Robert E. Charney

The moving parties sought leave to appeal the order of Sweeny R.S.J. dated May 26, 2023.

The Divisional Court dismissed the motion for leave to appeal without costs.

The moving party, Vince Demasi, brought a motion for leave to appeal the order of Bird J. dated April 4, 2023.

The Divisional Court dismissed the motion for leave to appeal without costs.

Following a decision in which the applicant was successful, he sought costs of $23,740 on a substantial indemnity basis, relying on a Rule 49 offer to settle.

The court found that because the respondent's retained interest in the property was contingent, it could not be definitively determined that the judgment was more favourable than the $25,000 offer.

The court awarded partial indemnity costs fixed at $17,400, noting the respondent failed to file any costs submissions despite extensions.

The defendants brought a motion requiring the self-represented plaintiff to post security for costs.

The plaintiff resides in China, has no assets in Ontario, and has over $1,000,000 in unpaid judgments from other proceedings.

The court granted the motion, ordering the plaintiff to pay $100,000 in installments.

The court also awarded costs thrown away to one defendant for a motion to strike necessitated by the plaintiff's delay in filing a Notice of Intention to Act in Person.

The plaintiff, a corporate builder, brought a motion for summary judgment against one of the purchasers for damages arising from a failed real estate transaction.

The plaintiff sought damages based on the difference between the agreed purchase price and an appraised value, rather than the typical resale price.

The court dismissed the motion, finding that the plaintiff's affidavit evidence was insufficient and raised too many unanswered questions regarding the subsequent non-arm's length sale of the property and the plaintiff's mitigation efforts.

The court emphasized the moving party's obligation to 'put their best foot forward' and provide clear evidence for damage calculation.

The tenant filed a notice of appeal from a consent eviction order issued by the Landlord and Tenant Board.

The Divisional Court quashed the notice of appeal, noting that under section 133(a) of the Courts of Justice Act, an appeal from a consent order requires leave of the court.

The court granted the tenant an extension to bring a motion for leave to appeal and ordered a conditional stay of the eviction order, provided the tenant pays her monthly rent and arrears within 30 days.

The court also ordered that the motion for leave and the merits of the appeal be heard together.

The tenants appealed an interlocutory decision of the Landlord and Tenant Board that dismissed their motion for a voiding order without notice to the landlords.

The Divisional Court held that the Residential Tenancies Act does not confer a right of appeal from interlocutory orders.

The tenants' notice of appeal was quashed, and the statutory stay of the LTB endorsement was terminated, with the tenants granted an extension to seek leave to appeal.

Sentencing for human trafficking, material benefit, and procuring offences arising from the exploitation of two complainants in the sex trade, including one complainant under 18 years of age.

The court emphasized denunciation and deterrence, adopted a four-to-eight-year trafficking range, rejected the defence position that immigration consequences justified an artificially reduced custodial disposition, and held that a conditional sentence was unavailable and inappropriate.

The court also rejected a Kienapple argument because trafficking and procuring targeted distinct wrongs, and granted limited mitigation for restrictive bail conditions under Downes.

A global sentence of four years was imposed, reduced to 43 months after pre-trial custody and bail-condition credit, together with non-communication, DNA, and SOIRA orders.

The applicant, Simon Bridle, sought an O'Connor order for the production of third-party records (communications of Detective Inspector Patton of the Ontario Provincial Police) to support an allegation of improper preparation and communication by the police witness in prior pre-trial applications.

The court dismissed the application at Stage 1 of the O'Connor test, finding that the records were not likely relevant to any issue at trial, as DI Patton was not expected to testify at trial and her credibility was not a live issue.

The court also found the applicant's assertions of improper conduct to be speculative and based on misinterpretations of the cross-examination transcript.

The tenant appealed a consent eviction order issued by the Landlord and Tenant Board, arguing she did not actually consent and that the order lacked a mandatory voiding clause.

The Divisional Court quashed the notice of appeal because section 133(a) of the Courts of Justice Act requires leave to appeal a consent order, even when the validity of the consent is disputed.

The court granted the tenant an extension of time to bring a proper motion for leave to appeal and stayed the eviction order on the condition that the tenant pay rent arrears and ongoing monthly rent.

The tenant appealed a Landlord and Tenant Board (LTB) decision that resulted in her eviction for rent arrears.

The eviction was executed by the Sheriff before a stay was in place, and the landlord subsequently re-rented the unit to a new tenant.

The Divisional Court held that it could not restore the tenant to the unit or order the landlord to provide a different unit.

The court also dismissed the tenant's arguments regarding multiplicity of proceedings, issue estoppel, loss of jurisdiction, and procedural fairness, finding that the LTB's distinct processes for persistent late payment and non-payment of rent were appropriate and fair.

The appeal was dismissed.

The defendant, Dr. Simon Lin, brought a motion for summary judgment in a dental malpractice action.

The plaintiff, Sharon Shyn Ang, alleged negligence in administering excessive local anesthetic and causing dental damage.

The court granted summary judgment, dismissing the action, on the grounds that the plaintiff failed to provide admissible and persuasive expert evidence to establish a breach of the standard of care or causation.

The plaintiff's expert report was inadmissible as it was not in affidavit form and the expert was not qualified to opine on the standard of care in Ontario.

The applicant transferred his home into joint tenancy with the respondent, his deceased partner's great-niece, to avoid probate fees.

He later severed the joint tenancy and sought a declaration of resulting trust.

The respondent claimed the transfer was a gift and alleged a mutual will agreement.

The court found the applicant gifted the right of survivorship but retained all beneficial interest during his lifetime.

The court held the applicant was entitled to sever the joint tenancy, converting it to a tenancy in common.

The respondent holds her 50% interest on resulting trust for the applicant during his lifetime, but retains the right of survivorship for that 50% upon his death.

The mutual will claim was dismissed.

The plaintiff, Rosetta Conte, sought to enforce a 2010 default judgment against Gerald Pettle by claiming a beneficial interest in properties held by his deceased wife, Susan Pettle, and alleging fraudulent conveyance.

The court found no fraudulent conveyance of real property or resulting trust regarding the properties themselves, as they were always registered in Susan's name and Gerald did not contribute to the original purchase.

However, the court found that Gerald's cash transfers to Susan after the 2010 judgment constituted fraudulent conveyances of personal property under the Fraudulent Conveyances Act, intended to defeat creditors.

The court attributed $217,000 of unidentified funds in Susan's accounts to these fraudulent transfers and declared them void against the plaintiff, allowing execution against Susan's estate.

The claim was not statute-barred as the two-year limitation period for personal property fraudulent conveyances ran from discovery, which occurred within two years of the action's commencement.

This motion addressed whether a party (Yan Jun Li) could examine other parties (Jiapeng Zhou and Lihui Gu) who had not sworn affidavits in support of a consolidation motion.

The court clarified that the right to examine a witness under Rule 39.03 of the Rules of Civil Procedure is not automatic and requires demonstrating that the evidence sought is relevant, obtainable from the witness, and necessary for the motion.

The court found that the questions Li sought to ask, pertaining to common questions of fact or law or transactional nexus for consolidation, were matters of legal argument based on pleadings, not factual evidence from the parties.

Consequently, the Notices of Examination served on Jiapeng Zhou and Lihui Gu were quashed.

The court also granted an indulgence to Li's counsel to cross-examine Caitlyn Reid, despite previous non-compliance with the timetable.

Costs were awarded to Zhou and Gu.

This case addresses a mother's (N.F.) cross-motion to relocate with her child from Barrie to Orangeville, opposed by the father (S.G.).

The court determined the move constituted a "relocation" under the Children's Law Reform Act, requiring 60 days' notice, which the mother failed to provide.

Despite the notice deficiency, the court found the relocation to be in the child's best interests, considering the mother's economic necessity, the availability of family support in Orangeville, and the child's young age.

The court ordered a new parenting schedule, granting the mother primary residence in Orangeville starting September 2023, with the father having three weekends per month and one mid-week overnight.

The Regional Municipality of York brought a motion for a limited permanent sealing order on consent over proprietary information submitted by two bidders during a competitive procurement process for public transportation services.

The court applied the three-part test from Sherman Estate and found that court openness posed a serious risk to the important public interest of maintaining the integrity of future procurement processes.

The court granted the sealing order, concluding that the benefits of protecting the commercially sensitive information outweighed the negative effects on court openness.

The appellant physician appealed a decision of the Ontario Physicians and Surgeons Discipline Tribunal finding him guilty of professional misconduct and incompetence.

The Tribunal found the appellant failed to maintain the standard of practice by treating cancer patients with unproven complementary and alternative medicine (CAM) therapies, failing to obtain informed consent, and improperly billing OHIP for palliative care.

The Divisional Court dismissed the appeal, finding no errors of law, no procedural unfairness, and that the Tribunal's factual findings were well-supported by the evidence.

The Richmond Hill Zone Hockey Association (RHZHA) sought an urgent interlocutory injunction against the Ontario Minor Hockey Association (OMHA) and the Ontario Hockey Federation (OHF).

The RHZHA aimed to prevent the OMHA from dissolving its AAA Level hockey zone and to compel the OHF to reopen its application to transfer membership to the Greater Toronto Hockey League (GTHL).

The court dismissed the motion, finding that while the RHZHA would suffer irreparable harm, much of it had already occurred due to delay.

The court also determined that the balance of convenience favored the OMHA's decision to consolidate zones for the overall benefit of minor hockey, and that the Hockey Canada National Appeals Committee's adverse decision on the OHF's policy interpretation weakened the applicant's case for a mandatory injunction.

The appellant lawyer appealed a decision of the Law Society Tribunal Appeal Division, which upheld a finding of professional misconduct for failing to reply promptly and completely to Law Society communications.

The appellant argued she was denied procedural fairness, received ineffective assistance from duty counsel, and that the adjudicator made improper credibility findings and misapplied the test for misconduct.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Tribunal's factual and credibility findings, and concluding that the appellant had waived any procedural fairness concerns by electing to proceed with the hearing rather than seeking an adjournment.