Sidney Klotz

The plaintiff brought a motion for summary judgment seeking a declaration that the defendants were substantially interfering with a shared right-of-way between their neighbouring properties.

The plaintiff required vehicular access over the right-of-way to satisfy municipal parking requirements for his renovations, but the defendants had built a fence extension and installed concrete slabs blocking access.

The court found that the right-of-way had not been abandoned and that the defendants' structures constituted a substantial interference.

The court ordered the removal of the extension and slabs but dismissed the plaintiff's claims for damages and the defendants' counterclaim for property damage.

On appeal from a trial judgment ordering the sale of the matrimonial home, the appellant challenged the order on the grounds that the trial judge failed to consider the best interests of the parties' three children who had resided in the home since the 2012 separation.

The Court of Appeal upheld the trial judge's decision, finding that the trial judge properly considered the relevant criteria and the best interests of the children.

The respondent had a prima facie right to partition and sale, and the appellant failed to demonstrate malicious, vexatious, or oppressive conduct that would preclude the sale.

The appeal was dismissed with costs fixed at $10,000.

The appellant wife appealed the trial judge's decision upholding a cohabitation agreement that released her claims to spousal support and the determination of income for child support purposes.

The parties had signed the agreement before marriage, whereby the wife released all claims to spousal support.

Upon separation after an 18-year relationship and two children, the wife sought spousal support.

The trial judge upheld the agreement and dismissed her claim.

The Court of Appeal applied the two-stage Miglin test and found no error of law or misapprehension of fact.

The court upheld the trial judge's findings regarding the circumstances of the agreement's execution and its substantial compliance with the Divorce Act objectives.

The appeal was dismissed with costs awarded to the husband.

Following the dismissal of both the plaintiff's action and the defendants' counterclaim, the parties made written submissions on costs.

The defendants sought partial indemnity costs of $69,195.59, while the plaintiff argued she was entitled to costs due to the defendants' bad faith and breach of a standstill agreement.

The court noted that although the plaintiff succeeded on the issue of a joint family venture, the action remained a civil proceeding, making the Family Law Rules inapplicable.

Finding divided success but slightly more success for the defendants, and considering the defendants' conduct, the court awarded the defendants costs fixed at $30,000 on a partial indemnity basis.

The plaintiff sought monetary relief based on unjust enrichment arising from a joint family venture with the defendant, David Brathwaite, and his corporations.

The court found that a joint family venture existed and the plaintiff's claim was not statute-barred due to ongoing reconciliation efforts.

However, the plaintiff failed to provide sufficient evidence to prove a disproportionate accumulation of wealth by the defendant linked to her contributions, or to quantify the alleged enrichment and deprivation.

Consequently, the plaintiff's claim for unjust enrichment was dismissed, as was the defendant's counterclaim.

The plaintiff brought a motion for various orders, including production of documents and answers to refusals, after the action had been set down for trial and the trial had commenced and been adjourned.

The court held that the plaintiff required leave under Rule 48.04(1) to bring the motion.

The court found that the plaintiff failed to establish a substantial or unexpected change in circumstances to justify granting leave, noting that an amendment to the statement of claim did not entitle her to obtain new evidence she could have obtained earlier.

The motion was dismissed with costs.

This case conference endorsement addresses a plaintiff's extensive motion, which the defendants argued largely required leave under Rule 48.04(1) of the Rules of Civil Procedure.

The court, without ruling on the merits of the leave requirement, found the two-hour hearing allocation unrealistic for the motion as framed.

By consent, the scope of the plaintiff's motion was limited to specific paragraphs concerning particulars and outstanding undertakings, without prejudice to the remaining relief which may still require leave.

The court also noted the possibility of a future case conference before trial.

During the trial, the plaintiff brought a motion for leave to amend her Statement of Claim after the trial judge noted her pleadings contained irreconcilable theories regarding her interest in two corporations.

The plaintiff sought to amend her claim to assert unjust enrichment and constructive trust arising from a joint family venture with the individual defendant, while abandoning claims of legal ownership.

The court granted leave to amend the pleadings to advance the unjust enrichment and constructive trust claims, finding that such claims may not have vested in her trustee in bankruptcy if they crystallized after her discharge.

However, the court denied leave to amend claims asserting legal or beneficial ownership, as those would have vested in the trustee upon her voluntary assignment in bankruptcy.

The accused brought a Mills application seeking production of third-party records held by medical providers, telecommunications companies, police services, and probation officers.

The application involved a sexual assault and assault causing bodily harm charge arising from an intimate relationship that had ended.

The court conducted a two-stage analysis under sections 278.3 to 278.9 of the Criminal Code, balancing the accused's right to make full answer and defence against the complainant's privacy interests.

The court granted production of certain hospital records, telephone records, police records relating to prior investigations, and police occurrence reports involving dishonesty allegations, while denying production of the complainant's telephone records, family physician records, and probation records.

Following a six‑day reference hearing concerning mortgage accounting and alleged defaults, the court had determined that the mortgages were in default and that the plaintiff owed a substantial sum on two outstanding mortgages, subject to minor overpayments.

The defendants sought costs of the reference.

Applying s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed the relative success of the parties and their conduct during the proceeding.

Although the defendants were largely successful, the court reduced the amount sought to reflect their partial lack of success and some contribution to the length of the hearing.

Costs were fixed on a partial indemnity basis.

The defendants sought costs following the abandonment of the plaintiffs’ motion for an interim interlocutory injunction.

The court found the motion had in fact been abandoned rather than merely adjourned and that the defendants were entitled to costs.

In assessing quantum, the court considered the factors under Rule 57.01 of the Rules of Civil Procedure and the plaintiffs’ undertaking in their Notice of Motion to indemnify the defendants for costs and damages.

Although the matter was complex and significant to the parties, the court found the hours claimed by defence counsel excessive and reduced the amount claimed.

Fixed costs of $40,000 were awarded to the defendants.

The plaintiff mortgagor sought relief from forfeiture and challenged the accounting and enforcement of seven mortgages held by the defendants.

A reference was ordered to determine whether defaults existed at the time notices of sale were issued and to calculate the amounts owing.

The court found technical defaults existed for all seven mortgages due to factors including unpaid property taxes, lack of insurance, and missed payments.

However, several charges claimed by the mortgagee—including legal fees and certain administrative charges—were disallowed due to insufficient evidentiary support.

The court recalculated the mortgage accounts and determined the correct balances, finding both overpayments and underpayments across the different properties.

The defendants brought a motion for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure on the basis that the corporate plaintiff had insufficient assets in Ontario to satisfy a potential costs award.

Evidence before the court showed that the plaintiff had outstanding judgments exceeding $1,000,000 and had filed no responding evidence demonstrating available assets.

The court held that once the defendants established the Rule 56.01(1)(d) threshold, the burden shifted to the plaintiff to prove sufficient assets, demonstrate impecuniosity, or show that its claim had a strong likelihood of success.

The plaintiff failed to meet any of these evidentiary burdens.

The court ordered the plaintiff to post $15,000 as security for costs and awarded the defendants partial indemnity costs of the motion.

The appellant condominium corporation appealed the dismissal of its motion for summary judgment regarding a lien registered against the respondent's unit for unpaid common expenses.

The Court of Appeal held that under section 85 of the Condominium Act, a separate lien arises upon each default, meaning late registration only invalidates liens arising more than three months prior to registration.

However, the appeal was dismissed because the appellant failed to provide adequate written notice for the subsequent liens, as notice of an expired lien cannot cover subsequent defaults.

The applicant brought a motion to change a consent order requiring payment of spousal support and arrears following a lengthy marriage.

He sought termination of ongoing support and elimination of arrears based on reduced income after retirement, alleged medical limitations affecting his ability to work overtime, financial hardship due to a new family, and alleged rental income earned by the respondent.

The court held that under s. 17 of the Divorce Act a material change in circumstances must be proven that was not contemplated at the time of the original order.

The alleged medical conditions, family circumstances, and retirement were either known or contemplated when the consent order was made, and the evidence of change was weak and largely unsupported.

The court also found the respondent’s alleged rental income did not constitute a material change.

The motion to terminate arrears and ongoing spousal support was dismissed.

The plaintiff, a not-for-profit corporation operating Sikh temples, sought summary judgment declaring it had 38 members and an interlocutory injunction restraining the defendants from seizing control of the temples.

The defendants claimed the membership was 1087 and sought the appointment of a monitor and auditor, alleging financial mismanagement.

The court granted summary judgment finding there were only 38 members, as the defendants' claims regarding additional members were factually unfounded, barred by delay, and precluded by estoppel.

The court continued the interlocutory injunction against the defendants, finding they had unlawfully seized control of the plaintiff, and dismissed their request for a monitor and auditor.

The appellants appealed a trial decision finding them liable for defamation and awarding the respondent $50,000 in general damages and $25,000 in punitive damages arising from articles published in a newspaper.

The Court of Appeal upheld the liability finding, noting the appellants admitted to publishing the articles in their statement of defence.

The court also upheld the general damages award, finding it generous but within the acceptable range for mental suffering.

However, the court set aside the punitive damages award, concluding that malice was neither pleaded nor proven, and the lack of an apology alone did not justify punitive damages.

The appellant appealed a summary judgment granted in favour of the respondent bank.

The appellant, who was self-represented at the motion, sought to adduce fresh evidence explaining his failure to defend the motion due to personal circumstances and asserting that his employer was responsible for two of the three loans in dispute.

The Court of Appeal admitted the fresh evidence, finding that the appellant's self-represented status and personal circumstances justified his failure to adduce the evidence earlier.

The Court allowed the appeal in part, setting aside the judgment regarding the two disputed loans and remitting the matter back to the Superior Court.

The appellant appealed an order dismissing her motion to amend a judgment that approved an infant settlement, and sought leave to extend the time to appeal the original judgment.

The Divisional Court quashed the appeals, finding it lacked jurisdiction under section 19 of the Courts of Justice Act because the orders appealed from did not require payment of any amount by the appellant, and no leave to appeal had been granted.

The appellants appealed a trial judgment finding them liable for defamation and awarding punitive damages.

They argued the trial judge erred by refusing to admit a 1996 newspaper article regarding the respondent's reputation, failing to consider a notice to admit, improperly using contempt evidence, and misapplying the test for punitive damages.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's evidentiary rulings or procedure.

The Court also upheld the punitive damages award, noting the malicious and outrageous nature of the defamation warranted punishment and deterrence.