Stephen T. Bale

The plaintiffs, mortgagees, brought a motion seeking an order to compel the defendants, mortgagors, to deliver a statement of defence despite a provincial emergency order suspending procedural timelines.

The mortgage was in default, and evidence indicated significant property deterioration and tax arrears.

The defendants did not respond to the motion.

The court exercised its discretion to override the suspension, finding no evidence from the defendants to justify further delay or contradict the plaintiffs' claims of wasting security.

The motion was granted, ordering the defendants to file a statement of defence within 20 days.

The defendant Certas brought a motion seeking an order for the Ontario Provincial Police and the Ministry of the Attorney General to produce records related to a motor vehicle accident investigation.

The OPP did not oppose the motion, provided privacy interests were protected.

However, the Crown Law Office (Civil), representing the Ministry, did not respond, leading the court to question the efficacy of service.

The court clarified that during the Covid-19 emergency, service on the Crown for civil proceedings must be effected by email to a specific address.

The motion was not decided on its merits but was effectively stalled pending proper service on the Crown.

The respondent in an appeal sought costs under Rule 37.09, arguing that the appellants had abandoned their motion for a stay pending appeal.

The appellants' representative had stated in multiple emails that the motion was withdrawn, but no formal notice of abandonment was ever served or filed.

The court held that stating an intention to abandon a motion, or even claiming it has been abandoned, does not constitute abandonment under Rule 37.09(1) without serving and filing a formal notice.

The court found the motion was not abandoned and reserved the costs of this motion to the court hearing the stay motion.

This decision addresses a challenge to the admissibility of an expert witness, Dr. David Gladstone, during a medical malpractice trial.

Counsel for the defendants argued that Dr. Gladstone was not impartial or objective and was in a conflict of interest due to a prior treating relationship with the plaintiff.

The court found that Dr. Gladstone had disclosed the prior relationship to the plaintiffs' counsel, believed it irrelevant to his expert opinion, and was confident in his objectivity.

The court also clarified that treating physicians can act as medical experts, with their duty solely to the adjudicative body, not to advocate for former patients.

The judge qualified Dr. Gladstone as an expert and permitted him to testify, criticizing the defendants' counsel for raising the challenge for the first time at trial as a 'trial by ambush'.

This decision addresses costs arising from a successful interlocutory injunction motion brought by Wayne and Liana Gendron against the City of Kawartha Lakes.

The Gendrons sought substantial indemnity costs, while TD Bank, a non-party, also requested costs.

The City opposed both requests.

The court awarded partial indemnity costs to the Gendrons, finding the City's opposition to the underlying injunction motion to be without merit.

TD Bank's request for costs was denied, as it was a non-party with a mere "watching brief" whose counsel's attendance added nothing to the argument.

The offender requested an earlier hearing date for a pending dangerous offender application, arguing the only remaining issue was credit for pre-sentence custody.

The court initially agreed to proceed by teleconference.

However, after reviewing the sentencing briefs, the Crown requested to cross-examine the offender and call institutional evidence regarding Covid-19 measures, prompting the defence to also request to call evidence.

The court concluded the matter was not capable of being heard by teleconference and adjourned the application to its previously scheduled return date.

The court addressed a dispute in a medical malpractice jury trial regarding the wording of causation questions and whether the jury should provide reasons for their findings.

The plaintiffs proposed "caused or contributed to" language, while the defendants advocated for "but for" and requested reasons.

The court accepted the plaintiffs' "caused or contributed to" language, finding no compelling reason not to translate the "but for" test into everyday language, and rejected the request for the jury to provide reasons, citing the risk of confusion and violation of jury secrecy.

The defendant Bang Chen moved to set aside a default judgment, prohibit the sale of two mortgaged properties (5 Upperview Place and 51 Dempster Street), set aside writs of possession, and stay the action.

The court dismissed the motion to prohibit the sale of 5 Upperview Place, finding the power of sale properly exercised despite claims of improper renewal, deficient redemption period, improper service, and incorrect amounts.

However, the court found the three-month interest penalty improper.

While the default judgment was not set aside due to lack of a defence on the merits, its enforcement was stayed for 51 Dempster Street, and possession of that property was restored to the defendants, pending an accounting of the amounts owed.

Following the dismissal of his appeal, the appellant opposed the respondent's request for costs, arguing the court made errors in its decision.

The Divisional Court rejected this argument, noting the appellant's application for leave to appeal to the Court of Appeal had already been dismissed with costs.

The court fixed the respondent's costs of the appeal at $15,000.

The plaintiffs brought a motion to continue an interim Mareva injunction against the defendants following an aborted real estate transaction.

The plaintiffs also moved to file fresh evidence and for security for costs.

The court found the plaintiffs established a strong prima facie case and a serious risk of asset dissipation, continuing the injunction against the defendants' real estate properties.

The motions to file fresh evidence and for security for costs were dismissed.

The Gendrons moved for an interlocutory injunction to prevent the City of Kawartha Lakes from selling their home, which was subject to a priority lien under the Environmental Protection Act.

The City opposed, arguing estoppel, res judicata, failure to meet the injunction test, and lack of an undertaking for damages.

The court granted the prohibitive injunction, finding serious issues to be tried regarding the lien's validity and amount, irreparable harm to the Gendrons and TD Bank, and the balance of convenience favoring the Gendrons.

The court also ordered priority for the underlying motions.

The Municipal Property Assessment Corporation (MPAC) appealed a decision of the Assessment Review Board regarding the valuation of a residential property.

The Board had found that MPAC failed to meet its burden of proving the property's current value and, as a result, fixed the assessment at the last uncontested value rather than determining the current value.

The Divisional Court allowed the appeal, holding that the Board's approach was contrary to the Assessment Act, which strictly requires the Board to determine the current value of the property.

The matter was remitted back to the Board.

The plaintiffs, owners of a 50-acre parcel and an adjacent 200-acre parcel, sought declaratory and injunctive relief regarding a right-of-way over the defendant's farm.

The plaintiffs intended to develop the property and sought declarations permitting them to alter the right-of-way for year-round vehicular access, remove gates, and access the 200-acre parcel.

The court dismissed the action, finding that the proposed development lacked municipal approval, making the requested declarations hypothetical.

The court also held that the plaintiffs could not use the right-of-way to access the 200-acre parcel, which was not the dominant tenement.

The offender was found guilty of sexual interference and sexual exploitation of a 15-year-old victim.

The Crown sought a seven-year sentence, while the offender sought a significantly reduced sentence due to PTSD stemming from harsh pre-trial custody conditions on prior unrelated charges.

The court found the PTSD to be a mitigating factor and sentenced the offender to five years' imprisonment, reduced to 3 years and 211 days after applying enhanced credit for harsh pre-sentence custody conditions including lockdowns.

The Public Guardian and Trustee applied to be appointed as the permanent guardian of property and personal care for a young woman with a developmental disability and a severe seizure disorder.

The respondent father opposed the application, seeking to be appointed guardian himself, despite his ongoing opposition to her medical treatment plan and residential placement.

The court found that the young woman was thriving in her current placement and receiving appropriate medical care.

The court concluded that the father's fervent opposition to her care plan raised concerns that he would interfere with her treatment if appointed, and ordered that the PGT remain as her guardian.

The offender, previously convicted of tax fraud and ordered to pay a fine in lieu of forfeiture, applied to extend the time for payment under s. 734.3 of the Criminal Code.

The Crown brought a cross-application for a warrant of committal under s. 734.7 due to default in payment.

The court dismissed the offender's application, finding that s. 734.3 does not apply to fines in lieu of forfeiture.

The court also dismissed the Crown's application, concluding that the Crown had not established that the offender refused to pay without reasonable excuse, nor that civil enforcement mechanisms were inappropriate.

The plaintiff, a 43-year-old grader operator with 15 years of service, moved for summary judgment on a wrongful dismissal claim against the Township.

The court determined a reasonable notice period of 15 months, rejecting the defendant's argument of inadequate mitigation efforts due to insufficient evidence.

The plaintiff's claim for general damages for bad faith dismissal was dismissed, as the Township's failure to continue benefits was not deemed bad faith, and an employee's defamatory statement was outside the scope of employment and lacked proven reputational harm.

Damages were calculated for lost wages, overtime, benefits, and pension, but not for lost vacation pay.

The applicant sought a declaration of entitlement to a two-thirds share of his deceased mother-in-law's home, arguing that a previous joint tenancy transfer to his late wife severed the tenancy and made it a matrimonial home.

The respondents, the deceased's grandchildren, argued the transfer was a resulting trust.

The court found the applicant failed to rebut the presumption of resulting trust arising from the parent-to-child transfer.

The application was dismissed, and the respondents were awarded partial indemnity costs, reduced due to unnecessary separate representation.

The appellants appealed a trial judgment enforcing a construction lien against them.

The trial judge had applied the 'special circumstances' doctrine to extend the limitation period to add a tenant corporation as a defendant, and pierced the corporate veil to find the landlord corporation was an 'owner' under the Construction Lien Act due to common ownership.

The Divisional Court allowed the appeal, holding that the 'special circumstances' doctrine does not apply to the mandatory statutory deadlines in the Construction Lien Act, and that the corporate veil cannot be pierced absent conduct akin to fraud.

The respondent, having successfully defended an application for judicial review, sought partial indemnity costs of approximately $42,600.

The applicants argued the amount was excessive and disproportionate, noting their own full indemnity costs were only $21,000.

The Divisional Court agreed the hours spent and number of lawyers involved by the respondent were disproportionate to the issues, which involved no factual disputes.

The court fixed costs at $25,000 inclusive of disbursements and HST.