Richard A. Wellenreiter

The plaintiffs brought a motion under Rule 31.10 for leave to examine a non-party lawyer who acted on the purchase of the disputed property.

The plaintiffs sought to pierce solicitor-client privilege to obtain evidence regarding the deceased's intentions when purchasing the property.

The court dismissed the motion, finding that the plaintiffs had not met the test under Rule 31.10(2)(a) because one of the plaintiffs was a party to the joint retainer and already had access to the information, and no exceptional circumstances existed to warrant the disclosure of privileged communications to the non-client plaintiff.

On competing civil motions in a mortgage enforcement action, the court addressed whether a retired lawyer and beneficiary could represent a corporate trustee plaintiff under rr. 15.01 and 2.03 of the Rules of Civil Procedure.

The court granted relief on consent to amend the corporate defendant name, validate service, and direct that this action and a related action be tried together or consecutively as directed by the trial judge.

Applying discretionary access-to-justice principles and considering the trustee's bare trustee role, beneficiary alignment, inability to fund counsel, and litigation competence of the proposed representative, the court dispensed with strict compliance and granted leave for non-lawyer representation.

The defendants' cross-motion relief, including dismissal requests, conditions, security for costs, and adjournment for further service steps, was dismissed.

The applicants applied to vary an enforcement order made against them by the Capital Markets Tribunal, seeking to remove financial sanctions including a $13.5 million disgorgement order, a $600,000 administrative penalty, and a $166,000 cost award.

They argued that the sanctions prevented them from securing financing to renovate and reopen the Buffalo Grand Hotel, which was the only way investors could recover their funds.

The Tribunal dismissed the application, finding that the applicants' financing plan was speculative, incomplete, and subject to numerous uncertainties.

The Tribunal concluded that the applicants failed to demonstrate a material change in circumstances or that removing the sanctions would not be prejudicial to the public interest, noting that doing so would undermine specific and general deterrence.

The plaintiffs sought summary judgment for a declaration that they are the beneficial owners of the deceased mother's interest in a jointly-owned Hamilton property, relying on doctrines of part performance, proprietary and promissory estoppel, resulting trust, and unjust enrichment.

The defendant trustee sought summary judgment for partition and sale of the property.

The court dismissed both motions, finding that material factual and evidentiary issues remained unresolved, including the formation and terms of the alleged agreement, the reliability of hearsay evidence regarding the deceased's understanding, and the adequacy of financial documentation.

The court determined that a trial was necessary to resolve these live issues.

The appellant appealed the dismissal of his motion for leave to issue a Certificate of Pending Litigation against a property owned by the respondents.

The appellant had sued one of the respondents for defective construction work and alleged that the subsequent sale of the respondent's home to his daughter and son-in-law was a fraudulent conveyance.

The Divisional Court found that while the motion judge erred in law on the second branch of the test for issuing a CPL, she made no palpable and overriding error in finding that the balance of convenience favoured the respondents.

The appeal was dismissed.

Following a trial under the Simplified Procedure regarding a construction contract dispute, the defendants sought costs on a substantial indemnity basis.

The court found that while the defendants were the more successful parties, their recovery was mitigated by their lack of success on certain counterclaims and their unwavering position that the contract was fixed-price.

The court also found that neither party's offer to settle met the strict requirements of Rule 49.10.

Applying the principle of proportionality, the court awarded the defendants costs fixed at $47,382.86.

The plaintiff contractor sued the defendant homeowners for the unpaid balance of a custom home construction contract.

The defendants counterclaimed for construction deficiencies and intentional infliction of mental distress.

The court found the contract was a 'time and material' contract, not a fixed price contract, but reduced the plaintiff's claim due to a failure to provide proper accounting, awarding $44,299.51 on a quantum meruit basis.

The court also found the plaintiff breached the contract regarding the concrete basement floor and stairs, awarding the defendants $88,333 to remedy the defects.

The claims for delay and mental distress were dismissed.

The court addressed costs for the respondent's motion, where both parties claimed success.

The respondent's offer to settle, which proposed a comprehensive "Voice of the Child Report" including parental interviews and review of court materials, was found to be more favourable than the order obtained.

The applicant's failure to accept this offer made arguing the motion unnecessary.

Consequently, the applicant was ordered to pay the respondent full indemnity costs from the date of the offer to settle, fixed at $2,074.50.

The appellant sought reconsideration of a Licence Appeal Tribunal decision directing the Registrar to refuse her registration as a real estate salesperson.

The original decision found that the appellant's past criminal conviction for sexual exploitation of a young person afforded reasonable grounds to believe she would not carry on business with integrity and honesty.

The Executive Chair dismissed the request for reconsideration, finding that the Adjudicator did not make a significant error of law or fact in weighing the evidence, assessing credibility, or determining that conditions were not an appropriate alternative to refusal.

The plaintiff was almost entirely successful on a motion to compel answers to nearly 90 undertakings and refusals in an estate litigation matter.

The plaintiff sought costs on a substantial indemnity basis, relying on two offers to settle.

The defendant argued the motion was unnecessary and that costs should be left to the trial judge.

The court found the motion was straightforward but important, and that the plaintiff's claimed costs were reasonable.

The court fixed the plaintiff's costs at $6,600 for fees plus $343.51 for disbursements, plus HST.

Following the dismissal of the defendant's motion to strike portions of the statement of claim, the court received written submissions on costs.

The plaintiff sought costs on a substantial indemnity basis, relying on the defendant's delay in bringing the motion and offers to settle.

The defendant argued costs should be left to the trial judge.

The court rejected the defendant's arguments, considered the factors under Rule 57 and the delay under Rule 21.02, and fixed costs payable to the plaintiff at $9,000 inclusive.

The defendant in a will challenge action brought a motion to strike portions of the plaintiff's statement of claim.

The defendant argued the plaintiff lacked standing to seek an accounting and disgorgement of funds allegedly misappropriated by the defendant prior to their mother's death, as the plaintiff was not a beneficiary under the impugned will.

The court dismissed the motion, finding it was brought late in the proceedings, would not terminate the action, and that the plaintiff had sufficient appearance of a financial interest under a prior will to give her standing to advance the claims.

The appellant appealed a proposal by the Registrar to refuse her registration as a real estate salesperson under the Real Estate and Business Brokers Act, 2002.

The refusal was based on the appellant's past criminal conviction for sexual exploitation of a young person, for which she was still on probation.

The Tribunal found that the appellant's past conduct, which involved a significant breach of trust and a five-year improper relationship, provided reasonable grounds to believe she would not carry on business in accordance with the law and with integrity and honesty.

The appeal was dismissed and the Registrar was directed to carry out the proposal to refuse registration.

The appellant mother appealed an order reducing child and spousal support and dismissing her constructive trust claim.

The motion judge had refused the mother's request for an adjournment to complete previously ordered questioning, concluding the issues could be bifurcated and decided without it.

The Court of Appeal allowed the appeal, finding the motion judge denied the mother a fair hearing by jumping to the erroneous conclusion that questioning was unnecessary and by failing to allow full submissions on the issue.

A new hearing was ordered.

The applicant filed an application under section 34 of the Human Rights Code.

A continuation of a summary hearing was scheduled by teleconference.

The applicant's litigation guardian failed to attend the hearing and did not communicate with the Tribunal to explain the absence.

The respondent attended and requested the application be dismissed.

The Tribunal dismissed the application as abandoned.

Following a successful family law motion regarding parenting access and issues involving an investigation by the Office of the Children's Lawyer, the court determined the appropriate costs award.

The applicant sought substantial indemnity costs, alleging the respondent acted unreasonably by refusing access to the child and frustrating the OCL investigation.

The court found the respondent’s rigid refusal to permit access and her conduct during the clinical investigation constituted unreasonable behaviour warranting substantial indemnity costs.

However, the court reduced the claimed fees to reflect reasonable hourly rates, adjusted travel time, and applied a further reduction due to the respondent’s financial circumstances as a single parent with several children.

Costs were fixed at a reduced amount and ordered payable within 90 days.

Following the dismissal of the moving parties' motion to extend the time to appeal, the responding party sought costs on a substantial indemnity basis.

The Court of Appeal declined to award substantial indemnity costs, finding that while the moving party's failure to comply with disclosure obligations was unjustified, it did not amount to reprehensible, scandalous, or outrageous conduct.

Costs were fixed on a partial indemnity basis in the amount of $7,044.36.

The moving parties (defendants) sought an extension of time to appeal an order that struck their statement of defence for failing to comply with disclosure obligations and a costs order.

The court applied the Kefeli test for extending time to appeal.

While the moving parties had an intention to appeal and a satisfactory explanation for the delay, the court found that the appeal lacked merit, the responding party would suffer prejudice due to ongoing delays and deterioration of partnership property, and the justice of the case did not favour an extension.

The motion was dismissed.

A costs decision following a motion to change custody and access arrangements.

The respondent sought to change the primary residence of the child and restrict the third party's unsupervised access.

The applicant opposed the motion and brought a cross-motion.

The parties settled on the basis of recommendations from the Children's Lawyer's investigation.

The court found that success was divided: the respondent was unsuccessful in changing custody and primary residence but successful in reinstating and significantly expanding his access to the child and refuting serious allegations of abuse.

The court awarded costs to the respondent on a divided success basis.

The appellant appealed a judgment of the Superior Court of Justice.

The Court of Appeal agreed with the reasons of the motion judge and dismissed the appeal, awarding costs to the respondents in the amount of $5,000 inclusive.