Robert E. Charney

The defendant brought a motion under Rule 37.14(1)(b) of the Rules of Civil Procedure to set aside a summary judgment order, arguing he was unable to attend the hearing for health reasons.

The court dismissed the motion, finding that Rule 37.14(1)(b) does not apply where a party requests an adjournment that is denied, but rather only when a party fails to appear.

The dismissal was without prejudice to the defendant's right to bring a motion under Rule 59.06(2)(a) based on fresh evidence before the original motion judge.

The applicant brought a motion for interim exclusive possession of the matrimonial home, where she also operated a home-based business.

She alleged the respondent was violent and disruptive to her practice.

The respondent denied the allegations and claimed a constructive trust interest in the home.

The court dismissed the motion, finding the allegations of post-separation conduct did not rise to the level of violence under section 24(3) of the Family Law Act, and that the applicant's desire to use the home for business could not trump the respondent's right to use it as a residence.

The plaintiff was employed by the corporate defendant and was in a common-law relationship with its sole director.

Following their separation, the director terminated the plaintiff's employment, withheld her wages, and transferred the corporation's assets to a related company to render it judgment-proof.

The plaintiff brought a motion for default judgment.

The court pierced the corporate veil under the Business Corporations Act, holding the director personally liable for the oppressive conduct.

The plaintiff was awarded damages for unpaid wages, 12 months' pay in lieu of notice, and aggravated damages for the bad faith manner of dismissal.

The applicant sought to retroactively vary a 2003 ex parte child support order from Alberta, which had deemed his income at $43,000 and resulted in nearly $49,000 in arrears.

The applicant provided evidence of a prolonged period of severe drug addiction, homelessness, and incarceration, which prevented him from responding to the original order or seeking a variation sooner.

The court found this constituted a material change in circumstances justifying a retroactive variation.

The court recalculated the arrears based on the applicant's actual income, imputing minimum wage for years where his income fell below that threshold, reducing the total arrears to $8,531.44.

The plaintiff brought a motion to compel the defendant to file a statement of defence.

The defendant brought a cross-motion to compel the plaintiff to answer a 91-question Demand for Particulars before filing the defence.

The court found that the defendant already had sufficient information to plead, as evidenced by a previously filed draft statement of defence, and that most of the demanded particulars were either already in the statement of claim or within the defendant's knowledge.

The court ordered the plaintiff to answer only one demand regarding specific statutory provisions relied upon, and ordered the defendant to file his statement of defence within 20 days thereafter.

The applicant brought a motion for the sale of the jointly owned matrimonial home.

The respondent opposed the sale and brought a cross-motion for exclusive possession and an order transferring the home to their adult son for a fixed price.

The court granted the applicant's motion, finding that the applicant had a prima facie right to sale and the respondent failed to establish a reasonable need to delay the sale for the benefit of the adult children.

The court also dismissed the cross-motion to transfer the home to the son, noting it lacked jurisdiction to compel a sale to a specific party or grant a right of first refusal.

The applicant child protection agency sought a temporary order placing two children in the care of their maternal grandparents, citing concerns about the parents' mental health and historical conflict.

The respondent mother opposed the motion, seeking the return of the children to her care subject to agency supervision.

The court found that the agency failed to establish reasonable grounds to believe the children would suffer harm if returned to the mother under supervision, noting that the parents had separated and the agency relied heavily on the grandmother's uncorroborated statements.

The children were ordered returned to the mother with conditions.

The applicant, a minority shareholder, brought a motion to strike certain paragraphs from the respondent's affidavit in an oppression application.

The court struck paragraphs containing legal argument and conclusions, finding them inappropriate for an affidavit.

However, the court deferred the decision on paragraphs challenged for relevance and character impugnment to the judge hearing the main application, emphasizing that relevance is best assessed in the full context of the application.

The plaintiff sued the defendant for $175 million, alleging that 2,966 imported vehicles were damaged by severe winter weather while stored at the defendant's facility.

The plaintiff recalled all vehicles and sought to destroy them, while the defendant sought an order to preserve the vehicles for inspection.

The Master ordered the defendant to assume the $10,000 daily storage costs if it wished to preserve the vehicles.

On appeal, the Superior Court reversed this, finding the plaintiff had a prima facie obligation to preserve evidence.

The Divisional Court allowed the plaintiff's appeal, holding there is no general prima facie duty to preserve property under Rule 45.01, and restored the Master's order requiring the defendant to pay storage costs if it elects to preserve the vehicles.

The defendant brought a motion to set aside a summary judgment of $50,000 obtained by the self-represented plaintiff.

The defendant argued that the summary judgment motion proceeded without proper notice to her or her counsel.

The court found that the plaintiff failed to provide the defendant's lawyer with notice of the return date for the summary judgment motion.

The court granted the motion and set aside the summary judgment, allowing the defendant an opportunity to have her defence dealt with on the merits.

The applicants sought an order for vacant possession of a property from the respondents.

The property was originally owned by the respondent Mario Lograsso and his then-spouse (applicants' daughter), but was sold to the applicant Maria Azevedo in 2005 to avoid foreclosure.

The applicants allowed the respondents to live there rent-free.

After Mario and Nancy separated, the applicants sought to regain possession.

The respondents argued the property was a matrimonial home under the Family Law Act (FLA) and that they were tenants under the Residential Tenancies Act (RTA).

The court found that neither Mario nor Nancy had a proprietary interest in the property since 2005, thus precluding a matrimonial home claim against the applicants.

Furthermore, the RTA did not apply due to the shared facilities exemption (s. 5(i)), as the respondents initially shared facilities with the owners' daughter.

The court granted the application for vacant possession and awarded costs to the applicants.

The applicants sought a declaration that they were entitled to $400,000 in deposits from a failed real estate transaction after the respondent purchaser repeatedly failed to close and sought multiple adjournments.

The court denied the respondent's last-minute adjournment request, found the respondent in breach of the Agreement of Purchase and Sale, and declared the applicants entitled to the full deposit amount, noting it was not disproportionate or unconscionable given the circumstances and extensions granted.

The applicant, Sarkis Mirzoyan, sought certiorari to quash two decisions of a provincial court judge who had dismissed his request for an "administrative transfer of venue" from York Region to Toronto.

Mirzoyan argued that only the Chief Justice of the Ontario Court of Justice had jurisdiction for such a transfer under the Courts of Justice Act.

The Superior Court dismissed the application for certiorari, finding that there is no legislative or procedural mechanism for an accused to seek an "administrative transfer of venue" from the Chief Justice.

The court clarified that such requests are not true administrative transfers but rather akin to s. 599 Criminal Code change of venue applications, which were premature in this case as no election for mode of trial had been made.

The respondent, Robert Monteith, brought a motion to set aside two consent orders: a sealing order and a 'no-settlement order' that restrained the parties from settling an action involving Monteith Mineralized Solutions Inc. (MMS) against Agrium.

The applicant, Brian Sherman, consented to setting aside the sealing order but opposed setting aside the no-settlement order.

The court found that the no-settlement order, which had been in place for six years and led to a stay of the MMS action, was contrary to the overriding public interest in favour of settlement and had a direct impact on the administration of justice.

The motion to set aside both consent orders was granted.

The defendants brought a motion to dismiss the action for delay under Rule 24.01(1) of the Rules of Civil Procedure, citing the plaintiffs' two years of inaction and failure to respond to correspondence.

The plaintiffs argued the defendants were in default for not delivering affidavits of documents and offered an explanation for their delay.

The court found the defendants were not in default due to rule amendments and rejected the plaintiffs' explanation as incredible.

However, the court declined to dismiss the action, noting that "contumelious" delay typically requires serial violations of court orders, which was not present.

The motions were dismissed without prejudice, but the plaintiffs were ordered to pay $11,000 in costs to the defendants and to deliver their affidavit of documents within 30 days, with defendants to follow 30 days thereafter.

The accused, Prasath Thanigasalam, sought a bail review under s. 520 of the Criminal Code after being detained on secondary grounds due to multiple breaches of prior recognizances.

The reviewing judge found no error in the Justice of the Peace's initial decision regarding the application of secondary grounds or sufficiency of reasons.

However, the accused's new proposal to wear a GPS ankle bracelet, with his parents agreeing to cover the costs, constituted a material change in circumstances.

This new evidence addressed the Justice of the Peace's primary concern about the accused's compliance.

Consequently, the application for bail review was allowed, and the accused was released on strict conditions including house arrest, a $75,000 surety, and mandatory GPS monitoring.

The defendant Belfor moved for a declaration that audio recordings made by the plaintiff of conversations with its former lawyers were not subject to solicitor-client privilege, arguing deemed or implied waiver due to inadvertent disclosure and the plaintiff's state of mind being in issue.

The court dismissed the motion, finding no deemed waiver as legal advice was not material to the claim, and no implied waiver despite counsel's delay, emphasizing that privilege belongs to the client and no unfairness would result from its maintenance.

This decision addresses two related applications concerning the guardianship of Jiefu Kwok, who suffered a traumatic brain injury.

Derrick Kwok, Jiefu's son, applied to terminate his appointment as guardian for property and person, citing strained relations and difficulties in management.

Ellie Kwong, Jiefu's separated spouse, applied to be appointed as guardian in Derrick's place, with Derrick's support.

The Public Guardian and Trustee (PGT) requested the appointment of legal counsel for Jiefu Kwok under s. 3 of the Substitute Decisions Act, 1992, arguing that his capacity might have improved or that his wishes needed independent ascertainment, despite a prior court order of incapacity.

The court dismissed the PGT's request, finding it unnecessary and a waste of resources given the lack of dispute between family members, consistent medical evidence of Jiefu Kwok's continued incapacity, and Jiefu Kwok's expressed consent to Ellie Kwong's appointment in court.

Both applications for guardianship change were allowed.

In a medical malpractice action, the defendant brought a motion to disqualify the plaintiffs' expert epidemiologist, Dr. Michael Freeman.

The court granted the motion, finding that Dr. Freeman lacked specialized knowledge in the specific medical areas (metabolics and neurology) relevant to the causation question.

His "comparative risk" methodology was deemed outside the mainstream study of epidemiology for specific causation, and his reports indicated a lack of objectivity by primarily critiquing other experts rather than offering independent analysis within his own expertise.

The court also noted that his proposed evidence was not necessary, as the plaintiffs' other expert covered the same points.

The defendant in a medical malpractice action brought a motion at the outset of trial to strike the plaintiffs' jury notice.

The defendant argued that the complex scientific evidence relating to the minor plaintiff's rare metabolic disorder and the issue of causation made the case unsuitable for a jury.

Applying the principles from Kempf v. Nguyen, the court declined to strike the jury notice prior to trial, opting instead for the preferred 'wait and see' approach.

The motion was dismissed with leave to renew after the evidence is completed.