Susan E. Healey

The plaintiff moved under Rule 49.09 of the Rules of Civil Procedure for judgment enforcing a settlement after accepting the defendant’s “all‑inclusive” offer to settle a personal injury action arising from a motor vehicle accident.

The acceptance letter stated that the plaintiff would not be responsible for a defence medical examination cancellation fee.

The defendant argued the added wording constituted a counter‑offer and prevented contract formation.

The court held the statement did not alter the legal terms of the offer because the cancellation fee risk was already encompassed within the defendant’s all‑inclusive settlement offer.

A binding settlement contract was therefore formed and the court exercised its discretion to enforce the agreement.

Following an adjourned family trial, the court addressed costs thrown away resulting from the respondent’s failure to provide court-ordered financial disclosure.

The court held that significant preparation and trial time had been wasted because disclosure remained incomplete despite prior orders.

After reviewing the applicant’s bill of costs, the court fixed compensable preparation and trial time related to disclosure issues at 43 hours and awarded fees and disbursements.

The court emphasized the importance of compliance with disclosure obligations and professional conduct expectations for counsel.

Costs were ordered payable by the respondent and the non‑dissipation order was varied to permit refinancing of property to fund payment.

The self‑represented plaintiff brought a cross‑motion seeking to amend his statement of claim, consolidate the action with another defamation proceeding, and obtain various procedural relief after the defendant brought a Rule 21 motion to strike portions of the claim.

The court held that the proposed amended pleading did not cure the defects previously identified in the claim, including vague defamation allegations, unsupported negligence claims, and references amounting to an impermissible alienation of affection claim.

The plaintiff also failed to establish that the two proceedings shared sufficient common questions of fact to justify consolidation under Rule 6.01(1).

Most of the requested relief was dismissed, though the parties consented to scheduling the matter to be tried immediately following the related action during the same trial sittings.

Procedural directions were given for documentary discovery, examinations for discovery, and a joint pre‑trial conference.

The defendant brought a Rule 21 motion to strike portions of the plaintiff’s statement of claim alleging interference with inheritance, conspiracy, alienation of affection, intentional infliction of mental suffering, and negligence.

The court applied the Rule 21 test from Hunt v. Carey Canada Inc. and held that several pleaded causes of action disclosed no reasonable cause of action.

The claim for interference with inheritance was speculative because the alleged loss related to a potential future inheritance from a living parent.

The court further held that the tort of alienation of affection does not exist in Canadian law and that the negligence allegations lacked essential particulars.

Multiple paragraphs of the statement of claim were struck and the plaintiff was ordered to amend the pleading.

Following a motion to enforce a settlement, the court had previously set aside the settlement despite finding a binding agreement, due to prejudice considerations favouring the applicants.

The present endorsement addressed costs arising from that motion.

The court found that the applicants’ lawyers’ deficient record‑keeping, failure to follow minimum practice standards, and unprofessional conduct caused unnecessary litigation costs and made the factual inquiry significantly more difficult.

Applying Rule 57.07(1) of the Rules of Civil Procedure and the principles in Young v. Young, the court concluded that the lawyers’ conduct caused unnecessary costs and warranted a personal costs order.

Costs were therefore ordered personally against counsel on a partial indemnity basis.

The plaintiffs brought a motion seeking relief to prevent an administrative dismissal and to permit substituted service of court documents.

The court considered evidence that the responding party had been difficult to serve and that traditional service methods were ineffective.

The court found that staying any administrative dismissal was necessary in the interests of justice.

The court further concluded that service by posting the documents to the responding party’s Facebook page was likely to bring the materials to their attention.

The motion was granted and the requested orders were directed to issue.

The plaintiff sought an interlocutory injunction enforcing restrictive covenants in a license agreement with a former licensee operating a mobile sign business.

After the agreement expired, the former licensee allegedly solicited customers and attempted to continue operating under a competing company within the restricted geographic area.

Applying the test from RJR‑MacDonald Inc. v. Canada, the court found a strong prima facie case that the restrictive covenant was enforceable and had been breached.

The court also found that the diversion of customers and misuse of the plaintiff’s trade name would cause irreparable harm to goodwill and business relations, and that the balance of convenience favoured protection of the plaintiff’s business.

An interim injunction was granted restraining the defendant from operating a competing mobile sign business within the restricted area and from soliciting the plaintiff’s customers pending further review.

The Crown appealed an acquittal on a charge of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams under s. 253(1)(b) of the Criminal Code.

The trial judge had excluded the breath technician’s Certificate because there was no evidence that a true copy had been served on the accused as required by s. 258(7).

The Crown argued the trial judge misapprehended the technician’s oral testimony and that the results could be proven through viva voce evidence without reliance on the Certificate.

The court held that the oral evidence did not establish the test results and could not rely on the excluded Certificate.

As a result, there was no misapprehension of evidence and the acquittal could not be disturbed.

The applicant sought to exclude evidence obtained during the execution of a search warrant at his residence, arguing a breach of his s. 8 Charter rights.

The warrant was based on a tip from a confidential informant regarding marijuana trafficking.

The court applied the Debot framework to assess whether the informant's tip was compelling, credible, and corroborated.

The court found that while the informant's credibility was unascertainable, the compelling nature of the tip, combined with police corroboration of biographical details and the applicant's criminal record, provided sufficient reasonable and probable grounds for the warrant.

The application was dismissed.

The applicant brought motions for contempt against the respondent for failing to return their developmentally delayed daughter after an access visit and for having the daughter interviewed by a lawyer, in breach of a final order.

The respondent brought a cross-motion to appoint a representative for the daughter.

The court found the respondent deliberately and willfully breached the order, noting her history of contemptuous behaviour.

The respondent's cross-motion was dismissed as not being in the daughter's best interests.

The respondent was found in contempt, with sentencing and costs to be determined at a later date.

The Children's Aid Society brought a motion for summary judgment seeking a finding that four children were in need of protection due to the mother's continued relationship with a man who had sexually assaulted one of the children's friends and was alleged to have abused one of the children.

The mother provided sworn evidence that she had ended the relationship and had not exposed the children to the man for over a year.

The court dismissed the motion, finding that the conflicting evidence regarding the mother's intentions and actions raised a genuine issue of credibility that could only be resolved at trial.

The parties disputed the ownership of a portion of beachfront land and an isthmus connecting a small island to the mainland in Georgian Bay.

The respondent held paper title to the disputed land, which had ambulatory boundaries that changed with the water level.

The applicant, who owned the island, claimed possessory title or a prescriptive easement over the disputed land, arguing that she and her predecessors had used it continuously for access and recreation under the mistaken belief that they owned it.

The court found that the applicant had established adverse possession, as the possession was open, notorious, and continuous for the requisite statutory period prior to the land's conversion to the Land Titles system.

The court also held that occasional inundation of the land by water did not interrupt the limitation period for adverse possession of riparian property.

The respondent's expert witness evidence was rejected due to bias.

The applicant was declared the owner in fee simple of the disputed land.

During an ongoing family law trial involving property and financial claims, the court addressed significant disclosure failures by the respondent, which resulted in missing financial documents and inaccurate disclosure affidavits.

The court determined that the trial was not ready to proceed due to incomplete documentary production and ordered the trial adjourned to allow proper review and further disclosure.

Multiple procedural orders were made requiring both parties to identify and produce outstanding documents and to exchange sworn affidavits of documents.

The court also ordered costs thrown away to the applicant caused by the disclosure failures.

In addition, the court granted the applicant interim relief by directing the release of $40,000 from funds held in trust from the sale of the matrimonial home toward an admitted equalization entitlement.

This costs endorsement followed a prior family law ruling concerning support issues.

Although the underlying motion resulted in mixed success, the court found the respondent was largely successful on the principal issue relating to income determination for support purposes.

The court held that the applicant should reasonably have accepted the respondent’s offer to settle, which would have provided greater overall financial benefit and avoided further litigation costs.

Considering the Family Law Rules and the parties’ financial circumstances, the court exercised its discretion to award costs approaching substantial indemnity but reduced the amount because the respondent was not wholly successful.

Costs of $21,893.84, including partial reimbursement of an expert report, were ordered payable within 30 days.

The moving party sought to enforce a settlement under Rule 49.09(a) of the Rules of Civil Procedure after receiving an unconditional notice accepting an offer to settle a vexatious litigant application.

The responding parties argued the acceptance was sent by mistake due to solicitor error and did not reflect their instructions, which required settlement of a related defamation action and cost set‑offs.

The court reviewed the contractual principles governing settlements and the discretionary factors for enforcing settlements where solicitor error is alleged.

While the evidence raised concerns about counsel’s record‑keeping and the possibility that the acceptance was intentionally sent, the court ultimately found the delivery of the unconditional acceptance was plausibly an innocent mistake.

Balancing prejudice between the parties, the court concluded that enforcing the settlement would create greater unfairness to the responding parties and declined to enforce it.

The applicant mortgagee brought an interpleader application seeking directions regarding distribution of surplus proceeds from a power of sale after satisfaction of the mortgage and undisputed claims.

Competing claims were made by execution creditors, Legal Aid Ontario under a registered lien, and a party holding a lump sum child support order obtained five days after the closing date of the sale.

The court considered the priority scheme under the Mortgages Act and the Creditors’ Relief Act, as well as authorities addressing timing of encumbrances and support orders.

It held that priority under the Creditors’ Relief Act applies only where a support order exists at the relevant time and cannot retroactively displace encumbrancers whose interests existed at the date of sale.

Because the support order was made after closing, it ranked behind existing execution creditors and liens.

Following a family law motion in which the respondent was successful, the court determined the appropriate costs award under Rule 24 of the Family Law Rules.

The motion brought by the applicant seeking temporary spousal support, disclosure of extensive medical records, and a restraining order had been dismissed.

The court found the applicant acted unreasonably by pursuing unsupported claims, seeking excessive disclosure, embellishing evidence supporting a restraining order, and significantly altering her spousal support claim shortly before the hearing.

Although the motion compelled some disclosure from the respondent, the applicant’s overall conduct justified costs above partial indemnity but below full recovery.

The court fixed costs payable by the applicant to the respondent at $8,500 inclusive.

The defendants brought a motion to transfer the personal injury trial from Barrie to Toronto.

The incident occurred in Toronto, and most parties and witnesses resided there.

However, the court found that transferring the action to Toronto would result in a substantial delay of at least three years due to court backlogs.

Balancing the factors under Rule 13.1.02(2), the court concluded that the delay would cause undue prejudice to the plaintiff, who was suffering from a traumatic brain injury and financial strain.

The motion was dismissed, keeping the trial in Barrie.

On competing family law motions, the parties sought orders concerning income imputation, child support, spousal support, section 7 expenses, and financial restraints.

The court considered evidence regarding the respondent’s business income, rental income, and debt levels, including an expert financial analysis report, and rejected the applicant’s argument that significant undisclosed cash income should be attributed.

The court accepted the expert analysis and imputed annual income to the respondent of $26,000 for child support purposes, while declining to impute income to the applicant due to her primary caregiving responsibilities for a child with significant developmental needs, though noting she retained some earning capacity.

Child support was fixed at the Guideline table amount based on the respondent’s income, modest spousal support was ordered, and the respondent was required to temporarily continue vehicle-related payments.

Additional orders addressed section 7 expense sharing, release of trust funds to the respondent, and a non‑dissipation order restraining the applicant from further encumbering equity in her property pending resolution of equalization.

The court determined costs following earlier rulings on competing motions brought by the parties.

After reviewing written submissions, the court concluded that success on the motions was divided and that the litigation history reflected extensive lack of cooperation among the parties.

The court therefore declined to award costs and ordered that each party bear their own costs.

The judge also addressed submissions concerning remarks made by defence counsel impugning opposing counsel’s professionalism, cautioning that such conduct could justify solicitor-client costs in future if warranted.