Robert E. Charney

The defendant, Nelli Griu, brought a motion to set aside a default judgment obtained by the plaintiff, Arista Homes (Kleinburg) Inc., for breach of an agreement of purchase and sale.

The defendant argued that she could not afford legal assistance and had a credible defence based on frustration of contract due to a market value decrease, the plaintiff's failure to mitigate damages by refusing to renegotiate the price, and a claim for relief from forfeiture.

The court dismissed the motion, finding that the defendant's proposed defences were legally untenable, as market fluctuations do not constitute frustration, a vendor is not obliged to renegotiate with a defaulting purchaser to mitigate damages, and relief from forfeiture was inapplicable given the deposit was deducted from damages.

The appellant sought to appeal a Superior Court decision denying him leave to appeal a family law arbitration award.

The respondent brought a motion to quash the appeal, arguing there is no right to appeal a denial of leave.

The Divisional Court reviewed conflicting jurisprudence and followed the general rule that an order refusing leave to appeal is not appealable, except in narrow circumstances where a judge mistakenly declines jurisdiction.

As the appellant did not allege the judge declined jurisdiction, the notice of appeal was quashed.

The plaintiff, a judgment creditor, brought a motion for an order for a judicial reference sale of the defendant's property, arguing it was more advantageous than a sheriff's sale.

The defendant did not respond or appear.

The court considered conflicting judicial decisions on the availability of judicial reference sales and adopted the view that the court has inherent jurisdiction to order such a sale when it is more likely to achieve fair market value and is beneficial to all parties, including the debtor.

The motion was granted.

The case involved two motions: the Applicant sought temporary spousal and child support retroactive to June 1, 2021, and the Respondent sought to remove the Applicant's counsel, claim tort damages for intrusion upon seclusion, and prevent reliance on improperly obtained emails.

The court dismissed the Respondent's motion for tort damages as improperly pleaded and premature, and dismissed the motion to remove counsel, finding no evidence of confidential information being shared with counsel.

The court granted the Applicant's motion for interim spousal support of $4,000 per month and child support of $329 per month, both retroactive to July 1, 2021, after imputing an income of $14,500 to the Applicant and deducting the child's ODSP benefits from the child support calculation.

A case management conference was held to address procedural issues in several consolidated actions.

The court scheduled a motion to clarify a previous order dismissing the plaintiff's motion for default judgment against one of the defendants.

The court also denied the plaintiff's request to examine non-parties and obtain documents prior to a Rule 21 motion to strike, noting that no evidence is admissible on such a motion.

The defendants brought a motion to transfer a related action from Toronto to Newmarket and to consolidate four separate actions commenced by the self-represented plaintiff.

The actions all arose from the plaintiff's termination from his employment and involved claims of wrongful dismissal, conspiracy, and defamation.

The plaintiff consented to the transfer and partial consolidation but opposed consolidating two of the actions because one defendant had been noted in default.

The court granted the motion in its entirety, finding that the actions shared common questions of law and fact, and that consolidation would be the most cost-effective and efficient way to proceed while avoiding conflicting findings of fact.

The plaintiffs brought a motion for default judgment seeking specific performance after the defendant breached an Agreement of Purchase and Sale for a residential property.

The defendant failed to close the transaction and was noted in default.

The court found the property was unique to the plaintiffs because it was within their budget in a rising real estate market and conveniently located near their workplaces.

The court granted specific performance but dismissed the plaintiffs' claim for incidental damages as it was not pleaded in the Statement of Claim.

The appellant sought to appeal an interlocutory decision dismissing a motion that complained about a Dispute Resolution Officer (DRO).

The court dismissed the appeal under Rule 2.1.01 of the Rules of Civil Procedure as frivolous, vexatious, and an abuse of process, noting that DROs do not make orders and the appellant failed to seek leave to appeal the interlocutory decision.

The respondent mother brought a motion to compel the parties' 14-year-old children to attend in-person schooling.

The applicant father brought a cross-motion seeking an order that the children be permitted to receive the COVID-19 vaccine and that the mother provide their health cards.

The court found that in-person schooling and vaccination were in the children's best interests.

Applying the Health Care Consent Act and the mature minor doctrine, the court held that the children were capable of consenting to the vaccine without parental consent.

The court ordered the mother to provide the health cards and directed that the children attend in-person learning following their first vaccine.

The respondent mother brought a motion for temporary shared parenting, child support, and spousal support.

The applicant father initially opposed overnight parenting time but later agreed to a shared schedule.

The court ordered a 2-2-5-5 shared parenting schedule.

On the issue of support, the father argued the mother's income should be imputed at $80,000 based on her recent earnings as a virtual sex worker.

The court declined to impute this income on public policy grounds, as doing so would effectively compel her to remain in the sex trade, and instead imputed part-time minimum wage income of $14,000.

The father was ordered to pay interim child support of $1,143 per month and interim spousal support of $850 per month.

The defendants (purchasers) brought a motion for summary judgment against the plaintiff (builder/vendor) for the return of their deposit and damages following a failed real estate transaction.

The plaintiff had elected to affirm the Agreement of Purchase and Sale after an anticipatory repudiation by the defendants, keeping the closing date alive.

On the closing date, the defendants tendered the closing funds, but the plaintiff failed to provide a substantially completed home ready for occupancy.

The court found the plaintiff in fundamental breach of the agreement, entitling the defendants to terminate the contract.

The defendants were awarded the return of their $55,000 deposit and $25,000 in damages for the costs of borrowing the closing funds.

The appellant appealed his conviction for driving with a blood alcohol level exceeding 80 mg/100 mL.

He argued that his breath samples were not taken 'as soon as practicable', that the Crown could not rely on the repealed 'presumption of identity' provision, and that his s. 10(b) Charter right to counsel was violated when he was denied a second call to his own lawyer after speaking with duty counsel.

The Superior Court of Justice dismissed the appeal, finding no error in the trial judge's conclusion that the breath tests were conducted within a reasonable time, that the presumption of identity continued to apply to pre-amendment offences, and that the appellant's dissatisfaction with duty counsel did not trigger a right to a second consultation.

The appellant appealed his conviction and 30-day sentence for failing to comply with a house arrest condition of his recognizance.

During a bail compliance check, police were informed by the surety and his wife that the appellant was not home, and the appellant did not present himself during the 35-minute visit.

The summary conviction appeal court upheld the trial judge's finding that the only reasonable inference from the circumstantial evidence was that the appellant was not home.

The court also found that the subjective mens rea requirement was met and that the 30-day custodial sentence was fit.

The appeal was dismissed.

The applicant brought a motion to have the respondent declared a special party under the Family Law Rules and to appoint the Public Guardian and Trustee as his representative.

The respondent opposed the motion, claiming the separation was temporary and due to complex criminal conspiracies against him.

The court found the respondent incapable of understanding the legal issues or representing himself due to his delusions, declared him a special party, and appointed the PGT.

The applicants brought an application seeking a declaration of a 25% equitable ownership interest in a property based on an alleged oral agreement.

The respondents denied the agreement.

At the hearing, the parties jointly requested an adjournment to conduct cross-examinations on affidavits.

The court questioned whether the matter should proceed by application given the fundamental factual dispute, but allowed it to continue as an application on consent, noting it is functionally similar to a summary judgment motion and the hearing judge will ultimately determine if the record is sufficient to resolve the dispute.

The plaintiffs, unpaid contractors on a home building project, brought a motion in two related actions for four orders: to transfer one action from Toronto to Newmarket, to amend their statements of claim to add defendants and allege fraudulent conveyances, to register certificates of pending litigation (CPLs) on the impugned properties, and for summary judgment against the corporate builder.

The court granted the venue transfer and summary judgment on consent.

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

However, the court dismissed the motion for CPLs, concluding that the plaintiffs' evidence regarding the fair market value of the properties was methodologically flawed and failed to establish a prima facie case of intent to defeat creditors.

The moving party brought a motion to set aside the registration of an Australian child support order under the Interjurisdictional Support Orders Act, 2002.

The moving party failed to serve the Ontario Interjurisdictional Support Orders Unit (the designated authority) as required by section 20(3) of the Act and Rule 37(20)(c) of the Family Law Rules.

The court dismissed the motion without prejudice, allowing the moving party 20 days to recommence the motion and properly serve the designated authority, while extending a temporary stay of enforcement.

The applicant sought leave to bring an urgent motion for the partition and sale of the matrimonial home and interim spousal support prior to a case conference.

The applicant argued she faced financial hardship and needed funds to secure her own housing, as she could not stay with her parents indefinitely.

The court dismissed the motion, finding that the circumstances did not rise to the level of urgency or undue hardship required under Rule 14(4) of the Family Law Rules, noting the parties had been separated for nearly two years before the application was commenced.

The self-represented plaintiff sued his neighbor (the landlord) and two real estate brokerages for $3,000,000, alleging that the tenants placed in the neighboring property engaged in criminal activities that caused him fear and caused a former co-plaintiff to suffer a stroke.

The defendants moved to strike the statement of claim.

The court granted the motion, finding that real estate agents owe no duty of care to a neighboring resident who is a stranger to the real estate transaction.

The court also found that the claim against the landlord failed to plead any material facts establishing negligence or knowledge of the alleged criminal activities, and that the plaintiff failed to plead any damages suffered by himself.

The plaintiff brought a motion to strike the defendants' jury notice in a personal injury action.

Due to the COVID-19 pandemic, civil jury trials in the Central East Region were suspended until well into 2022.

The court granted the motion, finding that the prejudice to the plaintiff caused by further delay outweighed the defendants' right to a jury trial, especially given the age of the case and previous adjournments.