Susan E. Healey

The husband sought leave to appeal an interim order granting the wife exclusive possession of a condominium located in Florida for one week per month, and a stay of that order pending appeal.

The court granted leave to appeal, finding good reason to doubt the correctness of the order because the Family Law Act limits exclusive possession to matrimonial homes situated in Ontario, and the motions judge did not fully consider whether the court could exercise in personam jurisdiction over foreign property.

However, the court dismissed the motion for a stay pending appeal, finding the husband would not suffer irreparable harm.

Following a successful claim for possessory title, the claimant sought costs for two protracted appeal hearings.

The court awarded costs on a substantial indemnity basis, fixed at $490,000, citing the claimant's multiple favorable Rule 49 offers to settle and the objector's unreasonable and vexatious conduct throughout the proceedings.

This decision addresses costs following earlier rulings in related applications concerning a commercial lease dispute.

The court found that the responding party had taken an erroneous legal position regarding a mediated settlement and attempted to re‑litigate claims that had already been released.

The conduct led to withheld rent payments and triggered the opposing party’s applications to secure rent payment.

Given the unreasonable litigation position and unsupported allegations of fraud-like misconduct, the court held that costs on a substantial indemnity scale were appropriate.

Costs of $130,000 inclusive were awarded to the successful party.

Following a prior decision involving an application and contempt motion to enforce compliance with municipal zoning and site alteration by-laws, the court determined the appropriate costs award.

The applicant municipality was substantially successful on the application but unsuccessful on the contempt motion.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure and relevant appellate authorities, the court emphasized that costs must be fair and reasonable rather than a strict calculation of actual legal fees.

The court reduced the claimed amount due to duplication of counsel and excessive preparation time.

Costs were awarded on a partial indemnity basis in the amount of $30,000 inclusive.

The insurer brought a motion compelling the insured and her spouse to attend an Examination Under Oath and requiring delivery of a sworn Proof of Loss under a homeowners insurance policy.

The insured argued that such a requirement was unlawful because the statutory conditions in the Insurance Act applied and prohibited additional conditions beyond those prescribed by statute.

The court held that the policy was a multi-peril homeowners policy rather than a fire insurance policy, and therefore the statutory conditions in Part IV of the Insurance Act did not apply.

Relying on Supreme Court of Canada and Ontario authority, the court found that the insurer was entitled to enforce the contractual examination requirement.

The insured was ordered to attend the Examination Under Oath and deliver a sworn Proof of Loss.

The defendant foreign hotel corporation brought a motion to set aside service of a statement of claim, arguing that service at a Toronto office operated by a marketing contractor did not constitute valid service under the Rules of Civil Procedure.

The plaintiff cross-moved for a declaration that service was proper or, alternatively, for validation of service.

The court applied the test for whether a foreign corporation carries on business in Ontario and examined the contractual marketing relationship between the defendant and the Ontario-based marketing company.

It held that the marketing activities were integral to the defendant’s business and constituted carrying on business in Ontario.

Service effected at the Toronto office was therefore valid, and the defendant’s motion was dismissed.

Following a successful motion for summary judgment and application relating to possession of estate property, the estate trustee sought costs against the opposing beneficiaries.

The court considered the principles governing costs in estate litigation and the factors under Rule 57.01(1), including the respondents’ failure to provide sufficient evidence and their unreasonable litigation positions.

The court held that the estate trustee achieved complete success and that the respondents’ conduct justified an award of full indemnity costs.

Costs were ordered payable to the estate and set off against the respondents’ entitlement as beneficiaries unless paid earlier.

The court fixed costs for the two related proceedings totaling $49,000 inclusive of fees, disbursements, and HST.

The responding party brought a motion to transfer an application challenging the validity of a marriage contract to the Family Court branch of the Superior Court of Justice.

The underlying application sought to set aside the contract under s. 56(4) of the Family Law Act and obtain declaratory relief regarding jointly owned real property.

The court held that proceedings under the Family Law Act must be commenced and determined in the Family Court in municipalities where that branch exists, pursuant to ss. 21.1 and 21.8 of the Courts of Justice Act.

Because the application fell squarely within the Family Law Act and York Region has a Family Court, the Superior Court lacked jurisdiction.

The motion to transfer the proceeding to the Family Court was therefore granted.

The defendant corporation moved for summary judgment dismissing a claim in which the plaintiff sought declarations of ownership of company shares and oppression relief under the Business Corporations Act.

The plaintiff alleged entitlement to common and Class B shares arising from an asset purchase agreement and option agreement connected to the sale of an engineering business.

The court held that the plaintiff failed to comply with the contractual requirements for subscribing to the shares, including payment and exercise of the option price specified in the agreements.

As a result, the plaintiff never acquired shareholder rights and the claim had no reasonable prospect of success.

Summary judgment was granted dismissing the action in its entirety.

The appellant appealed a summary conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL of blood.

The appeal alleged errors of law including misapplication of the evidentiary burden under s. 258(1)(c) of the Criminal Code following the Supreme Court’s decision in R. v. St-Onge Lamoureux, improper reliance on earlier breath samples, and failure to assess the reliability of the breath technician’s evidence.

The court acknowledged that the trial judge overstated the evidentiary burden imposed on the accused but held that no substantial wrong or miscarriage of justice occurred.

The evidence supported the reliability of the final two breath samples obtained after the intoxilyzer testing sequence reset and ambient contamination was cleared.

The conviction was therefore upheld.

The applicant, acting as Attorney for Property and Estate Trustee, brought a motion for summary judgment to validate the deceased's 2010 will and 2008 revocation of prior wills, and an application for vacant possession of a property occupied by the respondents.

The respondents challenged the will and claimed an interest in the property based on alleged contributions and an unwritten agreement.

Applying the Hryniak framework, the court found no genuine issue for trial regarding testamentary capacity or undue influence, declaring the 2010 will and 2008 revocation valid.

The court granted vacant possession to the estate, noting the respondents failed to satisfy the Statute of Frauds or provide corroborating evidence under the Evidence Act for an interest in land, but directed a reference to determine any unjust enrichment claim for improvements made to the property.

A municipality brought an application seeking declarations and injunctive relief regarding alleged contraventions of zoning and site alteration by-laws relating to two rural properties.

The municipality alleged that the respondents operated a landscape supply operation, stockpiled fill, and used one property as a contractor’s yard and waste disposal site in a rural zone where such uses were not permitted.

The respondents argued that the activities constituted a lawful continuation or expansion of a pre-existing nursery operation and therefore qualified as legal non-conforming use.

The court held that the respondents’ activities constituted a fundamentally different commercial landscape supply and haulage operation rather than an intensification of the prior nursery use.

Declarations and a permanent injunction were granted restraining the unlawful uses and requiring removal of fill, although the municipality failed to prove civil contempt of a prior interlocutory injunction.

The landlord and tenant under a commercial lease both commenced applications regarding alleged defaults and rent calculations.

The landlord brought a motion to dismiss the tenant's application, arguing that the claims were barred by a prior settlement and mutual release executed in September 2013.

The court applied an objective approach to contractual interpretation and the doctrine of res judicata, finding that the release barred any claims existing prior to September 30, 2013.

However, the court held that the release did not bar the tenant's right to a rent reconciliation for the 2013 calendar year or ongoing rights under the lease.

The court ordered the remaining issues regarding square footage and rent quantum to proceed to trial as an action.

Following a successful summary judgment motion dismissing the plaintiffs’ action against a contractor defendant, the court addressed costs.

The plaintiffs argued that no costs should be awarded due to their financial hardship, the cautious inclusion of the contractor as a defendant, their continued belief in the claim’s merit, and alleged prejudice from former counsel’s pleading deficiencies.

The court rejected these arguments, holding that impecuniosity and subjective belief in a claim do not justify avoiding costs, particularly where plaintiffs chose to continue litigation despite insufficient evidence.

Considering duplication arising from the defendant retaining two law firms and applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court reduced the amounts claimed.

Costs of the motion and the action were fixed at reduced amounts payable by the plaintiffs.

Following a prior finding that the respondent was in contempt of a family court order, the court considered sentencing and costs.

The respondent had wilfully breached multiple provisions of a final parenting order, including failing to return the parties’ adult but developmentally delayed child after access and attempting to involve a previously retained lawyer contrary to the order’s process.

The court emphasized deterrence and the need to uphold the authority of court orders in family proceedings.

A suspended custodial sentence, financial penalties, strict behavioural restraints, and enforcement mechanisms were imposed.

The respondent was also ordered to pay full indemnity costs.

The applicant sought a writ of habeas corpus with certiorari in aid to challenge a correctional decision maintaining his medium-security classification and denying transfer to a minimum-security institution.

He argued that reliance on institutional incidents and his continued association with a motorcycle club violated his Charter rights and rendered the decision unlawful.

The court held that habeas corpus requires a deprivation of liberty, and the applicant’s circumstances involved no change in the nature or conditions of his detention.

The security classification decision therefore did not constitute a deprivation of residual liberty reviewable through habeas corpus.

In any event, the court found the decision reasonable and supported by evidence of continued association with a security threat group.

The moving defendant sought summary judgment dismissing negligence claims arising from alleged flooding of the plaintiffs’ property during a highway construction project.

The plaintiffs alleged that the grading contractor failed to keep the construction site free of obstructions, causing culvert blockages and diversion of water onto their property.

The court refused a late informal request to amend the statement of claim to add additional flooding dates, holding the amendments introduced new causes of action barred by the Limitations Act, 2002.

On the merits, the evidentiary record showed no proof that the contractor caused any blockage and no expert evidence establishing the applicable standard of care or its breach.

Finding no genuine issue requiring a trial, the court granted summary judgment dismissing the claim and all cross‑claims against the moving defendant.

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 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.