Richard Macklin

The defendants brought a motion to set aside a noting in default and a default judgment in an action concerning an alleged default under a second mortgage.

The defendants had served a notice of intention to defend but did not deliver a statement of defence and were subsequently noted in default and subjected to default judgment.

The court considered Rules 19.03 and 19.08 of the Rules of Civil Procedure and the circumstances surrounding communications between counsel.

The court found that plaintiff’s counsel failed to provide notice of the intention to note the defendants in default and failed to respond to correspondence from new defence counsel.

In the interests of justice, the court set aside the noting in default and the default judgment and ordered the defendants to deliver a statement of defence within 20 days.

The defendants moved to set aside an ex parte order extending the time for service of a statement of claim in a construction lien action under the Construction Lien Act.

The court held that the plaintiff failed to provide full and frank disclosure of material facts when seeking the extension, particularly regarding communications with prior counsel and the circumstances surrounding the delay in service.

Applying the principles governing ex parte motions, the court concluded the omitted facts might have influenced the original decision to grant the extension.

The court set aside the extension order, invalidated service of the statement of claim, struck the action, and vacated the registered construction lien and certificate of action.

Conditional directions regarding security for costs and leave to amend the statement of defence were also addressed.

An interpleader application was brought by a municipality holding the remaining balance of a developer’s subdivision security deposit after the original developer defaulted.

Competing claims were made by the developer’s secured creditor and by a subsequent purchaser who completed the subdivision under a new agreement.

The court interpreted the original subdivision agreement, particularly provisions governing default and the return of securities upon voiding of the agreement.

It held that once the municipality declared the agreement null and void, the remaining security was contractually required to be returned to the original owner, subject to expenses.

As the secured creditor of that owner, the creditor was entitled to the remaining funds.

The court provided further directions regarding a court-ordered election for a not-for-profit corporation.

The issue was whether 18 individuals whose memberships had been suspended or terminated were eligible to vote as 'regular members' if they operated convenience stores as franchisees rather than independent owners.

The court found that the corporation's Articles did not exclude franchisee store operators from regular membership, provided they contributed to the generation of profits for the corporation.

The court ordered that the 18 individuals could vote if they submitted an affidavit confirming their contribution to the corporation's profits.

A not‑for‑profit corporate governance dispute led to court‑ordered elections for officers and directors of an association.

On a motion for directions, the court clarified the powers of court‑appointed election supervisors, determined the positions to be filled, and resolved several disputes about membership eligibility, voting procedures, and governance rules.

The court held that previous confirmations of the president and vice‑presidents were procedurally invalid due to lack of quorum and improper notice.

Suspensions or terminations of certain members were set aside due to lack of procedural fairness.

The court issued detailed directions governing the conduct of the upcoming elections, including supervision authority, quorum rules, and control over the association’s website during the election process.

The appellant condominium corporations appealed the dismissal of their application for an oppression remedy under s. 135 of the Condominium Act, 1998.

The appellants sought a declaration that the respondent developers acted oppressively by failing to provide a cost-sharing agreement for shared facilities between the residential condominiums and the commercial freehold ground floor.

The Court of Appeal dismissed the appeal, upholding the application judge's finding that the appellants failed to establish a breach of reasonable expectations or oppressive conduct, as the absence of a cost-sharing agreement was fully disclosed to purchasers.

The appellants appealed a Small Claims Court judgment awarding the respondent lawyer unpaid legal fees.

As a preliminary matter, the appellants sought to introduce fresh evidence, alleging the respondent committed perjury and fabricated documents at trial.

The Divisional Court dismissed the motion for fresh evidence, finding the respondent's explanations plausible and corroborated.

On the main appeal, the court applied the Housen standard of review and found no palpable and overriding error in the trial judge's findings regarding personal liability and the quantum of fees.

The appeal was dismissed with costs fixed at $10,000 due to the serious but unsubstantiated allegations of fraud.

The applicants sought judicial review of an interlocutory decision by the Coroner refusing to issue a summons for the production of videos depicting interactions between correctional staff and the deceased, Ashley Smith.

The Divisional Court found that the Coroner applied an incorrect and overly stringent test by requiring a demonstrated 'nexus' between the videos and the death, rather than assessing whether the evidence was 'material' to the purposes of the inquest.

The Court quashed the Coroner's decision and remitted the issue for reconsideration, holding that the denial of access to potentially relevant evidence constituted a breach of natural justice.

During a judicial review application challenging a coroner's decision not to compel the advance production of tapes for an inquest, an issue arose regarding access to information on USB keys.

The Divisional Court ruled that there was no formal motion before the court regarding media access.

Furthermore, the court determined it did not need to access the information on the USB keys at that time, as the parties had already accessed the information and referred to it in their materials without apparent prejudice.

The applicants, who were parties to an inquest into the death of an inmate, sought judicial review of a Coroner's decision refusing to order the Correctional Service of Canada (CSC) to produce certain video recordings.

In preparation for the judicial review, the applicants served a summons on the Commissioner of the CSC, requiring him to bring the videos to an examination so they could be viewed by the Divisional Court.

The CSC brought a motion to quash the summons.

The court granted the motion and quashed the summons, finding that the videos were clearly irrelevant to the issues on judicial review, which were limited to whether the Coroner acted unfairly or exceeded her jurisdiction.

The court noted that the record already contained sufficient descriptions of the videos' contents for the purpose of the judicial review.

The appellants appealed an order dismissing their joint venture action against the respondents.

The individual appellant had commenced the action while she was a discharged bankrupt, but the cause of action arose before her bankruptcy and was not disclosed to her trustee.

The motion judge found the claim was a nullity and refused to exercise equitable jurisdiction to regularize the proceeding due to the appellant's failure to disclose the asset.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's refusal to grant equitable relief given the appellant's non-disclosure and the subsequent delay.

The appellant appealed a trial judgment finding he breached a non-competition provision in a Shareholders Agreement.

The appellant argued this finding was inconsistent with the trial judge's conclusion that he did not breach a fiduciary duty when he left his employment and took a specific client's business.

The Court of Appeal dismissed the appeal, holding there was no inconsistency because the Shareholders Agreement required the appellant to relinquish his shares to avoid the non-competition provision, which he failed to do.

The appellants appealed a summary judgment enforcing a debenture, arguing that a factual dispute over the exercise of an option and a claim for equitable set-off based on alleged misrepresentations raised triable issues.

The Court of Appeal dismissed the appeal, finding that the debenture created a stand-alone debt unaffected by the option agreement, and that the alleged misrepresentations did not go to the root of the respondent's claim.

The moving party (appellant) sought a stay of the judgment pending appeal.

The court applied the RJR-MacDonald test and found that there were serious issues to be determined regarding the scope of a non-registration clause in an agreement of purchase and sale and its relation to a purchaser's lien.

The court also found that the moving party would suffer irreparable harm without a stay, as the responding party no longer had the $4.3 million deposit and intended to sell the property.

The balance of convenience favoured the moving party.

The motion for a stay was granted.

The appellant challenged the constitutionality of the Ontario Civil Remedies Act, 2001, arguing that its civil forfeiture provisions were ultra vires the province because they encroached on the federal criminal law power.

The Supreme Court of Canada held that the legislation is valid under the province's power over property and civil rights.

The Court found that the dominant purpose of the Act is to compensate victims and suppress conditions leading to crime by removing financial incentives, rather than to punish criminal offenders.

Furthermore, the Court concluded there was no operational conflict between the provincial forfeiture scheme and the sentencing provisions of the Criminal Code.

The appellant, a former director of a condominium corporation, sought a declaration that the respondent insurer had a duty to defend him in an action brought by the corporation.

The application judge dismissed the application, finding the extension of coverage was not triggered and the negligence claim was merely derivative of deliberate conduct.

The Court of Appeal allowed the appeal, holding that the effective date for assessing the appellant's knowledge was the start of the successive policy periods, at which time a claim was not reasonably foreseeable.

Furthermore, the negligence claim was independent, triggering the insurer's duty to defend.

The appellant defendants appealed an order dismissing their motion to compel the corporate plaintiffs to post security for costs.

The motion judge had dismissed the motion on the basis that the defendants had filed a counterclaim closely related to the main action.

The Divisional Court allowed the appeal, holding that while a counterclaim may be relevant when seeking security for costs against a plaintiff by counterclaim, it does not insulate an initiating plaintiff in the main action from posting security for costs.

The corporate plaintiffs were ordered to post $20,000 in security for costs.

The landlord moved to quash the tenant's appeal of a consent eviction order and to lift the automatic stay, or alternatively for interim rent and security for costs.

The tenant had lived rent-free for nearly a year while pursuing various proceedings before the Ontario Rental Housing Tribunal.

The Divisional Court declined to quash the appeal, finding it was not manifestly devoid of merit, and refused to order security for costs.

However, the court ordered the tenant to pay interim rent of $1,200 per month pending the disposition of the appeal, noting there was no justification for the tenant to live rent-free.

The appellant, who was found not criminally responsible by reason of mental disorder, was transferred from a medium security facility to a maximum security facility by order of the Ontario Review Board.

The Review Board concluded that the 'least onerous and least restrictive' test under s. 672.54 of the Criminal Code did not apply to the specific conditions of the disposition.

The Supreme Court of Canada allowed the appeal, holding that the 'least onerous and least restrictive' requirement applies to the disposition order as a whole, including its conditions.

The Court found that the Review Board committed an error of law and that the Crown failed to demonstrate that no substantial wrong occurred, entitling the appellant to a re-hearing.

The plaintiffs, the estate and family of a man fatally shot by police, brought actions for misfeasance in a public office and negligence against the involved officers, the Chief of Police, the Police Services Board, and the Province.

The claims arose from the officers' alleged failure to cooperate with the Special Investigations Unit (SIU) investigation.

The defendants moved to strike the claims for disclosing no reasonable cause of action.

The Supreme Court of Canada held that the actions for misfeasance in a public office against the officers and the Chief, and the negligence action against the Chief, could proceed, as it was not plain and obvious they would fail.

However, the negligence actions against the Board and the Province were struck out because they did not owe a private law duty of care to the plaintiffs to ensure officers cooperated with the SIU.