M. Suranganie Kumaranayake

This is a costs endorsement following the dismissal of a motion brought by non-parties, Divya Jegasundaram and Rupasundar Jegasundaram, seeking a stay of enforcement of a Writ of Possession and to set aside a prior order.

The court ordered the Jegasundarams to pay costs to Malhotra Holdings Inc. ($12,500) and Krish Kumar Vadivale ($5,500), fixed on a basis approaching substantial indemnity.

The decision emphasized that the Jegasundarams' conduct, including bringing an urgent motion with late or missing factums and books of authorities, and shifting the requested relief, warranted elevated costs due to their non-compliance with the Rules of Civil Procedure and the unnecessary consumption of court resources.

The Applicants brought a motion to compel the Respondent to comply with a previous order regarding the removal of obstructions from a right-of-way over the Respondent's property.

The court found that the Respondent had largely complied with the prior order, particularly concerning the shore well, based on a concession from the Applicants' counsel.

The court determined that other alleged obstructions (cedar trees, hostas, boulder, encroaching trees) were maintenance issues not proven to have been placed by the Respondent, and thus the Applicants were responsible for their removal at their own expense.

The motion was largely dismissed, with the Applicants only gaining permission to clear certain items at their own cost.

The Crown brought an application for summary dismissal of the accused's application for a stay of proceedings, which alleged breaches of Charter ss. 7 and 11(d).

The Crown argued that the accused had failed to comply with the Criminal Proceedings Rules by filing a revised factum and new book of authorities late, expanding her arguments, and intending to call a new witness without sufficient notice.

The court dismissed the Crown's application for summary dismissal, finding that the accused's application had merit and that it was in the interests of justice to allow the accused to rely on her revised materials and call the witness, provided the Crown was given adequate time to respond.

The court balanced the accused's right to present her case with the Crown's right to respond and the need for an expeditious trial.

Ms. Blake sought a stay of proceedings under sections 7 and 11(d) of the Charter, alleging pre-charge delay and lost evidence prejudiced her right to a fair trial.

The court found no evidence of egregious Crown conduct or bad faith.

It determined that Ms. Blake failed to prove actual prejudice, as the lost evidence (cell phone communications, business documentation, and an initial police statement from Mr. Ocran) did not prevent her from presenting a defence, even if it made it more difficult.

The court also noted that some evidence was never in state possession and that police are not obligated to pursue specific defence-directed investigations.

The application for a stay was dismissed.

During a criminal trial for fraud, the accused, Claire Graham and Roslyn Blake, moved for a mistrial and the discharge of two jurors (Juror 1 and Juror 4) due to alleged misconduct involving outside research.

The Crown opposed the motion.

The court found that while Jurors 1 and 4 technically breached instructions by researching the lawyers involved, their conduct was not egregious enough to compromise trial fairness or cause actual prejudice.

The court distinguished their actions from a previously discharged juror (Juror 12) who had researched an accused and was found to be less than candid.

The requests for discharge and a mistrial were dismissed, with the court determining that a strong mid-trial instruction to the jury was the appropriate remedy.

The applicants sought a determination of their rights regarding a 20-foot easement over the respondent's property for access to Chesley Lake.

The respondent disputed the scope of the easement and the right of some applicants to use it.

The court found that all applicants had a valid right-of-way, including a prescriptive easement for the Steckle Applicants.

The scope of the easement was determined to include both vehicular and pedestrian traffic, as well as the right to build and maintain a dock.

The respondent was ordered to remove obstructions she placed on the right-of-way but was not obligated to maintain it.

The Applicant and Respondent, divorced spouses, disputed their date of separation, ownership of the matrimonial home (1 Glendale Avenue, Brampton), retroactive child support, retroactive section 7 expenses, and equalization of net family property.

The court found the date of separation to be August 1, 1993, based on a separation agreement, tax filings, and evidence of separate lives within the same home.

The Respondent's claim for a resulting trust over the Applicant's 50% registered interest in the Glendale property was granted, as the Applicant made no financial contribution and was only on title for financing purposes, rebutting the presumption of joint ownership.

The Applicant's claim for equalization was dismissed as statute-barred.

The Respondent was awarded $39,821 in retroactive child support, while the claim for retroactive section 7 expenses for orthodontics was dismissed as the parties were found to share the expense 50-50 and the Respondent had already paid his share.

The Respondent sought an urgent motion for equal parenting time and the Applicant raised a conflict of interest against the Respondent's counsel.

The court dismissed the conflict of interest claim, finding the Applicant had not met her onus.

Regarding parenting time, the court found the Respondent had not established equal parenting time but had been exercising more than previously ordered.

The court varied prior orders to establish a structured parenting schedule for the Respondent, including one overnight and one mid-week visit per week, and time on special occasions, in the children's best interests.

The Applicant sought urgent access to his 20-month-old child, Mikael, after being arrested and released with conditions prohibiting contact with the Respondent and requiring third-party arrangements for child contact.

The Respondent brought a cross-motion seeking supervised access and temporary custody.

The court granted leave for the urgent motion, finding that the child's well-being was impacted by the lack of contact.

The court denied the Respondent's request for supervised access, finding insufficient evidence of risk, and established a temporary access schedule for the Applicant to have unsupervised access three times a week at the paternal grandmother's home, with specific arrangements for transportation and exchanges.

The Applicant sought to transfer the collection of a lump sum for future spousal support from the Clerk of the Superior Court to the Family Responsibility Office (FRO), and a determination of post-judgment interest.

The court dismissed both requests, finding the Applicant failed to meet the onus for transfer, especially given her criticisms of FRO's record-keeping and the existing effective garnishment mechanism.

The court also determined costs for the motion, awarding them to the Respondent.

The appellant, Aijun Zhang, appealed a Small Claims Court decision dismissing his claim for unpaid cash incentive award (CIA), bonus, and vacation pay following his termination from Dell Canada Inc. The appellant had signed a severance offer, acknowledgment, and final release.

The Divisional Court upheld the Deputy Judge's findings that the appellant was not entitled to the additional CIA or other payments, as the conditions for the CIA (continued active employment) were not met, and the signed release barred further claims.

New arguments of wrongful dismissal and inadequate notice were not considered as they were not raised at trial.

The appeal was dismissed without costs.

The plaintiffs sought specific performance for a failed new home purchase, alleging the vendor acted in bad faith by refusing a closing extension and that there was an implied financing condition.

The defendants moved for summary judgment, seeking dismissal of the action, termination of the Agreement of Purchase and Sale (APS), and forfeiture of the deposit.

The court granted summary judgment, finding the vendor acted in good faith, no implied financing condition existed, the property was not unique, and the purchasers defaulted, leading to deposit forfeiture.

The creditor, RZCD Law Firm LLP, brought a motion seeking to enforce a notice of garnishment against the garnishee, IBM Canada Ltd., for an outstanding debt owed by the debtor, Victor Brian Choo-Shee-Nam.

The creditor asserted that the garnishee failed to remit payments as directed and did not serve a garnishee's statement.

The garnishee argued that the original notice of garnishment did not apply to the debtor's subsequent period of re-employment and that garnishment proceedings were stayed by a consumer proposal.

The court dismissed the creditor's motion, finding that the garnishee was not obligated to file a garnishee's statement within 10 days as it initially remitted payments, nor was it required to provide notification when the debtor's employment ended.

Crucially, the court held that the original notice of garnishment did not apply to the debtor's re-employment period due to Rule 60.08(13)(b), which excludes debts arising from employment commencing after the notice is served.

The applicant brought a motion to annul the respondent's bankruptcy and set aside the conveyance of a vacant property.

The respondent had made an assignment into bankruptcy amidst ongoing family law litigation concerning equalization and financial disclosure.

The Licensed Insolvency Trustee, represented by counsel, opposed the motion, arguing the respondent met the definition of an insolvent person and raising a preliminary jurisdictional issue.

The court affirmed its jurisdiction to hear bankruptcy matters, finding that all Superior Court judges have jurisdiction under the Bankruptcy and Insolvency Act.

However, the motion to annul the bankruptcy was dismissed without prejudice because the applicant failed to provide proper notice to all creditors, a critical procedural requirement.

This motion concerned an application to strike portions of an amended counterclaim pursuant to Rules 21 and 25 of the Rules of Civil Procedure.

The moving party sought to strike paragraphs alleging punitive damages, narrative context, and various torts, arguing no reasonable cause of action was disclosed, or that the pleading was frivolous, vexatious, or pleaded evidence.

The court granted the motion in part, striking several paragraphs for failing to concisely plead material facts or for ambiguity regarding the causes of action, with leave to amend.

Claims for punitive damages and certain allegations related to abuse of process were allowed to stand.

An extension of time to file a statement of defence was also granted.

The Applicant sought various orders, including intensive family reunification therapy for the children and the Respondent, a 90-day "black-out" period where children would reside with the Applicant without contact with the Respondent, and payment of therapy fees.

The court dismissed the requests for intensive therapy and the black-out period due to insufficient evidence on the nature of the therapy and the children's views, particularly given their ages.

The court ordered a division of outstanding and future Accendus Group fees between the parties, clarifying the scope of a previous order by Miller J. The Applicant's request for additional costs from a prior motion was dismissed.

The applicant brought a motion challenging a retainer agreement with the respondent law firm, which was dismissed.

The court ordered parties seeking costs to file written submissions within a specified timeframe.

Neither party filed submissions, leading to an order that there would be no costs awarded for the motion.

The Applicants sought a direction for funds from a property sale and costs.

Respondent Amrita Randhawa Gill moved to strike portions of affidavits based on settlement privilege.

The court dismissed the motion to strike, finding no settlement privilege for the emails in question regarding the Applicants' claims for monies owed or ownership interest.

The court also converted the entire Application into an Action due to material facts in dispute and credibility issues that could not be resolved in an application.

The Defendant brought a motion seeking a further examination for discovery and production of documents from Plaintiff Mark Birikorang.

Although the substantive issues were settled by consent, the parties disagreed on costs.

The court found the motion necessary due to the Plaintiff's initial refusal to attend a third examination.

The Defendant was awarded costs, but the claimed amount was reduced from $7,572.70 to $4,000 for fees, plus $560.50 for disbursements, totaling $4,560.50, payable by the Plaintiff Mark Birikorang.