Raymond Gary Colautti

The moving party brought a motion for directions concerning a February 21, 2025 order of Justice Rady, seeking clarification on whether the order was final or interlocutory and the proper route of appeal.

The moving party contended the order was final and that jurisdiction lay with the Court of Appeal for Ontario.

The responding parties agreed with this position.

The Court dismissed the motion, holding that parties cannot confer jurisdiction by agreement, but that where jurisdiction is not contested, the appeal should proceed in the normal course without requiring an advance motion for a positive finding on jurisdiction.

The Court noted that jurisdiction is ultimately a matter for the panel hearing the appeal.

A dispute arose between a seller of an endodontics practice and the proposed purchaser regarding the sale of the practice.

The parties executed a Letter of Intent that contained conditions precedent to closing, including the negotiation of a new lease on terms satisfactory to the purchaser and the purchaser's satisfaction with due diligence investigations.

The purchaser terminated the Letter of Intent after learning of key employee departures and difficulties in finalizing the lease agreement.

The seller alleged breach of good faith and honest performance.

The court found no breach, holding that the purchaser exercised his contractual discretion reasonably and in good faith, and was entitled to terminate the transaction when conditions precedent were not met.

The Estate of John McKinlay sought summary judgment against the Municipality of Chatham-Kent for a declaration that the Municipality was responsible for maintaining a drainage tile (Drain) on the Estate's property and for reimbursement of repair costs and crop losses.

The Drain was installed under an easement granted by the Estate's predecessor to the Province, which was later transferred to the Municipality's predecessor.

The court found that the easement granted the Municipality the right to maintain the Drain but did not impose a positive obligation to do so.

Therefore, the claim for declaratory relief was dismissed.

However, the court declined to grant summary judgment dismissing the entire action, noting that the Estate's amended statement of claim pleaded facts capable of supporting a claim for damages in nuisance, which was not fully canvassed during the motion.

The motion for summary judgment was dismissed, allowing the nuisance claim to proceed to trial.

The appellants, a foster parent and his daughters, appealed a motion judge's decision to strike their claims against Family and Children’s Services of the Waterloo Region (FCS) and two of its employees.

The claims included breach of statutory duty, breach of duty of care, breach of fiduciary duty, and defamation, stemming from an FCS investigation into sexual abuse allegations.

The motion judge struck the claims, granting leave only for misfeasance in public office.

The Court of Appeal affirmed the motion judge's decision, holding that child welfare agencies do not owe a duty of care or fiduciary duty to foster parents, as their paramount duty is to the child, which would create an irreconcilable conflict of interest.

The Court also upheld the striking of claims against individual employees, finding the allegations of bad faith insufficiently particularized to overcome statutory immunity under s. 15(6) of the Child and Family Services Act.

The appeal was dismissed with costs.

The Third Party, GPN, brought a motion to dismiss or stay a Third Party Claim by the Catholic Children’s Aid Society of Hamilton (CCAS) or, alternatively, to permit her to continue as litigation guardian for the minor Plaintiff, JTB.

The CCAS brought a cross-motion to dismiss GPN's motion and remove her as litigation guardian, appointing the Office of the Children’s Lawyer (OCL).

The court dismissed GPN's motion, finding the Third Party Claim was not frivolous, vexatious, or an abuse of process, and that it pleaded a reasonable cause of action for contribution and indemnity.

The court granted the CCAS's motion to remove GPN as litigation guardian due to a conflict of interest, but adjourned the decision on appointing the OCL.

The defendants, Chatham-Kent Children’s Services (CKCS), moved to compel the plaintiffs, Brian and Betty-Jo Kivell, to produce unredacted medical and counselling records and a further affidavit of documents.

The plaintiffs claimed the redacted portions were irrelevant, embarrassing, and subject to Wigmore privilege, relating to a private marital matter.

The court found the redacted information relevant to the plaintiffs' claimed psychological injuries and the defendants' causation defence.

The court rejected the privilege claim, finding insufficient evidence to satisfy the fourth Wigmore criterion (injury from disclosure outweighing benefit to litigation).

The motion was granted, ordering Mr. Kivell to produce the unredacted documents and a further affidavit of documents within 45 days, with a warning that failure to comply would result in dismissal of his claim.

The appellant appealed a permanent injunction that prevented the operation of his tavern, Paradise Night Club, without a municipal business license.

The Court of Appeal dismissed the appeal, affirming the application judge's decision.

The court found that the municipal Business Licensing By-law applied to the appellant's business and did not conflict with the exclusive jurisdiction of the Alcohol and Gaming Commission of Ontario under the Liquor Licence and Control Act, 2019.

The court reiterated that a business can be required to hold multiple licenses and that an injunction to enforce a bylaw should only be refused in exceptional circumstances, which were not present in this case.

This endorsement addresses the costs arising from successful summary judgment motions brought by the defendants, Jeffrey Lehman et al. and the Corporation of the City of Barrie, against Correct Building Corporation and Correct Group Inc. The court awarded substantial indemnity costs to the individual defendants, finding the claims against them frivolous, baseless, and an abuse of process.

Partial indemnity costs were awarded to the City of Barrie, with a reduction for an abandoned counterclaim and an unrecoverable disbursement for an unproduced expert report.

The total costs awarded were $1,066,412.62.

This motion concerned an application by two members of a co-operative housing enterprise, Saffia Abdul-Haqq and Masbal Abokar, for an advance payment of $46,000 in legal fees from the co-op's funds.

The purpose of these funds was to oppose a pending motion by the City of Toronto to extend the appointment of an interim receiver over the co-op's business and affairs.

The court dismissed the motion, finding that the applicants failed to satisfy the "highly exceptional" test for advance interim costs, specifically failing to establish a prima facie meritorious case or special circumstances, despite their impecuniosity.

The court found no conflict between the Housing Services Act and the Co-operative Corporations Act regarding receivership, nor any infringement of Charter rights.

The co-op's funds were deemed necessary for essential repairs and financial rehabilitation, not for funding the applicants' opposition.

The appellants appealed a summary judgment order.

The Court of Appeal upheld the motion judge's conclusion that the officer had subjective reasonable and probable grounds for arrest, finding it supported by evidence and objectively reasonable.

The allegation of negligent investigation was dismissed because the appellants failed to present expert evidence on the standard of care to rebut the police's evidence.

The court affirmed that summary judgment in favour of a defendant was appropriate in this case.

The appeal was dismissed with costs awarded to the respondents.

The plaintiff subcontractor, Tremblar Building Supplies Ltd., brought an action against the owner defendants (The Lighting Boutique Defendants) for breach of trust under the Construction Act and unjust enrichment, seeking payment for materials supplied to a general contractor (Keystone) that subsequently declared bankruptcy.

The owner defendants moved for summary judgment to dismiss the claims.

The court granted summary judgment, finding that no statutory trust existed between the owner and the subcontractor due to a lack of privity of contract, as established by prior Divisional Court rulings.

Furthermore, the court determined that the existing contractual arrangements and the comprehensive scheme of the Construction Act constituted juristic reasons, thereby precluding any claim for unjust enrichment.

The defendant, Corporation of the Town of LaSalle, brought a motion to dismiss the action or, alternatively, to strike the matter from the trial list or adjourn the trial, supported by the Tedesco defendants.

The motion was based on the plaintiffs' non-compliance with pre-trial orders regarding expert reports, cost estimates, and financial disclosure, as well as unanswered undertakings from discovery.

The court found that the plaintiffs had not fully complied with disclosure requirements, particularly concerning repair cost estimates and corporate income loss documentation.

Consequently, the court struck the action from the March 30, 2020 trial list, ordering that it not be restored until a court-approved schedule for remaining steps is established, to allow defendants to react to newly provided information and conduct further examinations.

The appellant, owner of a commercial property in Windsor, Ontario, sought leave to amend its statement of claim in a second action to add a claim for breach of statutory duty under the Environmental Protection Act.

The motion judge refused the amendment on the grounds that it was statute-barred under the Limitations Act, 2002 and constituted an abuse of process.

The Court of Appeal upheld the decision, finding that the claim was clearly statute-barred and that the proposed amendment would constitute an entirely new cause of action against different parties.

The court noted that the appellant had the option to amend its statement of claim in the first action instead.

The appeal was dismissed, and costs were fixed at $30,000 inclusive.

The court fixed costs payable by the plaintiffs to the Lowe's defendants at $114,091.83 and to the Windsor Police Service (WPS) defendants at $91,841.47, on a joint and several basis.

The court rejected the plaintiffs' arguments of impecuniosity and public interest litigation, finding they failed to provide robust financial disclosure and that their claims were primarily private in nature despite involving Charter rights.

The court found the plaintiffs' conduct unnecessarily lengthened the proceeding and that the costs sought were reasonable given the complexity and duration of the action, and the WPS defendants' offer to settle.

The plaintiffs sought damages for nuisance and statutory liability under the Municipal Act, 2001, alleging property damage from increased truck traffic.

Both parties brought competing summary judgment motions.

The court found the plaintiffs' claim was statute-barred under the Limitations Act, 2002, as it was discovered in February 2009, making the January 2018 action outside the two-year limitation period.

The court rejected the application of the ten-year Real Property Limitation Act and the "rolling" cause of action.

Additionally, the court held that the statutory duty of care under s. 44 of the Municipal Act, 2001, was owed to the travelling public, not adjoining landowners.

Consequently, the defendant municipality's motion for summary judgment was granted, and the plaintiffs' motion was dismissed.

An appeal from a trial judgment upholding the validity of a codicil executed by an 87-year-old mother that changed her will to leave the residue of her estate to one son instead of dividing it equally between two sons.

The appellant son challenged the codicil on grounds of lack of testamentary capacity, undue influence, and coercion.

The trial judge found the codicil valid after a 10-day trial.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings regarding testamentary capacity, knowledge of assets, and the absence of undue influence or coercion.

Appellants appealed the motion judge's refusal to enforce a settlement agreement reached at a pre-trial conference in a motor vehicle accident action.

The motion judge found that counsel's description of witnesses as "independent" amounted to civil fraud because the witnesses' son lived across the street from the plaintiffs.

The Court of Appeal allowed the appeal, holding that counsel's statement was an opinion with a reasonable basis made in good faith, not a false statement of fact.

The court emphasized that findings of civil fraud against counsel could have devastating reputational consequences and could chill resolute advocacy.

The court also found that the defendant failed to exercise due diligence in investigating the witnesses' connection to the plaintiffs.

An estate trustee sought to strike out a beneficiary's notice of objection to accounts on the grounds that the objections were barred by the two-year limitation period under the Limitations Act, 2002.

The court held that a notice of objection to accounts filed in response to an estate trustee's application to pass accounts does not commence a proceeding within the meaning of the Limitations Act and therefore is not subject to the basic two-year limitation period.

The court dismissed the appeal and ordered the estate trustee to pay costs personally, finding his motion to strike was unreasonable and designed to delay the passing of accounts hearing.

Strathan Corporation sought leave to amend its statement of claim in a second action (Second Strathan Action) to include a new claim for breach of statutory duty causing environmental contamination under the Environmental Protection Act.

The defendants opposed, arguing the proposed amendments were statute-barred by the Limitations Act, 2002, untenable at law, and an abuse of process given a prior action (First Strathan Action) already addressing environmental contamination.

The court dismissed Strathan's motion, finding the new claim was a distinct cause of action, statute-barred by the two-year limitation period (as Strathan knew of the environmental claim since 2009 when it commenced the First Strathan Action), and constituted an abuse of process by attempting to graft a duplicative claim onto a separate action.

The court also rejected the argument that the Real Property Limitations Act applied.

Appellants appealed the dismissal of their action alleging negligent investigation, malicious prosecution, abuse of process, and Charter damages arising from the respondents' investigation of a fire at a rental house.

The fire was intentionally set by a resident, but spread rapidly due to Fire Code violations.

The appellants were charged with arson by negligence under s. 436 of the Criminal Code.

The charge against one appellant was withdrawn; the other was discharged at preliminary inquiry.

The trial judge dismissed all claims, finding the investigating officer had reasonable and probable grounds to lay charges and acted in good faith without malice.

The appellants appealed, arguing the officer lacked reasonable and probable grounds because they lacked the requisite mens rea.

The Court of Appeal upheld the dismissal, holding that under the modified objective test for negligence-based offences, the officer had reasonable and probable grounds based on the marked departure from the standard of care inferred from Fire Code violations.