Susan E. Healey

During a child protection trial under the Child and Family Services Act, the society brought a mid‑trial motion seeking to admit documents from another society’s file relating to a prior protection proceeding involving a different child of the respondent.

The court considered whether the documents qualified as business records under s. 35 of the Ontario Evidence Act.

Documents containing summaries of anonymous allegations and an agreed statement of facts from the earlier proceeding were excluded because they contained prejudicial hearsay and lacked reliability.

However, assessment and service plan documents prepared by a caseworker in the ordinary course of child protection work were admitted as business records.

The excluded materials could still be used for cross‑examination of the respondent.

The moving defendants sought judgment under Rule 49.09 of the Rules of Civil Procedure to enforce a settlement allegedly accepted by the self-represented plaintiffs in a long‑running right‑of‑way dispute.

The plaintiffs had emailed questions about the offer and later returned a signed acceptance selecting one of two settlement options concerning the right‑of‑way location.

They later argued no agreement had been reached because their earlier email raised unresolved issues about the road location and user fees.

The court held that the earlier email constituted a request for clarification rather than a counter‑offer and that the signed document and confirming email amounted to unequivocal acceptance within the time limit.

Judgment was granted in accordance with the settlement.

The plaintiff brought a motion for summary judgment seeking over $83,000 related to a failed restaurant venture, or alternatively $30,000 based on a promissory note signed by the defendants.

The court found that while the broader monetary claims and allegations of fraudulent conveyance involved contentious factual issues requiring a trial, there was no genuine issue requiring a trial regarding the promissory note.

The defendants failed to establish duress or ambiguity in the note.

The court granted partial summary judgment for $28,800 under the promissory note and dismissed the requests for an injunction and declaration of fraudulent conveyance.

The moving party sought an order requiring production of a solicitor’s reporting letter and account relating to the purchase of a condominium allegedly funded through misappropriated construction trust funds.

The responding parties resisted production on the basis of solicitor-client privilege.

The court held that reporting letters and solicitor accounts arising from real estate transactions are generally privileged as communications directly related to legal advice and services.

The court further held that allegations of fraud alone are insufficient to displace privilege without a prima facie evidentiary basis.

As the moving party failed to establish a prima facie case of fraud, the privilege remained intact and production was refused.

Costs decision following an application in which the municipality obtained a permanent injunction restricting the respondent’s use of an outdoor wood burning furnace for part of each year due to interference with neighbouring properties.

Both parties sought partial indemnity costs and relied on settlement positions to justify their claims.

The court rejected the respondent’s argument that his prior settlement offer placed the municipality in a worse position than the judgment, noting that the offer required payment of legal fees and equipment installation costs.

While the municipality succeeded in obtaining an injunction, the relief granted was narrower than requested because the restriction applied only for part of the year.

Considering partial success and the factors in Rule 57.01 of the Rules of Civil Procedure, the court awarded reduced costs to the municipality.

The applicant municipality sought a permanent injunction under section 440 of the Municipal Act, 2001 to restrain the respondent from operating an outdoor wood-burning furnace, alleging it contravened a by-law prohibiting emissions that unreasonably interfere with the normal enjoyment of property.

Neighbours complained of thick smoke infiltrating their homes and preventing outdoor activities.

Applying nuisance law principles, the court balanced the severity of the interference against the utility of the furnace.

The court found the smoke constituted an unreasonable interference during the warmer months and granted a permanent injunction prohibiting the operation of the furnace between April 1 and October 15 annually.

The plaintiff sued his mother and sister to enforce an alleged oral agreement concerning a 100-acre parcel of land.

The plaintiff claimed he was entitled to ownership of certain portions of the land and a significant share of the profits from the sale of subdivision lands to a developer, in exchange for his efforts in representing his mother at Ontario Municipal Board hearings.

The court dismissed the action, finding no legally enforceable agreement existed.

The court concluded there was no mutual intention to create legal relations and that the essential terms of the alleged agreement lacked certainty.

The mother's counterclaim for damages was also dismissed for lack of evidence.

Following dismissal of a civil action for delay at a status hearing, several defendants sought partial indemnity costs.

The court assessed the reasonableness of the amounts claimed under Rules 57.01 and 57.07 of the Rules of Civil Procedure and the factors governing proportionality and reasonable expectations.

The court found that the plaintiff’s reliance on extraneous affidavit evidence unnecessarily complicated the hearing and increased costs, and that the proceeding itself arose from the plaintiff’s dilatory conduct.

While the hourly rates generally complied with the applicable practice direction, the total amount sought by one defendant was considered excessive for a half‑day motion-like hearing.

The court reduced certain claimed amounts and fixed costs payable to the successful defendants.

The Crown appealed an acquittal on a charge of operating a motor vehicle with blood alcohol exceeding the legal limit.

The trial judge had found the Crown failed to prove that a proper breath demand under s. 254(3) of the Criminal Code had been made, noting the absence of explicit notebook entries and the officers’ lack of independent recollection of reading the demand.

On appeal, the Crown argued the trial judge erred in assessing the evidence and that a document prepared by the breath technician should have been treated as substantive proof of the demand.

The appeal court held that the argument regarding the document had not been advanced at trial and could not ground appellate intervention.

Applying the deferential standard of review for factual findings, the court concluded the evidence was capable of supporting the trial judge’s conclusion and dismissed the appeal.

The appellant appealed a sentence of 15 months’ imprisonment followed by two years’ probation imposed for assault causing bodily harm under s. 267(b) of the Criminal Code.

The appellant argued the sentence was unduly harsh because the sentencing judge failed to give sufficient weight to mitigating factors, including rehabilitative efforts and sobriety, and gave excessive weight to the appellant’s youth record.

The court held that the sentencing judge carefully considered both mitigating and aggravating factors, including the deliberate nature of the assault, the serious injuries caused, and the appellant’s lengthy youth criminal record involving violent offences.

The court emphasized that appellate intervention is warranted only where a sentence is clearly unreasonable and noted that a sentence exceeding the Crown’s suggested range is not an error in principle.

The appellant failed to demonstrate that the sentence fell outside the appropriate range and the appeal was dismissed.

The appellant appealed a conviction for care and control of a motor vehicle with a blood alcohol level exceeding the legal limit.

The central issue was whether the appellant had rebutted the statutory presumption of care or control under s. 258(1)(a) of the Criminal Code by establishing that he occupied the driver’s seat for a purpose other than setting the vehicle in motion.

Evidence indicated that the appellant had surrendered his keys and that alternative plans existed for transportation home, including being driven by another person or waiting for a ride from a third party.

The appeal court found that the trial judge failed to properly consider this evidence and may have improperly relied on a negative inference arising from the absence of corroborating testimony.

The court held that the evidence, assessed in accordance with the framework in W.(D), could not reasonably support a conviction.

The plaintiff brought a motion for judgment enforcing an accepted settlement under Rule 48.09 of the Rules of Civil Procedure in relation to a wrongful dismissal action and a related disability benefits claim.

The motion sought identical relief to a companion motion in a related court file.

The court dismissed the motion for the same reasons provided in the companion decision released the same day.

As costs had already been awarded in the companion matter, no additional costs were ordered for this motion.

The plaintiff brought a motion seeking judgment in the terms of an accepted settlement under Rule 48.09 of the Rules of Civil Procedure in relation to wrongful dismissal and disability benefits actions.

By the time of the hearing, the settlement funds had been paid and the only remaining issue was costs of the motion.

The court reviewed the settlement timeline and found that payment was made within a reasonable period after the plaintiff’s counsel satisfied conditions required under the minutes of settlement.

The court held the motion to enforce settlement was premature and unnecessary, particularly given the absence of any payment deadline and the defendant’s ongoing communications.

Costs were awarded to the defendant for having to respond to the motion.

The plaintiff brought a motion under Rule 48.09 of the Rules of Civil Procedure seeking judgment enforcing an accepted settlement in a wrongful dismissal and disability benefits dispute.

Although a settlement agreement had been reached in principle, disputes arose regarding the characterization of settlement amounts, delivery of settlement documents, and requests for confirmation of the plaintiff’s capacity to enter into the agreement.

The plaintiff commenced a motion to enforce settlement before all settlement funds had been delivered.

The court found the motion to be premature and unnecessary, noting that payment timelines were reasonable given the circumstances and that no payment deadline existed in the Minutes of Settlement.

The court dismissed the motion and ordered the plaintiff to pay the defendant’s costs.

The moving party brought a motion under Rule 48.09 of the Rules of Civil Procedure seeking judgment in the terms of an alleged accepted settlement relating to companion actions for wrongful dismissal and disability benefits.

The motion sought to enforce the purported settlement agreement against the defendants.

The court relied on reasons released in a companion proceeding involving the same parties and identical relief.

For the reasons given in that related decision, the court dismissed the motion.

No costs were awarded in this proceeding because costs had already been addressed in the companion matter.

The moving party insurer sought an order requiring the corporate plaintiff to post security for costs under Rule 56.01(d) of the Rules of Civil Procedure on the basis that the plaintiff lacked sufficient assets in Ontario to satisfy a potential costs award.

The evidence established that the plaintiff corporation was impecunious and had significant writs of execution registered against it.

The moving party further argued that the plaintiff’s lawyers, acting under a deferred fee arrangement and standing to benefit from any recovery, should be required to post security as creditors of the plaintiff.

The court held that although creditors may in some circumstances be required to post security, solicitors acting under deferred fee arrangements are not analogous to creditors or shareholders with control over litigation.

Ordering lawyers to post security would create a significant disincentive to such retainers and undermine access to justice.

The motion for security for costs was dismissed.

At a Rule 48.14 status hearing, the plaintiff was required to show cause why a civil action alleging breach of contract, breach of fiduciary duty, and professional negligence arising from real estate transactions should not be dismissed for delay.

The court reviewed the procedural history and found that the plaintiff had taken minimal steps to advance the action over several years, failed to provide any reasonable explanation for the delay, and had not diligently pursued service, pleadings, or discovery.

The court further held that the deaths of two key defendants created significant non-compensable prejudice because their evidence regarding the disputed transactions could no longer be obtained.

Applying the principles in Savundranayagam v. Sun Life Assurance Co. of Canada and related authorities, the court concluded that the plaintiff failed to satisfy both branches of the test required to avoid dismissal.

The action was therefore dismissed for delay.

The municipal defendant sought leave to appeal an interlocutory order permitting the plaintiffs to examine a second municipal employee for discovery.

The underlying negligence action arose from a fatal motor vehicle accident allegedly caused by icy road conditions and inadequate road maintenance.

The motions judge had ordered the production of a patrol employee for discovery despite the municipality already producing a representative and while undertakings remained outstanding.

The court held that there was serious reason to doubt the correctness of the order because there was no evidence the first representative could not provide satisfactory answers through undertakings and the legal test for permitting multiple examinations may have been misapplied.

Given conflicting interpretations of Rule 31.03(4) of the Rules of Civil Procedure and the absence of appellate guidance, the issue was found to be of public importance.

The court determined costs following a motion by the defendant to strike portions of the statement of claim.

Although the defendant succeeded in striking certain allegations as irrelevant or related only to a barred wrongful dismissal claim, the relief granted was significantly narrower than what was sought.

The court found the motion was necessitated by the plaintiff advancing irrelevant matters that would have unnecessarily expanded discovery and prolonged the litigation.

However, because the defendant attempted to strike substantially more material than was warranted, full costs were not justified.

Partial costs were awarded to the defendant.

Costs decision following a family law motion previously decided by the court.

The parties reached an agreement regarding costs after the motion ruling was released.

The court endorsed the agreement, ordering the respondent to pay $2,500 in costs to the applicant, inclusive, to be satisfied by way of set‑off against future spousal support.

The court also clarified the total amount to be redirected by the Family Responsibility Office in accordance with the earlier endorsement.