Robert E. Charney

The respondent brought an urgent motion seeking an order for the applicant to post security for costs of $75,000, citing the applicant's impending house sale and alleged non-compliance with previous orders.

The court dismissed the urgency motion, finding that a motion for security for costs was not urgent given the suspension of trials and that the purpose of security for costs is to secure future legal costs, not to provide "execution before judgment" for other alleged debts.

The court clarified that the inability to post security for costs primarily disadvantages the party ordered to provide it, not the moving party at this preliminary stage.

The appellant appealed the dismissal of her medical malpractice action against an oculoplastic surgeon regarding cosmetic eyelid surgeries.

She alleged the trial judge erred in his findings on standard of care, informed consent, and the qualification of the respondent's expert witness.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or his preference for the respondent's expert evidence.

The court also dismissed the appellant's motion to adduce fresh evidence, as it did not meet the Palmer test.

The plaintiff's action for damages from a motor vehicle accident was dismissed after a jury award for lost income and general damages was netted to zero due to deductions for income replacement benefits and the statutory deductible.

The defendants, being wholly successful, sought partial indemnity costs of $160,000.

The plaintiff argued costs should be limited to her $100,000 adverse costs insurance policy and that the defendant's settlement offers were unreasonable.

The court found adverse costs insurance irrelevant and the defendant's settlement offers reasonable, fixing costs at $160,000 inclusive of disbursements and HST, payable by the plaintiff.

This decision addresses a procedural tangle involving two related self-represented proceedings: an action (Hydroslotter Action) and an application (Hydroslotter Application).

The plaintiff in the action brought a motion to strike the defendants' Statement of Defence and Counterclaim and for a finding of contempt due to non-compliance with disclosure orders.

The court dismissed the motion to strike and for contempt, finding that while the defendants' compliance was imperfect, they had made efforts, and the proportionality of the requested disclosure needed further assessment.

Instead, the court ordered cross-examination on affidavits of documents and resubmission of a document list in proper format.

Regarding the Hydroslotter Application, which sought declarations of defamation and significant damages, the court ruled that a tort action for damages cannot be commenced by application, particularly when material facts are in dispute and general or punitive damages are sought.

Consequently, the application was ordered to be converted into an action, with parties to comply with the Rules of Civil Procedure for actions.

No costs were awarded, as the plaintiff/applicants were largely unsuccessful.

The defendant moved to set aside a default judgment and associated writs of execution, arguing improper service and that the credit card debts were corporate, not personal.

The court found the defendant was not properly served, thus setting aside the default judgment and noting in default.

However, the court dismissed the motion to lift the writs of execution, finding the defendant's proposed defence lacked an "air of reality" and that maintaining the security was necessary to preserve the integrity of the administration of justice given the weak merits of the defence and the defendant's delay.

The defendants brought a motion to set aside an order striking their Statement of Defence and Counterclaim and a default judgment, arguing their failure to appear was due to their former lawyer's negligence and mental health issues.

The court applied Rule 37.14 and Rule 19.08 of the Rules of Civil Procedure, finding that the defendants' failure to appear was an "accident or mistake" attributable to their lawyer, and that the delay in bringing the motion was excusable given the circumstances.

The court emphasized that the "sins of the lawyer should not be visited upon the client" and that the defendants had a meritorious defence.

The motion was granted, setting aside both orders, conditional on payment of substantial indemnity costs to the plaintiff.

The Armor defendants brought a motion to consolidate a construction lien action (Pentad v. Armor defendants) with a related bond action (Armor v. Echelon Insurance), and to transfer the bond action from Toronto to Newmarket.

The court found that while the actions shared common questions of law and fact, consolidation was not appropriate due to limitations under the Construction Lien Act, which applied to the lien action and restricted the consolidation of lien and non-lien actions and the addition of third-party defendants by counterclaim.

Instead, the court ordered the bond action to be transferred to Newmarket and both actions to be heard at the same time or one immediately after the other, with common discoveries, to avoid inconsistent findings.

The applicant sought an order for the partition and sale of the matrimonial home.

The respondent opposed this and brought a cross-motion for exclusive possession, retroactive child and spousal support, and an order to include pre-marriage co-habitation in pension valuation.

The court granted the applicant's motion for partition and sale, finding that the respondent's arguments for delaying the sale, including the children's attachment to the home and the "joint family venture" claim, were insufficient to defeat the prima facie right to sale.

The respondent's motion for exclusive possession was dismissed, but other aspects of her cross-motion were preserved for future determination.

The court ordered the matrimonial home to be listed for sale with a closing date not before June 26, 2020, and for a portion of the proceeds to be held in trust.

The applicant and respondent disputed the date of separation, the respondent's date of marriage assets, and the respondent's income for child support purposes.

The court determined the date of separation to be July 3, 2014, when joint marriage counselling ended and there was no reasonable prospect of resuming cohabitation.

The court rejected the respondent's claim of a $200,000 date of marriage asset due to lack of evidence.

Finally, the court imputed an annual income of $75,000 to the respondent for child support, finding him intentionally under-employed.

The respondent was ordered to pay equalization and post-separation adjustments.

The respondents, the applicant's former spouse and his father, brought motions for summary judgment to determine the validity of a $950,000 mortgage registered against a property owned by the former spouse.

The applicant argued the mortgage was a sham designed to defeat her equalization claim.

The court found that the father had advanced the funds to construct a home on the property and that the applicant had not signed the mortgage acknowledgment under duress.

The court granted partial summary judgment, declaring the mortgage valid and ordering the release of $950,000 from the sale proceeds to the father.

The defendants brought a motion seeking to exclude the plaintiff from the examination for discovery of the defendant C.H., who alleged sexual assault by the plaintiff when C.H. was a minor.

The plaintiff denied the allegations and opposed exclusion, asserting his right to be present.

The court, considering medical evidence of C.H.'s distress and drawing parallels to testimonial accommodations in criminal law (e.g., Criminal Code s. 486.2), ordered a testimonial accommodation.

C.H. was to be examined in a separate room, with the plaintiff observing via closed-circuit television.

The court clarified that such accommodation does not imply an admission of guilt and that the additional costs would be borne by the defendants.

The plaintiff sought damages for injuries sustained in a 2010 motor vehicle accident.

Following a jury trial, the trial judge ruled on the questions to be put to the jury and the defendants' threshold motion.

The judge declined to put questions on future health care costs and loss of competitive advantage to the jury due to insufficient evidence and risk of double recovery.

On the threshold motion, the judge held that a psychologist does not qualify as a 'physician' under s. 4.3 of O. Reg. 461/96.

Furthermore, the judge found that the plaintiff failed to prove she sustained a permanent serious impairment of an important physical, mental, or psychological function, noting her successful return to school and employment.

The defendants' motion to dismiss the claim for non-pecuniary damages was granted.

The applicant mother sought retroactive and ongoing child and spousal support, arguing the respondent father's income should be imputed at $100,000 due to an alleged cash business.

The court found no evidence to support imputing $100,000 but imputed an income of $54,000 based on the respondent's earning capacity as a swim instructor.

The court ordered retroactive child support to the date of separation and retroactive spousal support to the date of the application.

Ongoing spousal support was terminated at the end of 2019 as the applicant had completed her education and could obtain employment.

The court also ordered joint custody and adopted the respondent's proposed access schedule.

The plaintiffs obtained an ex parte Mareva injunction freezing the assets of the defendant, a former senior manager who allegedly misappropriated funds and started a competing business.

On the return of the motion, the court reviewed the evidence de novo.

The court found that the plaintiffs failed to establish a strong prima facie case of fraud, as the defendant provided reasonable explanations for the impugned credit card charges and tax defaults.

Furthermore, the defendant's decision to sell his home was made prior to being served with the claim and was for the purpose of downsizing, not dissipating assets.

The Mareva injunction was set aside.

Following divided success on multiple family law motions, both parties sought costs.

The mother sought full recovery of $73,845 based on an offer to settle, while the father sought partial indemnity of $10,971.

The court found that while success was evenly divided, the mother was entitled to some costs because two severable paragraphs of her offer to settle were as favourable as the order obtained.

The court awarded the mother $6,000 in costs, offset by her share of the costs for cross-examining an expert witness, resulting in a net award of $4,566.

The court also clarified a previous order regarding the father's spring break access.

The defendant property owner brought a motion under s. 47 of the Construction Lien Act to discharge a claim for lien registered by the plaintiff adjacent landowner.

The court found that while there were triable issues regarding whether the plaintiff was a 'contractor' and the previous owner an 'owner' under the Act, the lien was not preserved within the strict 45-day time limit under s. 31.

The evidence showed the contract work was completed more than a year before the lien was registered.

The motion was granted and the lien discharged.

The plaintiff brought a motion to bifurcate a motor vehicle accident trial, strike the jury notice, and bar a defence medical examination.

The defendant cross-moved to compel the medical examination.

The court granted leave under Rule 48.04 for both parties to bring their motions.

The court dismissed the motion to bifurcate, finding it lacked jurisdiction under Rule 6.1.01 because the defendant had withdrawn its consent.

The court ordered the plaintiff to attend the defence medical examination to ensure trial fairness.

The motion to strike the jury notice was dismissed based on the 'wait and see' approach, as it was premature to determine if the jury would be prejudiced by the plaintiff suing her deceased husband's estate or confused by the engineering evidence.

Despite the defendant's success on the motions, costs of $5,000 were awarded to the plaintiff because the motions were necessitated by the defendant's late withdrawal of consent to bifurcation.

The plaintiff brought a motion to turn a second action against his real estate agents into a third party proceeding in his main action against the vendors for a failed real estate transaction, or alternatively to consolidate the actions.

The defendants opposed, arguing the motion was premature and should wait until their summary judgment motions were heard.

The court granted the plaintiff's motion, finding that leave to issue a third party claim is mandatory unless prejudice results, and the defendants would not be prejudiced by correcting the procedural error of commencing a separate action.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action, which sought $14 million in damages for various torts including fraud, breach of confidence, and conspiracy.

The plaintiff alleged the defendants conspired with the Canada Revenue Agency to falsely accuse him of tax evasion, leading to his wrongful conviction, and illegally transferred his Teraview software license.

The court granted the motion, finding the software claims were barred by the two-year limitation period under the Limitations Act, 2002.

The remaining claims, characterized as malicious prosecution, failed because the proceedings were initiated by the CRA and resulted in the plaintiff's conviction, not a termination in his favour.

The parties, engaged in high-conflict family litigation, brought multiple motions regarding the parenting schedule, school choice, and a request for a second section 30 assessment.

The mother sought to reduce the father's 14-day consecutive summer vacation and requested a new assessment, citing the child's emotional distress and the father's alleged interference with communications.

The father sought to de-register the child from a Hebrew school, claiming newly discovered Mi'Kmaq heritage, and requested decision-making authority over education.

The court found that the birth of the child's half-sibling constituted a material change in circumstances, justifying an interim variation to provide the mother with alternating weekends and summer vacation time to foster sibling bonding.

However, the court upheld the father's 14-day vacation, dismissed his motion regarding school choice as the mother had sole decision-making authority, and declined to order a costly second section 30 assessment.