Sylvia Corthorn

The plaintiff obtained default judgment against its insurer for a fire loss claim after the insurer failed to deliver a statement of defence.

The insurer brought a motion to set aside the default judgment and stay a notice of garnishment.

The court found that while the insurer did not provide a plausible explanation for its entire period of delay, it demonstrated an arguable defence on the merits regarding the actual cash value of the building and overpayment of lost rent.

Balancing the prejudice to the parties, the court set aside the default judgment and stayed the garnishment, ordering the insurer to pay substantial indemnity costs thrown away.

The accused was charged with historical sexual offences against his daughter, alleged to have occurred between 1974 and 1979 when the family lived in Ontario.

The accused had previously pled guilty to sexual assaults against the complainant occurring between 1979 and 1987 in another province.

At trial, the accused denied any sexual contact during the Ontario years.

The court rejected the accused's evidence but found the complainant's evidence regarding acts of intercourse and fellatio to be unreliable due to inconsistencies and delayed disclosure.

However, the court found the complainant's evidence regarding fondling and digital penetration to be credible and corroborated by prior consistent statements.

The accused was acquitted of rape, sexual intercourse with a female under 14, and incest, but found guilty of indecent assault and gross indecency.

The applicants, beneficiaries of an estate, brought a motion without notice for payment out of court of funds previously paid by the respondent financial institution by way of interpleader.

The funds were traceable to a former advisor who had misappropriated money from multiple clients.

The court reserved its decision, requiring the applicants to serve the financial institution, obtain its consent, and file evidence confirming that other potential victims of the fraud no longer had an interest in the funds.

The plaintiff, as Estate Trustee, brought a motion without notice for payment out of court of funds allegedly misappropriated by the defendant Eagan.

The funds were paid into court by TD Waterhouse in a related proceeding.

The court reserved its decision, requiring the plaintiff to either serve the motion record on the defendants or seek an order dispensing with service, and to provide evidence regarding other potential claimants to the funds.

The plaintiff, the deceased's former common-law spouse, claimed entitlement to a $190,000 life insurance policy provided by the deceased's employer.

The deceased died intestate, and the estate trustees disputed the plaintiff's claim, arguing the estate was the beneficiary.

The estate trustees moved for summary judgment to dismiss the plaintiff's claim, and the plaintiff cross-moved for partial summary judgment.

The court dismissed both motions, applying the Hryniak framework to conclude that granting summary judgment would not fully dispose of the action, as claims against the employer would remain, creating a risk of duplicative proceedings and inconsistent findings on credibility.

The appellant insurer appealed an arbitrator's decision dismissing its pre-hearing motion for documentary disclosure in an indemnity dispute.

The dispute arose after a pedestrian was struck by a car insured by the appellant and claimed statutory accident benefits from the respondent insurer under his father's motorcycle policy.

The appellant sought disclosure regarding how the claim came to be adjusted under the motorcycle policy rather than the stepmother's auto policy.

The Divisional Court allowed the appeal in part, finding the arbitrator's decision unreasonable because he conflated the statutory schemes for priority and indemnity disputes and improperly decided the issue of the claimant's choice of insurer based on an incomplete evidentiary record.

The court ordered the respondent to produce documents related to the claimant's choice of policy.

The applicants brought a motion for approval of a settlement reached on behalf of a minor who was injured in a dog attack.

The proposed settlement included damages, interest, and costs totaling $65,135.82.

The court adjourned the motion, finding that additional evidence was required regarding the minor's psychological injuries, future surgical needs, apportionment of travel expenses, liability compromise, and the proposed investment of the settlement funds outside of the Accountant for the Superior Court of Justice.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claims of misrepresentation and breach of the Consumer Protection Act arising from a vehicle purchase and credit rebuilding program.

The plaintiff brought a cross-motion for leave to amend her statement of claim to include admissions made by the corporate defendant in a related OMVIC proceeding.

The court granted the plaintiff leave to amend the pleading, finding no non-compensable prejudice to the defendants.

The court dismissed the defendants' motion for summary judgment, concluding that genuine issues for trial existed regarding the alleged misrepresentations and statutory violations that could not be resolved on the documentary record alone.

The accused was charged with sexual assault and sexual interference against a 13-year-old complainant whom he met in downtown Ottawa.

The accused argued that the complainant fabricated the events to avoid punishment for skipping school and shoplifting, and alternatively raised the defence of mistaken belief of age.

The court found the complainant's evidence credible and reliable, rejecting the defence's arguments regarding inconsistencies and motive to fabricate.

The court also found the accused failed to take reasonable steps to ascertain the complainant's age.

The accused was found guilty of both charges, with a stay to be entered on one conviction.

Michael Dawson sued Halpenny Insurance Brokers Ltd. (HIBL) and other related entities for financial losses stemming from changes to his mother's will, which he alleged were caused by the defendants' actions.

HIBL moved for summary judgment, asserting it had no involvement in financial management or estate planning and no partnership with Halpenny Insurance Benefit Partners Ltd. (BPL), the entity whose principal advised Dawson's mother.

The court found no actual partnership between HIBL and BPL and determined that Dawson failed to establish his mother subjectively believed in such a partnership or relied on it when dealing with the financial advisor.

Consequently, HIBL's motion for summary judgment was granted, dismissing Dawson's claim against HIBL.

This endorsement addresses the costs of a summary judgment motion where the plaintiff, Premier Drycleaners, was partially unsuccessful.

The defendant, Burnford Realty Limited, sought costs on a substantial indemnity basis, citing Rule 49 and the presumptive rule that costs follow the event.

Premier argued that costs should be payable in the cause, given that substantive issues, including liability for damages, remained unresolved and were referred to a mini-trial.

The court agreed with Premier, ordering that the costs of the summary judgment motion be payable in the cause, reserving the final determination of costs to the trial judge who would have the benefit of hindsight regarding the overall outcome of the action.

The plaintiff sued police officers and the police board arising from a warrantless arrest at her residence, the force used during arrest and detention, subsequent charging decisions, and her treatment in custody.

The court held the arrest was unlawful under both the Trespass to Property Act and the Criminal Code, found excessive force against two officers, and found one arresting officer liable for negligent investigation.

The court also found breaches of ss. 7, 8, and 9 of the Charter, including unreasonable search, arbitrary detention, and a serious s. 7 breach arising from the removal of the plaintiff’s clothing and leaving her naked in a cell for over two hours.

The board was not directly liable for negligent training or supervision absent expert evidence, but was vicariously and statutorily liable for the tortious conduct of liable officers.

Damages were awarded for general damages, loss of earning capacity, expenses, and Charter breaches, but punitive damages were refused.

The applicant sought court approval for a $935,000 accident benefits settlement with the respondent insurer, as required by the insurer due to concerns about the applicant's capacity to manage property.

Despite a prior capacity assessment, the court expressed concerns about the evidence supporting the applicant's capacity and the sufficiency of the record under Rule 7.08 regarding the settlement's best interests.

The court ordered an updated capacity assessment for the applicant, with the report to be filed, and maintained the condition for court approval of the settlement pending further order.

Following a jury verdict, the plaintiff brought a motion for judgment to determine the pre-judgment interest (PJI) rate applicable to general non-pecuniary damages.

The plaintiff argued for a 5% PJI rate, asserting that amendments to the Insurance Act effective January 1, 2015, were not retroactive as PJI is a matter of substantive law, relying on the Divisional Court's decision in Carr v. Modi.

The defendant conceded the court was bound by Carr, despite believing the case law was wrongly decided, given a pending Court of Appeal decision in El-Khodr v. Lackie.

The parties agreed to issue judgment with a 5% PJI rate, with a mechanism to revisit the calculation if the El-Khodr appeal decision impacted it.

The court ordered judgment for the plaintiff in the agreed amount.

The applicant sought an annulment of his marriage, sole custody, and child support.

The respondent opposed the annulment, seeking a divorce, sole custody, and retroactive/ongoing child support.

The court dismissed the annulment request, finding the respondent's prior marriage void *ab initio* due to her minor status and lack of parental consent.

The court granted the respondent sole custody, finding it in the children's best interests given the parents' communication difficulties and the applicant's historical conduct and lack of insight.

Retroactive and ongoing child support were ordered based on imputed income for the applicant, along with a proportional sharing of Section 7 expenses.

The applicant's request for a restraining order was dismissed due to lack of substantiation.

The plaintiffs brought a motion for court approval of a settlement reached on behalf of two infant plaintiffs, who were claimants under the Family Law Act following their father's car accident.

The court identified several deficiencies in the evidence, including the lack of a breakdown between damages and pre-judgment interest, unclear plans for the settlement funds, conflicting information regarding the family's living situation, and an apparent undervaluation of the infant plaintiffs' claims for loss of care, guidance, and companionship.

The court also noted the absence of recommended neuropsychological and in-home assessment reports.

Consequently, the court was unable to approve the settlement and ordered counsel to appear in court for further directions.

Gayle Whalen appealed a decision of the Consent and Capacity Board, which found her incapable of consenting to treatment with anti-psychotic medications and mood stabilizers.

The appeal focused on the Board's finding that Whalen lacked the ability to appreciate the reasonably foreseeable consequences of her treatment decisions, as per section 4(1) of the Health Care Consent Act, 1996.

The Superior Court of Justice upheld the Board's decision, finding that the Board applied the correct legal test and that its conclusion was reasonable, given the evidence of Whalen's persistent denial of her mental disorder and need for treatment.

The appeal was dismissed without costs.

The Bank of Nova Scotia Trust Company, as Estate Trustee During Litigation (ETDL) of the Estate of Mary Kathleen Kuklis, applied for directions regarding the sale of real property, disposition of personal property, and production of documents from Martin Kuklis, a former attorney for property.

Following a settlement of the application, the issue of costs remained.

The court found Martin Kuklis's conduct, including his failure to pass accounts and self-interested opposition, warranted an award of substantial indemnity costs against him personally, payable first from his share of the Estate.

Karla Anne Shawn Kuklis, Shawna Ellis, and Wesley Kuklis were not held personally responsible for costs, and their request for costs was dismissed.

The ETDL was awarded full indemnity costs, with the difference between full and substantial indemnity paid from the Estate.

The defendant, Alain Lemay, brought a motion seeking to purge a contempt finding made against him by the Small Claims Court and arguing that garnishment proceedings precluded the plaintiff, Sebastien Garnier, from conducting an examination of debtor (EOD).

Garnier brought a cross-motion seeking to proceed with an EOD and for further contempt findings.

The Superior Court of Justice confirmed the Small Claims Court Deputy Judge's jurisdiction to make contempt findings and ruled that garnishment does not prevent a judgment creditor from pursuing an EOD.

Lemay's motion was dismissed, and Garnier was permitted to proceed with EODs.

Other contempt matters and a claim for compensation were adjourned for future determination, and terms were set for Lemay to advance or abandon his Divisional Court appeal motion.

This endorsement addresses outstanding issues in an estate application, including relief sought by a respondent regarding garnishment, the applicant's request for additional costs, the requirement for a proper accounting of the estate and a trust fund, and the removal and appointment of estate trustees.

The court clarifies the need for Rule 74 accountings and affidavit evidence for a proposed successor trustee, and outlines future hearing dates for unresolved matters.