Stephen Sheldoon Appotive

The plaintiffs brought motions to correct errors regarding the identity of defendants and legal representation in a negligence action arising from a residential oil tank installation that allegedly caused a leak.

Due to mistaken assumptions about a business name, the statement of claim was served on a different individual who then retained counsel and filed a defence in the name of another defendant.

The court considered whether to strike the defence, add the correct party, and extend the time for service beyond the ordinary six‑month period.

Applying the principles governing extensions of time and misnomer, the court held that relief should be granted because the plaintiffs intended to sue the installer from the outset and no real prejudice to the affected defendant was demonstrated.

The defence filed without authority was withdrawn, the time for service was extended, and the additional defendant was added.

The defendants brought a motion under rule 21.01(1) of the Rules of Civil Procedure seeking determination of questions of law before trial.

They argued that the plaintiff farmer’s action for damages arising from a motor vehicle collision was barred under s. 267.6(1) of the Insurance Act because he operated an uninsured all‑terrain vehicle (ATV) on a public road, and that his claim for statutory accident benefits was barred by s. 30(1)(a) of the Statutory Accident Benefits Schedule.

The court held that the ATV, used exclusively in farming operations, qualified as a “self‑propelled implement of husbandry” under the Highway Traffic Act.

As such, it was excluded from the definition of motor vehicle and from Ontario’s compulsory automobile insurance regime.

The plaintiff was therefore not barred from suing the negligent driver and his claim for statutory accident benefits was not foreclosed.

Following two family law motions in which the applicant was largely successful, the court determined the appropriate costs award.

The applicant sought substantial indemnity costs of $20,000 while the respondent argued for partial indemnity of approximately $11,540.

The court considered the respondent’s partial success on a custody issue, some overlap in legal work by junior counsel and a law student, and the respondent’s litigation conduct including failure to comply with prior orders and misleading conduct regarding the calculation of matrimonial home sale proceeds.

After applying reductions but emphasizing the applicant’s overall success and the respondent’s conduct, the court fixed costs on an all-inclusive basis.

On a family law motion concerning spousal support, the responding party sought termination of support while the moving party’s income had substantially increased.

The court declined to terminate support on the motion, holding that termination should be determined at trial on a full evidentiary record.

Applying the Spousal Support Advisory Guidelines and considering the parties’ incomes, needs, means, and custodial arrangements for the children, the court adjusted the quantum of spousal support beginning January 2010.

The court ordered stepped amounts reflecting the parties’ financial circumstances and prior reductions, and directed counsel to calculate any resulting overpayment.

The respondent brought a motion to change seeking custody of a teenage child, variation of child support, termination of spousal support, and related relief.

The court granted custody of the child to the father because the child had resided with him for an extended period and custodial authority should reflect the existing residential arrangement.

The court refused to appoint the Office of the Children’s Lawyer regarding the two younger children due to extensive prior assessments and the father’s failure to comply with counselling and parenting program requirements intended to address parental alienation concerns.

Child support was varied using a set-off approach reflecting that one child lived with the father and two with the mother, based on updated income figures.

Summary judgment was also granted to the mother for unpaid proceeds from the sale of the matrimonial home.

In a chiropractic malpractice action alleging negligent treatment causing serious injury, the plaintiffs brought a motion seeking production of raw data underlying a population-based study relied upon by a defence expert and extensive disclosure relating to another defence medical expert.

The court held that the underlying research data was not in the possession, power, or control of the defendants or their expert and could only be obtained through a proper third-party motion under the Rules of Civil Procedure.

Limited procedural directions were issued requiring the defendants to ask the expert to use best efforts to obtain the data and to confirm the existence of a video recording from the defence medical examination.

Most of the requested relief, including production of the expert’s hard drive and extensive materials from the expert’s curriculum vitae, was dismissed.

A law firm sued a departing non-equity partner and his new firm after approximately 60 personal injury contingency files were transferred when the lawyer left the firm.

The plaintiff sought a constructive trust over future contingency fees based on unjust enrichment and breach of fiduciary duty.

The defendants moved for summary judgment dismissing the equitable claims, while the plaintiff sought partial summary judgment for work in progress and disbursements on settled files.

The court held that the unjust enrichment claim raised issues requiring a full trial because contractual documents and statutory arguments did not clearly constitute a juristic reason defeating the claim.

However, the court granted summary judgment dismissing the breach of fiduciary duty allegations, finding no evidentiary basis for the alleged breaches.