded he had no jurisdiction to hear what was effectively an appeal.

The court also declined to grant an extension of time to appeal the original dismissal order due to the lengthy delay and lack of intention to appeal within the statutory period.

The accused brought a Charter application to exclude a hunting rifle seized during execution of a telewarrant for proceeds of crime.

The court found that the Information to Obtain contained misleading statements regarding the existence of strict surveillance, which was critical to establishing reasonable grounds for the warrant.

After excising the misleading information, the remaining record could not support issuance of the warrant.

The police also searched a locked music shed that was not part of the “dwelling house” described in the warrant and entered it by battering ram despite a key being available.

Applying the s. 24(2) framework from Grant, the court held that the combined Charter breaches warranted exclusion of the firearm evidence.

The accused was charged with assault and sexual assault arising from an altercation with a former partner after an argument near a bus terminal.

The Crown alleged that the accused assaulted the complainant and then forced sexual intercourse after threatening to post intimate photos online, while the defence argued self‑defence during the physical confrontation and consensual sexual activity.

The court applied the credibility framework from R. v. W.D., finding the accused’s testimony unreliable but also identifying significant credibility and reliability concerns in the complainant’s evidence, including inconsistencies, a recantation letter, delayed disclosure of key allegations, and continued contact between the parties.

Given the conflicting evidence and the weaknesses in the Crown’s case, the court concluded that the Crown had not proven the offences beyond a reasonable doubt.

The accused was acquitted on both counts.