Susan E. Healey

The applicants, Eleanor and Patrick Coulson, brought a motion under s. 137.1 of the Courts of Justice Act to dismiss a counterclaim by the respondents, Alexander Muskoka (Gravenhurst) Inc. et al., arguing it was a Strategic Lawsuit Against Public Participation (SLAPP).

The counterclaim alleged breach of Minutes of Settlement by the Coulsons for opposing a retirement residence development.

The court found that while the development itself was a matter of public interest, the specific expressions made by the Coulsons, which formed the basis of the counterclaim, were primarily about their private property interests (e.g., trees, sightlines, property boundaries) and compliance with the Minutes of Settlement, rather than broader public concerns.

Therefore, the Coulsons failed to meet the threshold burden of proving that their expressions related to a matter of public interest, and the motion to dismiss the counterclaim was dismissed.

This motion concerned temporary child and spousal support.

The applicant sought support based on an imputed income for the respondent, alleging significant non-disclosure and misleading statements regarding his business interests and assets.

The court found the respondent's evidence untruthful and incomplete, particularly concerning his hotel ownership and capital gains.

Consequently, the court imputed an income of $440,862 CND to the respondent for 2023, based on the family's pre-separation lifestyle and the respondent's current expenses.

The court ordered ongoing child and spousal support, along with retroactive payments for the period of January to September 2023.

The plaintiffs sought leave to amend their statement of claim to substitute "John Doe" and "ABC Corporation" with specific names (Michael George Alexander Mills and 564242 Ontario Limited) on the basis of misnomer, and also sought leave to bring this motion after the action was set down for trial.

The court dismissed the motion, finding that the plaintiffs had not provided a reasonable explanation for the extraordinary delay in identifying the correct defendants and bringing the motion, and that the proposed defendants would suffer non-compensable prejudice due to the lengthy delay.

The accused was tried on historic sexual offence charges arising from allegations by his younger half-brother.

The case turned entirely on the complainant's credibility and reliability, including delayed and piecemeal disclosure, inconsistencies, and the treatment of historic allegations recalled from childhood.

Applying the governing principles for historic sexual abuse evidence, the court rejected a motive-to-fabricate theory, accepted that the complainant's memory frailties were consistent with trauma and the passage of time, and found a history of sexual misconduct proven beyond a reasonable doubt.

The court was satisfied beyond a reasonable doubt that two specific incidents fell within the indictment period, acquitted on the invitation count, and convicted on counts 1, 2 and 5.

The plaintiff, R-J Machinery Inc., sought judgment for additional charges incurred in supplying and modifying an automated machine for the defendant, Exel Canada Inc. Exel counterclaimed for damages, alleging the machine was not fit for purpose or of merchantable quality.

The court found that the machine was designed and built to specifications based on samples provided by Exel, and that subsequent performance issues were caused by Exel's use of irregular and warped components, contrary to the contract's express terms.

The court determined that Exel had agreed to pay for the necessary modifications on a time and material basis.

Consequently, the plaintiff's claim for payment was largely granted, and the defendant's counterclaim for breach of warranty was dismissed.

The plaintiff, General Motors of Canada Company ("GM"), brought a motion for a permanent and/or interlocutory injunction against the defendant, Chidiebube Osita-Adubasim, to prevent trespassing, harassment, intimidation, assault, and mischief at GM's premises.

The defendant, a former contract employee whose employment was terminated due to sexual harassment complaints, had repeatedly attempted to gain unauthorized access to GM's Oshawa Assembly Plant, engaging in aggressive and threatening behavior, including assaulting a security guard.

Despite trespass notices and police citations, the defendant's conduct persisted.

The court applied the R.J.R.-MacDonald test for injunctive relief, finding a strong prima facie case of tortious and unlawful conduct, irreparable harm to GM's employees and operations, and that the balance of convenience overwhelmingly favored granting the injunction.

The motion was granted, and the injunction was ordered to remain in effect indefinitely, with a term requiring police assistance in enforcing the order.

The applicant sought a review of his detention order under s. 520 of the Criminal Code.

He had an extensive criminal record and was facing serious drug and weapons charges, some of which were incurred while on release.

The applicant proposed a new surety and GPS monitoring as a change in circumstances.

The court found the proposed surety lacked sufficient knowledge and influence over the applicant, and the evidence regarding GPS monitoring was inadequate.

The application was dismissed on the secondary ground due to the high risk of reoffence.

This is a costs ruling following a 16-day trial where the defendant, TD General Insurance Company, was the successful party, having proven fraud against the plaintiff, Shelly Legault.

The defendant sought substantial indemnity costs of over $366,000.

The court, exercising its discretion under the Courts of Justice Act and Rule 57.01, found the plaintiff's conduct (perpetrating fraud, suing for $1M, and prolonging litigation for seven years) warranted substantial indemnity costs.

While acknowledging some excessive time spent by defendant's counsel due to inadequate investigation, the court ultimately fixed the costs payable by the plaintiff to the defendant at $289,609.84, inclusive of fees, disbursements, and HST, balancing reasonableness and proportionality.

During a personal injury jury trial involving a laceration and subsequent amputation, the court ruled on the permissible ranges of damages counsel could suggest to the jury.

The court also reversed an earlier ruling, deciding to ask the jury to specify the particulars of the defendant's negligence due to scant liability evidence.

Finally, the court granted the defendant's request for an adverse inference instruction regarding the plaintiff's failure to call treating health professionals, noting their evidence was material to causation and damages.

During a personal injury trial involving a plaintiff who was injured by an unidentified hazard in a hardware store, the defendant sought to have the issue of contributory negligence put to the jury.

The court dismissed the request, finding no evidentiary basis for contributory negligence because neither party could identify a foreseeable risk or hazard that the plaintiff failed to take reasonable care to avoid.

The plaintiff sued her home insurer after it denied her claim for a fire loss.

The insurer denied the claim on the basis that the plaintiff committed fraud in her claim for Additional Living Expenses (ALE) by submitting a fake lease and using the rent money for other purposes.

The court found that the plaintiff and her purported landlord engaged in a deliberate scheme to obtain money from the insurer under the guise of rent.

Because the plaintiff made a willfully false statement in her proof of loss regarding the ALE, her entire claim was vitiated.

The plaintiff's action was dismissed, and the insurer's counterclaim for repayment of amounts already paid out was granted.

Following a successful motion by the landlord to terminate a commercial lease and obtain immediate possession due to over $1 million in rent arrears, the court determined costs.

The landlord sought costs on a substantial indemnity basis pursuant to the lease terms and due to the tenant's unreasonable conduct, including advancing meritless arguments and refusing to approve the draft order.

The court awarded the landlord $45,000 in costs on a substantial indemnity basis, payable forthwith.

The defendant employer brought an undefended motion for summary judgment to dismiss the plaintiff's wrongful dismissal action.

The plaintiff had previously signed a full and final release after a mediation and received settlement funds, but subsequently commenced this action.

The court granted summary judgment, finding that the unambiguous release and the expiry of the two-year limitation period operated as complete bars to the plaintiff's claim.

The landlord brought a motion for an order declaring a commercial lease terminated and for a writ of possession due to the tenant's failure to pay rent for 29 months.

The tenant argued it was entitled to withhold rent and sought an abatement, alleging the landlord breached the lease and its duty of good faith by failing to disclose redevelopment plans and failing to maintain the shopping centre.

The court found no breach by the landlord, noting the tenant had contracted out of any right to abatement.

The court denied the tenant's request for relief from forfeiture due to its unreasonable conduct and the significant rent arrears of over $1 million.

The landlord's motion was granted.

The appellant, acting as estate trustee, appealed a decision dismissing an application for a declaration that the respondent improperly took approximately $100,000 from the deceased.

At the hearing, the Divisional Court raised the issue of monetary jurisdiction, noting the amount in dispute exceeded its jurisdiction and did not fall under the Estates Act.

The self-represented appellant requested the appeal be transferred to the Court of Appeal.

Finding an arguable case on the merits and no prejudice to the non-attending respondent, the court ordered the appeal transferred to the Court of Appeal pursuant to s. 110 of the Courts of Justice Act.

During a trial regarding an insurance claim denial, the plaintiff brought a mid-trial motion to exclude the testimony of two of the defendant's witnesses.

The plaintiff argued that the defendant's financial compensation of these witnesses for their preparation time and trial attendance constituted an abuse of process.

The court found that the witnesses, who were former employees and agents of the defendant, were 'professional' fact witnesses who required extensive preparation time to review voluminous documents.

The court held that compensating such witnesses for their preparation time is reasonable and does not automatically taint their evidence.

The motion to exclude the testimony was dismissed.

This decision addresses costs following a successful summary judgment motion by the Royal Bank of Canada against the defendants for mortgage default.

The court considered the mortgage's contractual provision for "reasonable and necessary costs" and applied the factors under Rule 57.01(1) of the Rules of Civil Procedure.

The defendants' conduct, including a complicating cross-motion and late-raised issues, increased the plaintiff's legal expenses.

The court found the plaintiff's costs outline largely reasonable, making a minor adjustment for delegation.

The final award was $18,000, to be paid jointly and severally by both defendants, emphasizing their shared responsibility for the debt and enforcement costs despite internal disputes.

The plaintiffs, former co-owners of a property, sued the defendants, real estate appraisers, for negligence and breach of contract arising from an appraisal report prepared for a prior arbitration.

The defendants brought motions for summary judgment to dismiss the claims based on expert witness immunity.

The court granted the defendants' motions, finding that the appraiser acted as an expert witness in the arbitration and is therefore absolutely immune from civil suit by both the adverse party and his own client for his report and testimony.

The court also held that issue estoppel did not apply to bind the defendants to the arbitrator's findings, as they were not privies to the arbitration.

The plaintiff developer brought a motion for summary judgment against the defendant purchasers for breach of an agreement of purchase and sale for a residential property.

The defendants failed to close the transaction after requesting multiple extensions and failing to secure financing.

The court found no genuine issue requiring a trial, rejecting the defendants' arguments regarding alleged misrepresentations and property valuation.

The plaintiff was awarded $381,971.72 in damages, representing the difference in resale price and carrying costs, plus $22,000 in costs.

Following a successful motion for summary judgment, the moving parties sought costs on a full indemnity basis.

The court found that the responding parties engaged in egregious litigation conduct, including providing false evidence, hiding evidence, and commencing a spurious counterclaim that amounted to an abuse of process.

The court held that an award of punitive damages does not preclude an award of full indemnity costs where the conduct warrants it.

Costs were fixed at $230,000 on a full indemnity scale.