Roger Chown

The appellant appealed a Small Claims Court decision dismissing his claim for breach of contract regarding the restoration of a 1986 Ford Bronco and granting the respondent's counterclaim for the balance of the contract price.

The appellant argued the trial judge misapprehended evidence regarding whether the vehicle was to be made drivable and improperly admitted an expert report.

The Divisional Court dismissed the appeal, finding the trial judge's conclusions were grounded in the evidence and noting the appellant himself had introduced the expert report at trial without challenging the expert's qualifications.

The respondent mother brought a motion to compel the applicant father to file his application and financial disclosure, for a non-disparagement order, and for the pre-trial sale of the matrimonial home.

The father had failed to comply with previous court orders regarding disclosure and had delayed the proceedings.

The court allowed the mother to become the applicant in the proceeding.

The court also expanded an existing non-disparagement order due to evidence of the father denigrating the mother to the children.

Finally, the court ordered the pre-trial sale of the matrimonial home, finding that a sale was inevitable for financial reasons and that the father had not established that a sale would prejudice his rights or be contrary to the children's best interests.

The applicant husband brought a motion to vary interim spousal and child support.

The respondent wife raised a preliminary objection that the motion was stayed because the applicant was an undischarged bankrupt.

The court dismissed the preliminary objection, finding that under the Bankruptcy and Insolvency Act, claims for support are not stayed.

On the merits, the court found a material change in circumstances due to a significant decline in the applicant's income as a pharmacist.

The court imputed income to both parties and varied the interim child and spousal support retroactively.

The appellant appealed a Small Claims Court decision awarding $10,000 in punitive damages to the respondent consumer.

The consumer had signed what she believed was a purchase agreement for HVAC equipment at 0% interest, but the pre-printed form was a 10-year rental agreement.

The trial judge found the consumer was the victim of a fraud in her home.

On appeal, the Divisional Court upheld the punitive damages award, finding that the appellant's agent made unconscionable representations and the appellant unreasonably insisted on enforcing the fraudulently obtained rental agreement despite obvious inconsistencies on the face of the contract.

The appellant appealed a Small Claims Court decision awarding $10,000 in punitive damages to the respondent consumer.

The consumer had signed a pre-printed HVAC rental agreement after being told she was purchasing the equipment at zero percent interest, and she handwrote these terms onto the contract.

The trial judge found the transaction was a fraud and awarded punitive damages.

The Divisional Court dismissed the appeal, finding that while the trial judge made some factual errors regarding an 'elaborate scheme', the appellant's conduct—including relying on a fraudulently obtained contract, attempting to intimidate the consumer, and breaching multiple provisions of the Consumer Protection Act—justified the punitive damages award.

In a divorce proceeding, both parties brought motions to enforce a settlement agreement, but advanced divergent interpretations of its terms.

The court noted that neither party addressed the appropriate legal test for determining if a binding agreement was reached, nor the correct procedural mechanism under the Family Law Rules (Rule 16 or Rule 18(13)).

The court adjourned the motions and directed counsel to provide further submissions on these procedural and substantive issues before making a final decision.

The non-party insurer sought costs for two motions regarding summonses issued by the plaintiff, which were previously found to be an attempt to abuse the court's process.

The insurer claimed over $79,000 on a substantial indemnity basis.

The court declined to award substantial indemnity costs, finding that an abuse of process finding on a summons does not automatically justify an elevated scale.

Applying the principle of fairness and reasonableness, the court fixed costs at $18,930, noting that the two motions should have been heard together and the amount claimed was disproportionate for relatively straightforward motions.

The defendants brought a motion to strike parts of the plaintiff's statements of claim arising from alleged wrongful arrests related to an investigation into unpasteurized milk.

The Crown argued the claims against two police officers were statute-barred and the claims against a provincial investigator failed to disclose a reasonable cause of action for malicious prosecution and misfeasance in public office.

The court dismissed the motion, finding the claim against the officers was issued in time despite late service, and the pleadings against the investigator adequately alleged the necessary elements of the torts.

The plaintiff electrical subcontractor moved for default judgment against the defendant general contractors in a construction lien action.

The homeowner defendants, who had also been noted in default, appeared and requested that the noting of default against them be set aside, arguing they had disputed liability early on but were ignored.

The court declined to grant default judgment against the general contractors immediately, as doing so would prejudice the homeowners' ability to dispute the quantum.

The motion was adjourned to allow the homeowners to bring a formal motion to set aside the noting of default.

The plaintiffs brought a motion to strike the jury notice in a motor vehicle accident action to avoid further delay caused by the COVID-19 pandemic.

The action had been set down for trial in 2018 and faced significant delays.

The court adopted a conditional approach, ordering that the matter remain on the upcoming trial list and proceed as a judge-alone trial if reached while jury trials were unavailable.

If not reached, it would be rescheduled and proceed with a jury only if the court could accommodate one at that time.

The non-party insurer, Gore Mutual Insurance Company, brought a motion to quash four summonses issued by the plaintiff under Rule 39.03(5).

The plaintiff sought to examine four Gore employees in connection with an underlying motion brought by Gore to vary a Rule 30.10 production order.

The court granted the motion and quashed the summonses, finding that the intended examinations were unnecessary, would not enhance the record for the underlying motion, and appeared to be an abuse of process aimed at obtaining advance discovery for a separate insurer misconduct claim.

On a pre-trial application in a sexual assault prosecution, the court considered whether sexually explicit text messaging exchanged within the hour before the alleged assault constituted prior sexual activity evidence requiring screening under s. 276 of the Criminal Code.

The court held that, given the immediate temporal proximity and narrative connection, the texts formed part of the sexual activity that was the subject-matter of the charge and therefore did not engage s. 276.

In the alternative, the court held the evidence met the admissibility requirements in ss. 276(2) and (3) because it was relevant to the accused's asserted defence of honest but mistaken belief in communicated consent, was not tendered for twin-myth reasoning, and had significant probative value not substantially outweighed by prejudice.

The application was granted.

The plaintiffs in a motor vehicle accident case moved to amend their statement of claim to add three new defendants after the presumptive two-year limitation period had expired.

The proposed defendants opposed the motion, arguing the plaintiffs failed to exercise reasonable diligence to discover their involvement within the limitation period.

The court granted the motion, finding that there were issues of credibility and fact regarding when the plaintiffs ought to have discovered the claims, which warranted a trial.

The proposed defendants were granted leave to plead a limitation defence.

During a wrongful dismissal trial, the plaintiff sought disclosure of a recording of a closed municipal council meeting where her termination was discussed.

The defendants claimed solicitor-client, settlement, litigation, and confidential communications privilege.

Applying the Wigmore criteria, the court ordered partial disclosure.

The portion of the recording where the CAO justified the termination decision was ordered disclosed, as the benefit to the litigation outweighed the injury to the municipal relationship.

However, portions involving legal advice, anticipated negotiations, and council questions remained privileged.

The defendant brought a motion for summary judgment in a motor vehicle accident case involving a dispute over who had the green light.

The plaintiff, who was self-represented, did not attend the hearing or file responding materials.

The court considered the defendant's evidence, including an affidavit from an off-duty police officer who witnessed the accident, which established that the defendant had the green light.

The court found the plaintiff's discovery evidence, which contradicted the defendant's evidence, to be implausible and unsupported.

The court granted summary judgment and dismissed the action, awarding costs to the defendant.

The defendant brought three motions regarding trial consolidation, undertakings, refusals, and production from non-parties in two related motor vehicle accident actions.

The court declined to consolidate the actions but ordered them to be tried together.

The court also ordered the plaintiffs to submit to further examination for discovery regarding a post-discovery photograph and deleted social media/website content related to a potential business.

Additionally, the court ordered the production of a property damage file from a prior accident due to overlapping injuries.

Costs of $3,500 per action were awarded to the defendant.

The defendants brought a motion to set aside a noting of default in an action for unpaid rent and other damages under a commercial lease.

The plaintiff had noted the defendants in default without notifying their counsel, despite knowing they were represented.

The court found that while the defendants delayed in responding to the claim, the plaintiff's failure to provide a courtesy copy or follow up was contrary to the principles of civility.

The court set aside the noting of default, emphasizing that cases should be decided on their merits rather than technical defaults, and awarded costs to the defendants.

The respondent brought a motion for an order releasing funds held in trust from the sale of the matrimonial home.

The applicant opposed, suspecting an undisclosed side arrangement between the respondent and the buyer that would affect equalization.

The court dismissed the applicant's opposition, finding no prima facie evidence to support her suspicions or a real risk that her equalization claim would be defeated.

The court ordered the funds distributed equally to the parties, emphasizing that mere suspicion without concrete evidence of asset dissipation or a strong likelihood of a significant equalization payment is insufficient for a preservation order.

This endorsement concerns the costs of a prior motion where the respondent sought a pension valuation, which the applicant resisted.

The court had previously ruled in favour of the applicant.

The judge found neither party's position on the underlying motion to be substantially unreasonable.

The decision emphasizes that offers to settle binary issues, where a true compromise is not possible, should not be given significant weight in determining costs.

Despite the applicant achieving a result as favourable as their offer, full indemnity costs were not awarded.

The court found the applicant's counsel dockets reasonable and ordered the respondent to pay $3,250 in all-inclusive costs to the applicant.

This endorsement addresses several outstanding issues following a previous decision, primarily concerning parenting time, shared expenses, and communication.

The court adjusted the father's weekday parenting time to include specific non-overnight periods on Tuesdays and Thursdays when he does not have weekend parenting time, with shared transportation responsibilities.

The court also clarified the sharing of daycare costs, commencing January 1, 2021, and the mother's responsibility for 407 tolls incurred solely for child transportation, acknowledging the impact of her move.

Additionally, the parties were ordered to use the Our Family Wizard app and attend questioning by videoconference.

The court declined to waive the requirement for a case conference before any further motion on parenting time, emphasizing the suitability of case conferences for such scheduling matters.