Phillip W. Sutherland

The plaintiffs sought an injunction to prevent golf balls from the defendants' golf course from entering their property, causing damage and posing a safety risk.

The court dismissed the motion, primarily because the plaintiffs failed to provide a mandatory undertaking concerning damages as required by Rule 40.03 of the Rules of Civil Procedure.

Additionally, the court found that the plaintiffs did not demonstrate irreparable harm and that the balance of convenience favored the defendants, who had taken steps to mitigate the issue and whose business would be significantly impacted by the injunction.

The plaintiffs, Rosehaven Homes Limited and Bram-Rose Homes Inc., brought a motion for summary judgment seeking damages for breach of an Agreement of Purchase and Sale (APS) after the defendants failed to close a real estate transaction.

The defendants argued the APS was invalid due to issues like lack of ID verification, unconscionability, wilful blindness, and that the plaintiffs failed to mitigate damages by refusing a vendor take-back mortgage.

The court granted summary judgment in favour of Rosehaven Homes Limited, finding no genuine issues requiring a trial.

The court dismissed the defendants' arguments regarding the APS's validity and mitigation, awarding damages and prejudgment interest to Rosehaven Homes Limited.

In a high-conflict family law proceeding, the court held a focused trial to determine parenting and child support issues for three children.

The court considered whether to release the two younger children from a court-ordered parenting schedule based on their views and preferences.

The court released the 16-year-old child from the schedule effective August 2022 but declined to release the 14-year-old child.

The applicant mother was granted sole decision-making authority.

The court also calculated child support and section 7 expense arrears, ordering the respondent father to pay outstanding amounts.

Ongoing child support was reduced to $1,850 per month to reflect the shared parenting arrangement and the eldest child attending university.

The applicant, Chair of the City of Hamilton's LGBTQ Advisory Committee, sought judicial review of an Integrity Commissioner's report finding he breached the code of conduct by disclosing confidential information, and the City Council's subsequent decision to reprimand him.

The applicant argued the Integrity Commissioner lacked jurisdiction because the advisory committee was not a 'local board' under the Municipal Act, 2001, and that the process was procedurally unfair.

The Divisional Court dismissed the application, finding it was reasonable to interpret 'local board' as including the advisory committee, and that the applicant was afforded procedural fairness throughout the investigation and council proceedings.

The plaintiff obtained an ex parte Mareva injunction against his brothers and their jointly owned corporations amidst a family business dispute.

On the return motion, the defendants argued the injunction should be set aside due to the plaintiff's failure to provide full and frank disclosure of material facts, including his involvement in prior litigation and his control over a corporate mortgage.

The court agreed that the plaintiff breached his duty of full and frank disclosure and discharged the Mareva injunction over the defendants' personal assets.

However, the court exercised its discretion to grant an alternate interim injunction securing specific corporate cash accounts and real properties pending trial.

The applicant, charged with drug and firearm offences, brought an application to exclude evidence seized by police during the execution of a general warrant and upon his arrest.

The court previously found that the applicant's Charter rights were breached.

Applying the Grant framework under s. 24(2) of the Charter, the court found that the police conduct was serious, noting that the lead investigator provided misleading information in the Information to Obtain (ITO) regarding the necessity of a general warrant.

Although the evidence was reliable and essential to the Crown's case, the court concluded that admitting the evidence would bring the administration of justice into disrepute due to the serious state misconduct.

The application was granted, and the evidence was excluded.

The appellants (mortgagees) appealed a motions judge's decision that granted priority to construction lien claimants over the arrears in interest and enforcement costs of a prior registered vendor take-back (VTB) mortgage.

The Divisional Court allowed the appeal, holding that under s. 78(3) of the Construction Lien Act, a prior registered mortgage that goes into default retains priority over subsequent liens for the entire amount secured, including arrears of interest and reasonable enforcement expenses.

The Master's report confirming the mortgagees' priority to the funds paid into court was restored.

The applicant brought an application to quash a general warrant and exclude evidence obtained during a covert entry and search of his residence.

The police had obtained a general warrant that authorized them to enter the applicant's unit once identified, provided they determined there were reasonable and probable grounds to believe evidence of drug trafficking was inside.

The Superior Court of Justice found the general warrant invalid on two grounds: it impermissibly delegated the judicial function of determining reasonable and probable grounds to the police, and it violated s. 487.01(1)(c) of the Criminal Code because the police could have obtained a standard search warrant under the Controlled Drugs and Substances Act once the unit was identified.

The applicant's s. 8 Charter rights were breached, and a subsequent hearing was ordered to determine the admissibility of the evidence under s. 24(2).

The plaintiff brought a motion for summary judgment for damages arising from an aborted real estate transaction.

The defendants admitted to breaching the agreement of purchase and sale but argued the plaintiff failed to mitigate his damages when he resold the property for a lower price in a falling market.

The court heard expert appraisal evidence from both parties.

The court found the defendants failed to prove the plaintiff acted unreasonably in mitigating his damages, noting the property was sold on the open market after reasonable exposure.

Summary judgment was granted in favour of the plaintiff for $111,702.58, representing the difference in sale prices plus carrying costs, less the deposit.

The Registrar appealed a Licence Appeal Tribunal (LAT) decision directing the Registrar not to revoke the respondent's funeral preplanner licence.

The respondent had misused client funds, but the LAT found she did not personally benefit and her past conduct did not give reason to believe she would fail to act with honesty and integrity in the future.

The Divisional Court dismissed the appeal, finding the LAT made no reviewable errors in its application of section 14(1)(b)(ii) of the Funeral, Burial and Cremation Services Act, 2002, and properly considered the respondent's motivations.

The appellant grandparent appealed a motion judge's decision dismissing his motion to be added as a party to child protection proceedings concerning his grandchild.

The appellant argued the motion judge failed to apply the five-part test for adding parties and failed to give reasons for denying alternative relief for participant status.

The Divisional Court dismissed the appeal, finding the motion judge substantively considered the relevant factors and correctly concluded that adding the appellant was not in the child's best interests, as it would unduly prolong proceedings and the appellant lacked a viable competing plan.

The court also held that the appellant did not meet the statutory precondition of providing continuous care for six months to qualify for participant status.

The moving party brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal without costs, noting that the responding party only submitted a brief letter in response.

The moving party brought an unopposed motion for leave to appeal the decisions of the lower court judge.

The Divisional Court dismissed the motion for leave to appeal without costs.

The moving parties brought a motion for leave to appeal the decision of Justice Tranquilli dated March 29, 2021.

The Divisional Court dismissed the motion for leave to appeal without costs, as no cost summaries were filed.

The moving party sought leave to appeal from endorsements refusing his requests to adjourn an upcoming trial.

The court directed the moving party to serve and upload his materials by a specific deadline.

The moving party failed to upload any materials by the deadline.

Given the imminent trial date, the Divisional Court dismissed the motion for leave to appeal.

The applicants sought a declaration that an Agreement of Purchase and Sale (APS) for a property was null and void after the respondent purchasers failed to waive inspection and financing conditions by the deadline.

The respondents had proposed an amendment to the APS instead of waiving the conditions, which the applicants did not accept.

The respondents subsequently registered a Purchaser's Lien on the property.

The court held that the APS was null and void because the conditions were not explicitly waived or fulfilled in writing as required.

The court ordered the Purchaser's Lien discharged and the deposit returned to the respondents, finding no breach of the duty of good faith by the applicants.

The applicant mother brought a motion for temporary child and spousal support, seeking to impute an annual income of $1.5 million to the respondent father based on text messages and lifestyle.

The father argued his income was $146,655.50.

The court found the financial disclosure from both parties to be inadequate and applied 'rough justice' to determine income based on the parties' sworn living expenses.

The court imputed an income of $285,000 to the father and zero income to the mother, ordering temporary spousal support of $7,201 per month and child support of $2,271 per month.

The mother's request for an order requiring the father to obtain $4.1 million in life insurance was dismissed due to a lack of evidence.

Following a finding that sections 286.2, 286.3(1), and 286.4 of the Criminal Code violated section 7 of the Charter, the court determined the appropriate remedy under section 52(1) of the Constitution Act, 1982.

Applying the framework from Ontario (Attorney General) v. G, the court rejected the Crown's request for tailored remedies (reading in, reading down, or severance), finding that such modifications would significantly alter Parliament's legislative scheme.

The court also declined to suspend the declaration of invalidity, concluding the Crown failed to demonstrate a compelling public interest justifying a suspension.

The impugned provisions were declared immediately of no force and effect.

The plaintiff brought an ex parte motion for a Mareva injunction against his brothers and their jointly owned corporate entities.

The plaintiff alleged that the defendants were dissipating assets, selling properties without his knowledge or consent, and transferring funds to avoid sharing them equally as previously agreed.

The court found that the motion should proceed ex parte due to the risk of further asset dissipation if notice were given.

Applying the test for a Mareva injunction, the court found the plaintiff established a strong prima facie case, a risk of asset removal, irreparable harm, and that the balance of convenience favoured granting the injunction.

The court granted a temporary Mareva injunction freezing the defendants' assets.

This decision addresses costs and prejudgment interest following a seven-day trial where the plaintiffs were awarded $361,875.33 in damages.

The plaintiffs sought $220,915.33 in partial indemnity costs, while the defendant proposed $154,697.70.

The court, applying the modern costs rules, awarded the plaintiffs $130,000 in fees and $50,809.21 in disbursements, totaling $197,709.21 in costs, plus $1,698.90 in prejudgment interest.

The court emphasized proportionality, the non-applicability of the old cost grid, and the need for detailed information for claimed disbursements.