Russell M. Raikes

The plaintiff rental car company moved for summary judgment against the defendant renter for damages to a rented vehicle.

The vehicle was involved in a rollover accident while being driven by the defendant's son, an unauthorized driver with a suspended license.

The court found no genuine issue for trial regarding liability, as the unauthorized use invalidated the optional collision damage waiver regardless of whether the defendant consented to her son driving.

However, the court declined to grant summary judgment on the quantum of damages, finding the plaintiff's evidence insufficient, and ordered a hearing for the assessment of damages.

The defendant brought a motion for the production of the plaintiff's bank records from May 2009 to the present.

The plaintiff, a sole proprietor claiming significant economic loss following a motor vehicle accident, opposed the motion on the basis that he had already produced ledgers and tax records.

The court found the bank statements were relevant to verify the plaintiff's pre-accident income and test the adjustments made by his economic loss expert.

Applying the principle of proportionality, the court ordered the production of the bank statements, with the defendant to reimburse the plaintiff for the cost of obtaining them.

The applicants sought costs of $18,000 on a partial indemnity basis, or alternatively no costs, following an application where they were largely successful in being removed as trustees of a Henson trust but unsuccessful in seeking directions to sell a farm.

The respondent sought partial indemnity costs of $30,555.90 payable by the applicants from their shares of the estate.

The court found there was divided success and ordered that no costs be awarded.

Following the dismissal of the applicant's motion to terminate her brother's authority as power of attorney for personal care for their mother, the successful respondent sought costs on a full indemnity basis.

The court awarded costs on a partial indemnity scale, noting the respondent's settlement offer was a package deal that included issues not before the court.

The court fixed costs at $37,500, payable by the applicant personally, reiterating that costs in estate and power of attorney matters are generally paid by the unsuccessful litigant, not the estate.

The parties engaged in a high-conflict family law trial addressing custody, access, child support, and spousal support.

The applicant father sought sole custody, alleging the respondent mother alienated the children and caused the teenage daughter's mental health crises.

The court found a material change in circumstances and awarded sole custody to the applicant, noting the children thrived in his care while the respondent lacked insight into how her conduct harmed them.

The respondent was granted specified access.

The court imputed income to the respondent for child support purposes due to intentional under-employment.

The respondent was awarded spousal support on compensatory and non-compensatory grounds, but the court declined to include the applicant's post-separation income increases in the calculation.

The court also permitted the applicant to set off unpaid costs awards against an equalization payment owed to the respondent.

The representative plaintiffs in a class action brought a motion for approval of their retainer agreements, class counsel's fees and disbursements of $175,000, and a $500 honorarium for each representative plaintiff.

The court found the honorarium modest and appropriate.

The court also approved the contingency retainer agreements under the Class Proceedings Act, 1992, and found the requested fees to be fair and reasonable given the results achieved, the risks undertaken, and the fact that the defendants agreed to pay the fees.

The representative plaintiffs sought approval of a settlement in a class action against General Motors regarding incorrect fuel economy stickers on certain 2016 model year vehicles.

The settlement provided class members with either a cash payment equivalent to a prior voluntary compensation program or a $2,000 voucher for a new vehicle.

The court found the settlement, negotiated at arm's length by experienced counsel, to be fair, reasonable, and in the best interests of the class, and approved it along with class counsel fees of $175,000.

The applicants, estate trustees of Norman Zock's estate and trustees of the Henson Trust for Stephen Wayne Zock, sought removal as trustees of the Discretionary Trust and court direction to sell the family farm held in the Norman Zock Farm Trust.

The respondent beneficiary, Stephen Wayne Zock, opposed the farm sale and requested that one trustee (Norma) continue.

The court granted Norma Lynn Pierce's removal as trustee of the Discretionary Trust after passing accounts, but declined to remove Gary Zock, imposing specific conditions for his temporary continuation as trustee.

The court also denied the request to sell the farm, finding that the preconditions for sale, specifically Stephen's incapacity to manage personal care or inability to maintain the home to a habitable standard, were not met based on the evidence presented.

The plaintiffs sought an order to prevent the dismissal of their action for delay under Rule 48.14 and to establish a new timetable for trial.

The action, commenced in 2014, faced dismissal after five years.

The court applied the two-part test from Faris v. Eftimovski, requiring an acceptable explanation for delay and no non-compensable prejudice to the defendants.

The court found that some delay was attributable to a co-defendant's dilatory conduct and reasonable settlement discussions, though the plaintiffs were not entirely diligent.

Crucially, no non-compensable prejudice was found, as principal witnesses were available, and the defendants retained avenues to obtain evidence from the settled co-defendant.

The motion was granted, a revised timetable was set, and costs were awarded to the plaintiffs.

The applicant, Richard Bendall, moved to terminate spousal support payable to the respondent, Arlene Bendall, effective January 1, 2018, citing his retirement and injuries as a material change in circumstances.

Arlene opposed the termination, sought a retroactive increase in spousal support from 2009, and indefinite continuation of support, arguing Richard's retirement was voluntary and she remained in need due to post-separation injuries and illness.

The court found Richard's voluntary retirement constituted a material change in circumstances, was not motivated by a desire to avoid support, and that Arlene's inability to achieve self-sufficiency was primarily due to post-separation health issues rather than economic disadvantages from the marriage.

The court terminated spousal support effective January 1, 2018, and ordered Arlene to repay any amounts received since that date.

Arlene's oral motion to amend her pleading for retroactive support was denied due to delay and prejudice to Richard.

The plaintiffs brought a motion to remove the defendant's counsel, Zuber & Company LLP, alleging inappropriate direct communication with the plaintiff's treating doctors and improper requests for medical files without consent.

The court found that defence counsel's letter accompanying a summons to witness inappropriately sought production of medical files directly from the treating doctors, breaching confidentiality protocols established in Burgess v. Wu.

While the conduct was deemed inappropriate, the court, applying the high threshold for removal of counsel, determined that removal was not necessary in the interests of justice, especially since no new confidential information was disclosed.

However, due to the inappropriate conduct, the plaintiffs were awarded costs of the motion on a partial indemnity basis.

The defendants, Anthony and Karen Van Bakel, brought motions to transfer two related actions (the Purdy action from London and the Eedy action from Kitchener) to Goderich for trial, and for an order that the actions be tried together.

The Eedy plaintiffs opposed the transfer to Goderich.

The court granted the transfer, finding Goderich to be the most desirable venue in the interests of justice, citing its greater connection to the events, damages, parties, and witnesses, and a significantly shorter trial wait time compared to London.

The court also ordered the actions to be tried together or one immediately following the other.

The applicants, children of Theresa Hutter, brought a cross-motion in an ongoing application concerning their mother's capacity and financial management.

Theresa, diagnosed with dementia, had moved to British Columbia with her son Fred (a respondent and her attorney for property).

The applicants sought to amend their application to compel Fred to pass accounts and for specific financial directions.

The court affirmed its jurisdiction despite Theresa's residence in British Columbia, citing the origin of the powers of attorney in Ontario and the presence of assets held in trust in the province.

Leave to amend the application to seek a passing of accounts was granted, as the applicants demonstrated a genuine interest in Theresa's welfare and a reasonable belief that a court might order an accounting.

However, the court declined to order an immediate passing of accounts due to insufficient clear evidence of mismanagement at this stage, instead ordering Fred to provide specific financial disclosure from January 1, 2018.

The court also declined to issue specific directions regarding payments for Theresa's care or property expenses.

This trial decision addresses custody, access, and child support for a three-year-old child.

Sole custody was granted to the respondent mother by agreement.

The court assessed the applicant father's parenting abilities, noting significant concerns regarding his judgment, living conditions, and inconsistent commitment to the child, particularly in light of his new relationship and the apprehension of his other child by child protective services.

The court ordered initial supervised access, transitioning to unsupervised access at the respondent's discretion, subject to strict conditions including a CAS inspection of the applicant's residence and prohibitions on leaving the child with the applicant's partner or transporting the child unsafely.

Child support was ordered in accordance with the Ontario Child Support Guidelines.

The tenant appealed a Landlord and Tenant Board decision dismissing his applications for substantial interference and failure to meet maintenance obligations.

The tenant and his family had moved into the rental unit but left the next day because it was unsafe and unfit for habitation due to ongoing repairs.

The Divisional Court found the Board erred in law by focusing on the tenant's prior knowledge of the unit's condition, ignoring evidence of the severity of the deficiencies, and failing to provide a remedy despite finding the unit unfit for habitation.

The appeal was allowed, and the tenant was awarded the return of his deposit, rent abatement, and out-of-pocket expenses.

The Registrar, Alcohol, Gaming and Racing appealed a decision of the Ontario Licence Appeal Tribunal which directed the Registrar not to suspend the liquor licence of The Royal Oak.

The Registrar had proposed a 60-day suspension after an intoxicated patron left the premises and was later found dead in the snow, arguing the licensee's obligation not to permit drunkenness included ensuring the patron arrived at a safe place.

The Divisional Court dismissed the appeal, finding the Tribunal's decision reasonable and holding that s. 45(1) of O. Reg. 719/90 does not impose an ongoing obligation on a licensee to ensure a patron's safe arrival at a destination after leaving the premises.

The defendant, Steven Manuel Espinola, was charged with break and enter, kidnapping, unlawful confinement, and assault against his former fiancée.

The court acquitted him of break and enter, finding no intent to kidnap upon entry.

However, the court found him guilty of kidnapping, unlawful confinement, and assault, accepting the complainant's testimony over the defendant's, which was deemed unreliable and illogical.

The kidnapping occurred when he drove her against her will, the assault involved a shove during a struggle for her phone, and the unlawful confinement took place at his home where he prevented her from leaving.

The defendant, Jonathan Hugill, was charged with theft under $5,000, three counts of fraud over $5,000, and three counts of uttering forged documents, all related to cheques belonging to his brother, Jason Hugill.

The central issue was whether Jason had authorized Jonathan to take, fill out, and sign the cheques.

The court found Jonathan's testimony to be unreliable and noted inconsistencies in Jason's evidence regarding when he discovered the alleged unauthorized cheques.

Due to a reasonable doubt as to whether Jason had given consent or authorization, the court acquitted Jonathan on all charges.

This decision addresses two motions within a partition and sale application concerning the distribution of property sale proceeds.

Annette Curtis sought immediate one-third distribution to each party, while Lenn Curtis sought to preserve the funds in trust or court pending an oppression application.

The court found jurisdiction under Rule 66.03.

Lenn Curtis's request was akin to a Mareva injunction, but the court found the test not fully met due to delay and lack of evidence of asset dissipation risk.

However, the court exercised its discretion under the Partition Act, finding that the property issues were intertwined with the ongoing oppression application and that immediate distribution would be oppressive and cause hardship.

Consequently, Annette Curtis's motion for distribution was dismissed, and the funds were ordered to remain in trust or be paid into court, with the application adjourned to be heard with the oppression application.

The applicant sought judicial review of an arbitration award that dismissed a grievance concerning the employer's refusal to pay a bilingual bonus to part-time indeterminate employees working temporarily in bilingual positions.

The Divisional Court applied the reasonableness standard of review.

The Court found that the arbitrator's reliance on past practice and the specific wording of the collective agreement regarding the bilingual bonus was reasonable.

The application for judicial review was dismissed with costs awarded to the employer.