Phillip W. Sutherland

The defendant, Rakesh Patel, was charged with dangerous operation of a motor vehicle causing death after hitting a seven-year-old girl on her bicycle in a crosswalk.

The court found that Patel drove through a red light due to substantial inattentiveness and distraction, which constituted a marked departure from the standard of care of a reasonable prudent driver.

Despite arguments that his actions were a momentary lapse due to stress, the court concluded that his prolonged inattention over 9-10 seconds, covering a significant distance, merited criminal fault.

Patel was found guilty of dangerous driving causing death.

In the first part of a bifurcated family law trial dealing with property issues, the court determined the treatment of the respondent's RRSP used under the Home Buyers Plan and a disputed pre-marriage loan.

The court held that the respondent was entitled to a date of marriage deduction for his $25,000 RRSP and had a date of separation asset of $21,668, subject to a notional tax rate of 25%.

The court also found, on a balance of probabilities, that the respondent had an asset of $35,000 (US) owed to him on the date of marriage from a loan to his brother-in-law, rather than the $47,400 claimed.

The defendants Xytex Corporation, Xytex Cryo International Inc., Mary Hartley, and Dr. James Todd Spradlin brought a motion to dismiss the action based on res judicata, arguing that the plaintiffs' identical action in Georgia had already been dismissed on the merits.

The plaintiffs opposed, contending the Georgia decision was not on the merits due to a procedural dismissal of their appeal.

The court found that the Georgia Superior Court's dismissal was a decision on the merits, and the subsequent procedural dismissal of the appeal did not negate its finality.

Applying the principles of res judicata, the court dismissed the plaintiffs' action in Ontario, finding no genuine issue requiring a trial and no special circumstances to permit re-litigation.

The Regional Municipality of York, City of Vaughan, and York Regional Rapid Transit Corporation brought a Rule 21 motion to stay the plaintiff's action for lack of jurisdiction, arguing that all claims constituted "injurious affection" under the Expropriations Act and fell within the exclusive jurisdiction of the Ontario Municipal Board (OMB).

The plaintiff conceded some claims (reduction in market value, business losses, quiet use and enjoyment during construction) were for injurious affection.

However, the plaintiff contended that claims for physical damage to its building and walkways, claims against Bell Canada and Robert B. Somerville Company Limited, and claims for ongoing vibrations were outside the OMB's jurisdiction.

The court found that while the work by Bell Canada and Somerville was under statutory authority, the alleged physical damage was not proven to be an inevitable consequence of the authorized work, a key requirement for injurious affection.

Consequently, the court stayed the conceded claims but allowed the claims for physical damage, those against Bell Canada and Somerville, and claims for ongoing vibrations to proceed in the Superior Court.

This motion concerned undertakings and refusals in cross-examinations related to a charging order sought by BPR Litigation Lawyers against bond funds held for Unimac Group Ltd. Trisura Guarantee Insurance Company, an interested third party, challenged the quantum of the charging order and the extent of solicitor-client privilege claimed by Unimac/BPR.

The court determined that Trisura was entitled to question the quantum of the charging order and that privilege did not extend to descriptions of work performed in work-in-progress reports, but did protect confidential solicitor-client communications and business judgment decisions.

Following a successful motion for security for costs, the moving defendants sought costs of $10,000.

The self-represented plaintiff opposed the costs award, arguing he was impecunious and requesting the underlying decision be set aside.

The court held that the plaintiff could not use alleged impecuniosity as a shield against costs, particularly given his failure to provide necessary financial evidence and his history of litigation.

The court fixed costs at $7,500 payable by the plaintiff to the moving defendants.

The plaintiff, Robert Weidenfeld, brought a motion seeking permission to participate by teleconference and an order confirming impecuniosity.

The defendants, Robert Andrew Leck and Stiver Vale (law Firm), brought a cross-motion for security for costs against the plaintiff.

The court found that the plaintiff, residing outside Ontario with no assets in the province, failed to provide sufficient evidence of impecuniosity.

The court also determined that the plaintiff's claim against the moving defendants, alleging negligence and breach of duty of care by real estate lawyers for transferring property without investigating outstanding family law proceedings, did not appear obviously meritorious.

Consequently, the defendants' motion for security for costs was granted in the amount of $20,000, payable in installments, and the plaintiff's motion was dismissed.

Trisura Guarantee Insurance Company brought a motion for a declaration that its perfected security interest under the Personal Property Security Act (PPSA) had priority over any solicitor's charging order that might be obtained by BPR Litigation Lawyers, the former lawyers for Unimac Group Ltd. The court dismissed the motion, finding that the PPSA does not apply to solicitors' charging orders.

Furthermore, the court held that the common law 'first in time' rule does not apply to solicitors' charging orders due to their equitable nature and purpose.

Trisura's indemnity agreement with Unimac did not preclude BPR from seeking a charging order against funds recovered or preserved through their instrumentality.

The plaintiffs sought costs thrown away after a civil jury trial was adjourned due to the defendant's late filing of seven critical expert reports, in contravention of Rule 53.03.

The court found the adjournment was due to the defendant's fault or responsibility, entitling the plaintiffs to costs thrown away.

The court assessed the plaintiffs' bill of costs, applying a 35% discount due to lack of detail and the speculative nature of assessing costs thrown away, and ordered the defendant to pay $17,449.02 inclusive of HST and disbursements within 30 days.

The appellant brought a motion to set aside an order of a single judge of the Divisional Court refusing leave to appeal two costs orders.

The appellant argued the leave motion should have been heard orally rather than in writing.

The court held that a single judge of the Divisional Court does not have inherent or statutory jurisdiction to set aside an order of another single judge of the same court.

The motion was adjourned to a panel of the Divisional Court, which has the statutory authority to set aside a motion order of a single judge.

The plaintiff brought a motion to prevent the administrative dismissal of his action for delay, establish a timetable, and amend his Statement of Claim to add a claim for shares in lieu of cash payment and to add a new corporate defendant.

The defendants opposed the amendment for shares, arguing it was a new cause of action barred by the Limitations Act, 2002.

The court found that the proposed amendment arose from the same factual situation as the original claim and was therefore not a new cause of action.

The court granted the motion to amend the pleadings, finding no non-compensable prejudice to the defendants.

The plaintiffs' home was flooded twice due to a cast iron water main breaking in front of their driveway.

They sued the City of Vaughan for negligence and nuisance.

The City argued its failure to replace the water main was a policy decision exempt from liability under the Municipal Act.

The court found the City's inaction was an operational decision, as it failed to follow its own internal barometer for replacing water mains with a history of breaks.

The City was found liable for negligence, and the plaintiffs were awarded agreed-upon damages of $480,000.

The parties brought multiple motions concerning child support for two adult children, spousal support, and prejudgment interest on an equalization payment.

The court ordered the respondent to pay child support arrears for Aryn and temporary spousal support to the applicant, increasing after child support for Dale ends.

The applicant was ordered to pay child support for Dale until December 31, 2016.

The court also ordered the respondent to pay prejudgment interest on the equalization payment, rejecting the argument that pension transfer as a payment method negates interest.

This decision addresses two motions brought by Trisura Guarantee Insurance Company in the context of construction lien proceedings.

The first motion sought to set aside a charging order obtained by BPR Litigation Lawyers against a construction lien bond without notice to Trisura.

The second motion sought leave to pursue exoneration and payment out of the bond.

The court found that Trisura did not require leave to challenge the charging order, had standing due to its direct proprietary and economic interests under an Indemnity Agreement, and consequently, the charging order was set aside for lack of notice.

However, the court denied Trisura leave to bring its motion for exoneration within the construction lien actions, determining that such a claim, based on a separate Indemnity Agreement, did not expedite the resolution of the lien issues and was already the subject of a separate action in Toronto, posing a risk of inconsistent findings.

The defendants, an insurance brokerage firm and its individual employees, brought a motion to strike the plaintiffs' statement of claim against the individual employees for failing to plead a reasonable cause of action.

The court found that the statement of claim did not sufficiently allege personal liability against the individual employees, as their actions were within the scope of their employment and lacked specific allegations of fraud, deceit, dishonesty, or actions separate from the corporate entity.

While the claims against the individual defendants were struck, the plaintiffs were granted leave to amend their statement of claim within 30 days to plead facts that could sustain a viable claim against them.

This decision addresses the costs arising from a dismissed summary judgment motion brought by the defendant, Klein-Rose Homes Inc., under the Construction Lien Act.

The court applied section 86 of the CLA, which grants broad discretion in awarding costs in construction lien proceedings, and considered the Rules of Civil Procedure where not inconsistent.

The plaintiff, Allcon Concrete & Haulage Ltd., was the successful party on the underlying motion and sought costs.

The court fixed costs at $26,560 for the plaintiff, payable upon the plaintiff's success at trial or a subsequent summary judgment motion in proving the validity of its claim for lien, irrespective of the full success on the contract claim or defense against the counterclaim.

The court rejected the defendant's argument to reserve costs to the trial judge and the plaintiff's assertion of the defendant's "unduly aggressive and unreasonable" conduct.

The applicant brought a motion for a penalty following a previous finding that the respondent was in contempt for breaching various court orders, including failing to provide financial disclosure.

Although the respondent had since provided most of the required disclosure after retaining new counsel, he had also transferred over $53,000 from the sale of a property to his new wife in violation of a court order.

The court found that while the respondent had significantly complied with disclosure orders, his unauthorized transfer of funds warranted a penalty.

The court ordered the respondent to pay a $10,000 fine and a $5,000 penalty to the applicant, but declined to strike his pleadings given his recent efforts to comply and his proposal to pay arrears from the proceeds of a property sale.

The former solicitor for the defendants brought a motion for leave to intervene as an added party in the plaintiff's default proceedings for the assessment of damages.

The solicitor argued he had an interest in the subject matter and could be adversely affected by the judgment, as the defendants had commenced a separate action against him for professional negligence.

The court dismissed the motion, finding the solicitor had no interest in the subject matter of the proceeding and failed to show he would be adversely affected.

The court also held that allowing the intervention would unduly delay and prejudice the plaintiff's rights.

The applicant brought a wide‑ranging family law motion seeking relief including exclusive possession of the matrimonial home, child and spousal support, disclosure, valuation of assets, and interim disbursements.

The respondent brought a competing motion seeking sale of the matrimonial home, changes to access, termination of a restraining order, and termination of interim financial obligations.

The court declined to order the sale of the matrimonial home and granted the applicant temporary exclusive possession, finding the sale would prejudice the applicant’s financial position and stability.

The court imputed income to the respondent based on lifestyle evidence and lack of disclosure, ordered interim child support and spousal support, and granted interim disbursements to level the litigation playing field.

The court also maintained the existing access schedule, refused to terminate the restraining order, and ordered extensive financial disclosure and asset valuation.

Following the breakdown of a long-term common law relationship involving two children, the applicant sought child support, spousal support, and compensation for unjust enrichment based on a joint family venture.

The respondent argued the parties had separated in 1997 pursuant to a separation agreement, while the applicant asserted the relationship continued until 2011.

The court found the parties remained in a common law relationship until June 21, 2011, and determined that the applicant had established unjust enrichment arising from her domestic and caregiving contributions that enabled the respondent’s financial advancement.

Applying the joint family venture framework from Kerr v. Baranow, the court concluded the respondent retained a disproportionate share of assets accumulated during the relationship.

The applicant was awarded a monetary remedy of $125,000 and ongoing spousal support calculated under the Spousal Support Advisory Guidelines.