Robert J. Nightingale

The defendant moved under r. 21.01(3)(d) to strike the plaintiff's second summary judgment motion seeking damages for loss of value of a property arising from a failed real estate transaction, arguing the claim was barred by res judicata and constituted an abuse of process.

A prior summary judgment by Goodman J. had awarded the plaintiff partial damages but dismissed the loss-of-value claim for failure to adduce proper expert valuation evidence.

The court found that both issue estoppel and cause of action estoppel applied, as the same issue had been decided in the prior final proceeding between the same parties.

The court also rejected the plaintiff's argument that r. 20.07 permitted a fresh claim for the same head of damages previously dismissed, holding that the rule applies only to relief not covered in the original motion.

The defendant's motion was granted and the plaintiff's second summary judgment motion was dismissed with costs of $7,500.

The plaintiff sued her former lawyer for negligence and breach of contract arising from an allegedly improvident settlement of her accident benefits claim in May 2014.

The plaintiff claimed the lawyer failed to advise her adequately regarding income replacement benefits, failed to discourage her from settling prematurely, and failed to advise her of the potential for catastrophic impairment designation which would have entitled her to significantly enhanced benefits.

The court found that while the lawyer breached the standard of care in several respects, the plaintiff failed to establish causation because she did not prove she would have acted differently with proper advice.

Additionally, the plaintiff failed to mitigate her damages by not attempting to set aside the settlement when she became aware of the defect.

The court also found the plaintiff failed to establish that she would have been found catastrophically impaired.

The action was dismissed.

The defendants brought a motion to dismiss the plaintiff's professional negligence and negligent misrepresentation claims as frivolous, vexatious, or an abuse of process under Rule 21.01(3)(d).

The plaintiff, a suspended lawyer, alleged negligent legal advice and breach of professional obligations by the defendants in defending him against a civil contempt application, which resulted in a jail sentence.

The court found that the plaintiff's action constituted an impermissible collateral attack on prior court orders that had already established his contempt.

The court accepted the defendants' evidence regarding the limited scope of their retainer and dismissed the plaintiff's claims, including a claim for recovery of legal fees, which the court suggested should be pursued under the Solicitors Act.

The plaintiff, as estate trustee, moved for summary judgment against defendant Emanuel Cabral for damages arising from his failure to close an agreement of purchase and sale for the estate's property.

Defendant Sherif Behiry was noted in default.

The court found that the defendant Cabral breached the agreement and failed to demonstrate that the plaintiff did not reasonably mitigate her damages, despite expert opinion suggesting a longer relisting period.

The court granted summary judgment to the plaintiff against Cabral and default judgment against Behiry for the difference in sale price and associated expenses.

Cabral's counterclaim was dismissed by consent.

The applicant sought declarations for a prescriptive easement over a portion of an adjoining property for a vehicle turnaround area and for ownership by adverse possession of a narrow strip of land on another adjoining property.

The court found that the applicant established all five criteria for a prescriptive easement, demonstrating continuous, uninterrupted, open, and peaceable use for over 20 years without permission, and that the use was reasonably necessary for the enjoyment of the dominant tenement.

The court also found that the applicant established adverse possession of the strip of land for over 10 years prior to the land's conversion to Land Titles.

Both declarations were granted in favour of the applicant.

The defendant Ceeps-Barneys Limited, operating as The Ceeps, brought a motion for summary judgment to dismiss a personal injury action against it.

The plaintiffs alleged the Ceeps breached its common-law and statutory duties as a commercial host and occupier, following an assault on the plaintiff Kyle Schiavone by co-defendant Brenden Woods outside the establishment.

The court dismissed the motion, finding genuine issues requiring a trial regarding the Ceeps' duty of care, breach, and the foreseeability of harm.

The court also noted that granting partial summary judgment would risk duplicative proceedings and inconsistent findings, as the action would proceed against other defendants regardless.

A father sought child support from a mother, who in turn sought significantly greater access to their child.

The court suspended the mother's child support obligations due to her low income and receipt of Ontario Works benefits.

The mother's request for unsupervised access in her home was denied, with the court maintaining the existing community-setting access due to a history of child protection concerns and a lack of sufficient evidence demonstrating improved parenting capacity.

The court ordered that the mother be granted access to the child's medical and educational records and requested further submissions regarding future access arrangements, particularly for special occasions and once the child commences school.

A consultant sued a corporation for unpaid fees under a month‑to‑month consulting services agreement providing monthly compensation plus expenses.

The defendant argued the contract was frustrated and unenforceable because the consultant could not legally work in Canada without immigration authorization and had failed to secure investment funding.

The court rejected these defences, finding the primary purpose of the contract was to obtain American venture‑capital investment and that the consultant had substantially performed her services from the United States with the defendant’s knowledge and encouragement.

The defendant had waived any requirement that work be performed in Canada and had continued to praise the consultant’s work while failing to pay agreed fees.

Judgment was granted for the outstanding consulting fees with pre‑judgment interest.

Following dismissal of the plaintiff’s action at a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the court determined the appropriate costs award.

The defendants sought partial indemnity costs for preparation and attendance related to the dismissal motion.

The court held that some claimed time, including work connected to a prior interlocutory motion and certain post‑hearing submissions, should not be included.

Applying the principle that costs must be fair and reasonable rather than a precise calculation of docketed hours, the court fixed a global costs award.

The plaintiff was ordered to pay $10,500 in fees plus HST and approved disbursements.

At a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the defendants sought dismissal of the plaintiff’s negligence action for delay.

The court applied the two‑part conjunctive test confirmed by the Court of Appeal requiring the plaintiff to show a reasonable explanation for the delay and absence of non‑compensable prejudice to the defendant.

Although the defendants conceded they would not suffer prejudice if the action proceeded, the plaintiff failed to provide any satisfactory explanation for extensive procedural delays, including failure to properly plead the claim, repeated non‑compliance with court orders, and lengthy unexplained gaps in advancing the litigation.

The court emphasized that plaintiffs bear primary responsibility for moving actions forward and that persistent disregard of procedural timelines undermines the administration of justice.

As the plaintiff did not meet the required test, the action was dismissed.

The appellant lessor appealed a Small Claims Court decision that reduced damages arising from a defaulted automobile lease based on alleged breaches of the Consumer Protection Act.

The appellate court held that the deputy judge made palpable and overriding errors in fact and law by finding undisclosed charges, misinterpreting lease calculations, and concluding that the lessor engaged in unfair practices without evidentiary support.

The court found the lease’s liquidated damages clause enforceable and determined the lessor was entitled to the arrears and accelerated future lease payments, subject only to a credit for interest improperly applied to a gas card charge.

The appellate court set aside the reduced damages award and substituted judgment reflecting the contractual damages under the lease.

The appellant appealed a Small Claims Court decision dismissing its action and motion for assessment of damages after the respondents were noted in default on a vehicle lease.

The Deputy Judge had dismissed the claim based on alleged violations of the Consumer Protection Act despite the deemed admission of liability resulting from the respondents’ default.

The Superior Court held that the Deputy Judge erred in law by disregarding the deemed admission of liability and by making speculative findings about alleged deceptive practices without evidence.

The court also found procedural unfairness because the appellant was given no notice that the claim might be dismissed rather than having deficiencies in the affidavit addressed.

The decision was set aside and the matter remitted to another Small Claims Court judge for a new assessment of damages upon the filing of a more detailed affidavit.

The moving parties sought judgment enforcing a settlement agreement under Rule 49.09 of the Rules of Civil Procedure and declaratory relief under s. 97 of the Courts of Justice Act.

The dispute concerned the interpretation of settlement terms requiring an accounting of profits, dividends, management fees, and payments derived from a medical centre business, and whether certain legal expenses and management fees constituted benefits received or derived by the responding parties.

The court preferred the evidence of the moving parties’ expert accountant, finding that payments for legal fees and management services constituted benefits derived by the responding parties rather than excluded loan repayments.

The accounting determined that additional funds were owed under the settlement and that the responding parties were required to transfer shares in the corporation.

Judgment was granted enforcing the settlement terms and ordering payment of the additional sums and transfer of shares.

A franchisee brought an action against the franchisor alleging failure to disclose material information under the Arthur Wishart Act in connection with a renewal of a franchise agreement and the franchisor’s requirement that the franchisee undertake costly renovations to convert its store to a sit‑down restaurant.

The franchisee claimed the renovations constituted a material change requiring disclosure and alleged breaches of good faith, damages for loss of the business, and lost profits.

The court held that the renovation program had been disclosed and known to the franchisee since before the original franchise agreement and therefore did not constitute a material change at renewal within the meaning of the Arthur Wishart Act.

The court further found the franchisor acted in good faith and made multiple reasonable accommodations and offers to the franchisee.

In any event, the franchisee failed to mitigate its damages by refusing to return to operate the store for the remaining term of the agreement.

The action was dismissed.

The defendant appealed a Small Claims Court judgment awarding damages to a purchaser of a used vehicle that had been misrepresented as having all‑wheel drive.

The appellant argued that the trial judge erred in failing to properly consider mitigation and in calculating damages.

The court held that the respondent had taken reasonable steps to mitigate her losses while pursuing rescission through OMVIC and later trading the vehicle in for another.

However, the trial judge erred in including the entire financing cost of the vehicle in the damages calculation.

The appeal was allowed in part and damages were recalculated to reflect the unused value of warranty costs, a deduction for use of the vehicle, and the trade‑in value received.

The defendants moved under Rule 19.08 of the Rules of Civil Procedure to set aside a default judgment and an earlier order striking their statement of defence in a property dispute involving alleged failure to disclose mould conditions in a residential basement.

The court considered the factors governing motions to set aside default judgments, including promptness of the motion, explanation for the default, and the existence of an arguable defence.

The court held that the motion had been brought without undue delay and that the defendants had an arguable defence based on sworn discovery evidence denying knowledge of mould or water problems.

Balancing prejudice to both parties and the interests of justice, the court concluded that the matter should proceed to trial on strict conditions including payment of the assessed damages and costs into court and payment of costs thrown away.

The default judgment and the order striking the defence were set aside subject to those terms.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for statutory accident benefits, arguing it was statute-barred because the plaintiff failed to mediate her claim and failed to return settlement funds prior to commencing the action.

The plaintiff brought a cross-motion for partial summary judgment for ongoing income replacement benefits.

The court granted the defendant's motion, finding that the failure to mediate and return the settlement funds deprived the court of jurisdiction.

The plaintiff's cross-motion was dismissed on the merits due to contradictory evidence regarding her disability.

The plaintiff brought an action against the Hamilton Police Services Board (HPS) for damages arising from the seizure of his vehicles and car parts by the Ontario Provincial Police (OPP).

The plaintiff alleged that the HPS was vicariously liable as a 'partner' of the OPP because an HPS detective assisted in examining the seized vehicles.

The Superior Court of Justice dismissed the action, finding no evidence of a partnership or joint investigation between the two police forces.

The court concluded that the OPP had exclusive control over the seizure and disposition of the property, and the HPS detective acted solely as an examiner.

The respondent mother brought a motion for interim child and spousal support, alleging the applicant father was intentionally unemployed or underemployed and seeking to impute his income at $386,000.

The applicant claimed his businesses had failed and he was receiving Ontario Works.

The court found the applicant had earned at least $111,000 in 2012 and imputed his income at $125,000 on an interim basis, noting his intentional unemployment and significant unexplained deposits.

The court ordered the applicant to pay interim child support, outstanding tuition fees, and established the respondent's entitlement to interim spousal support.

The applicant father brought a motion for interim spousal support, and the respondent mother brought a cross-motion for interim child support.

The father claimed he was unable to work due to a workplace injury and was receiving social assistance.

However, WSIB records revealed he had received extensive retraining but refused to seek employment in those fields.

The court imputed an annual income of $21,320 to the father based on minimum wage.

Applying the Spousal Support Advisory Guidelines and Child Support Guidelines, the court ordered the father to pay $320 per month in child support and the mother to pay $320 per month in spousal support, offsetting the two amounts.

The mother was also ordered to make a one-time spousal support payment of $2,000 to the father.