Sylvia Corthorn

The respondent, Anita Larwill, an Estate Trustee, brought a motion seeking an order to sell a residential property of the Estate due to the non-cooperation of another beneficiary.

The court determined that the requested relief could not be granted on this motion, as a previous order required an application for partition and sale as the proper procedural step.

However, the court granted Anita extensions of time to bring the required application for partition and sale and to distribute the remaining bequests and residue of the Estate.

The court noted the non-cooperation of one beneficiary and the potential for further adverse costs awards.

Premier Drycleaners sought summary judgment against Burnford Realty Limited for alleged breach of a commercial lease and an order compelling assignment of a new lease.

Premier argued for rectification of the 2008 lease to include a five-year extension option from a 2007 document, and claimed damages for lost profits.

The court dismissed the motion for summary judgment in its entirety, finding genuine issues requiring a mini-trial regarding the terms of the 2008 lease and the alleged breach.

The court also dismissed the request to compel assignment of the 2013 lease, ruling that the landlord's refusal to consent was reasonable given concerns about the tenant's viability and the damaged landlord-tenant relationship due to ongoing litigation.

The defendant brought a threshold motion under section 267.5 of the Insurance Act, seeking a declaration that the plaintiff had not suffered a permanent and serious impairment of an important physical, mental, or psychological function as a result of a motor vehicle collision.

The plaintiff opposed the motion, arguing that her injuries, including PTSD and major depression, met the threshold criteria.

The court dismissed the defendant's motion, finding that the plaintiff had, on a balance of probabilities, suffered a permanent, serious impairment of an important physical, mental, or psychological function caused by the collision.

The court also made findings on the credibility and reliability of the defence medical expert.

The plaintiff in a motor vehicle collision action brought a motion to include the names of the parties' respective motor vehicle insurers (Belair Direct and Aviva) in the jury pre-screening process.

The plaintiff argued that public awareness of mandatory insurance mitigated prejudice and that broader "connections" beyond employment should be screened.

The defendant opposed, citing potential prejudice and increased complexity.

The court dismissed the motion, affirming that civil jury selection in Ontario does not permit challenges for cause based on unspecified partiality and that the presumption of juror impartiality is strong.

The court held that identifying insurers at the outset could mischaracterize the dispute as one between insurers rather than individuals and potentially mislead the jury regarding a defendant's personal exposure.

The plaintiff brought a motion to strike the defendant's jury notice and proceed before a judge alone, arguing that a 19.5-day delay between the conclusion of evidence and closing arguments would prejudice the jury's ability to recall and understand complex medical evidence regarding post-traumatic stress disorder.

The court dismissed the motion, finding that the evidence was not overly complex, the actual delay was shorter than claimed, and the jury was capable of comprehending and weighing the evidence.

The court concluded that justice would be better served by retaining the jury.

This endorsement addresses costs following the applicant's success in responding to the respondent's motion for interim spousal and child support.

The applicant sought costs on a substantial indemnity basis, citing the respondent's unreasonable behaviour, including requiring a procedural motion for an adjournment and rejecting more favourable settlement terms.

The respondent did not provide costs submissions.

The court found the applicant was entitled to costs on a substantial indemnity basis, applying Rule 24 of the Family Law Rules.

The court fixed costs at $3,880, payable from the respondent's share of the matrimonial home proceeds, adjusting the applicant's requested amount based on a calculation of substantial indemnity from full indemnity figures and considering the parties' limited means.

This trial management conference addressed the need for financial evidence and share valuation for ongoing trials involving multiple parties and actions.

Due to the complexity of re-creating financial records and appraising real property, the parties consented to an order for the joint retention of a bookkeeper and an appraiser.

The trials scheduled for May 15, 2017, were adjourned, and further trial management conferences were scheduled to monitor progress.

Costs for the bookkeeper and appraiser services are to be paid from trust monies.

The plaintiff sought a specific instruction to the jury regarding the defendant's in-court admissions concerning fault for a collision.

During cross-examination, the defendant stated she did not believe the plaintiff was responsible and that her decision to enter a lane ultimately caused the accident.

The court had previously given a general instruction that the jury are the triers of fact and the defendant's views on fault are merely her views.

The plaintiff argued these were in-court admissions warranting a specific instruction that the jury should rely on them unless contradicted.

The court ruled that the defendant's answers were her views, not admissions of fact based on all relevant evidence, and therefore did not warrant specific mention in the jury charge.

The defendant in a personal injury action sought to rely on approximately 20 posts from the plaintiff’s Facebook page for cross-examination, which had been retrieved through an agreement but not formally disclosed.

The plaintiff objected, citing prejudice due to the late disclosure of a significant volume of materials, which prevented proper trial preparation, expert review, and settlement negotiations.

The court dismissed the defendant's request, emphasizing the importance of full and rigorous compliance with disclosure obligations under the Rules of Civil Procedure and the agreement between counsel.

The defendant sought to admit surveillance video of the plaintiff as substantive evidence in a personal injury action.

The court applied a three-part test for admissibility (accuracy, fairness/absence of intention to mislead, and verification on oath) and found that the surveillance evidence did not meet these criteria due to issues with inconsistent time-stamping, selective editing, subjective descriptions by the investigator, and significant gaps in footage.

The court also determined that the evidence had minimal probative value and that its potential prejudice to the plaintiff, particularly given the claim of post-traumatic stress disorder and the lack of expert review of the surveillance, outweighed any probative value.

Additionally, the defendant's late disclosure of 2016 surveillance evidence, two weeks before trial, was deemed non-compliant with disclosure obligations, and leave to rely on it was denied.

The motion to admit the surveillance evidence was dismissed in its entirety.

The applicant, who was self-represented, brought an application under section 520 of the Criminal Code to vary his bail conditions.

He sought to vary conditions relating to a no-contact order, an internet ban, and a prohibition on contacting the police.

The court found a material change in circumstances regarding the no-contact order because charges relating to one complainant had been quashed, and the Crown consented to removing the names of other potential witnesses.

The court also varied the internet ban to allow the applicant to communicate with individuals assisting in his defence.

The request to vary the prohibition on contacting the police was dismissed as no new evidence was provided.

The respondent sought costs on a full recovery basis following a motion to enforce a prior order.

The court found the respondent to be the "more successful party" but not "almost entirely successful" and that settlement offers did not trigger full recovery.

The court also noted the respondent's "dogmatic" approach to medical/dental expenses disproportionately increased hearing time.

The applicant's conduct regarding post-secondary education obligations was deemed "obfuscation and deliberate." Costs were awarded to the respondent on a substantial indemnity basis, but reduced due to excessive fees and unreasonable disbursements (investigator).

The defendant was successful on a summary judgment motion dismissing the plaintiff's construction lien claim on the basis of diplomatic immunity.

The defendant sought partial indemnity costs, while the plaintiff sought substantial indemnity costs based on a pre-hearing offer to settle.

The court found the plaintiff's offer was conditional and the motion's outcome was less favourable to the plaintiff than the offer's terms.

The court awarded the defendant partial indemnity costs fixed at $16,885.00, noting the complexity and novelty of the international law issues involved.

The plaintiff bank brought a motion for summary judgment against a corporate guarantor following the default of a corporate borrower.

The borrower's franchise agreement was terminated, constituting a breach of the lending agreement.

The guarantor argued the bank made representations not to call on the guarantee, but failed to respond to the motion or provide evidence.

The court found no genuine issue requiring a trial and granted summary judgment for the principal, interest, bank fees, and full indemnity costs.

The defendant was successful on its appeal from a Master's decision regarding the plaintiff's motion for leave to amend her pleading and for documentary discovery.

The defendant sought costs of $25,000 on a partial indemnity basis, payable forthwith.

The court fixed the defendant's costs for both the motion and the appeal at $20,000 on a partial indemnity basis.

Balancing the importance of the appeal's success with the plaintiff's litigation strategy, the court deviated from the general rule that costs are payable within 30 days, ordering instead that the costs be paid within 60 days of the decision at trial.

During the second week of a medical malpractice trial, the defendant physician sought leave to bring a motion for summary judgment to dismiss the claim against him.

The court dismissed the motion for leave, finding that the defendant failed to provide a satisfactory explanation for the delay, the motion would unduly delay the ongoing trial, and there was insufficient evidence that a summary judgment motion would be a proportionate or cost-effective alternative to continuing the trial.

The plaintiff in a medical malpractice action brought a motion at trial to prohibit the defendant physicians from advancing theories of failure to mitigate and break in the chain of causation, arguing lack of prior notice.

The plaintiff contended that the defendants failed to update an undertaking given at discovery regarding mitigation.

The court dismissed the motion, finding that the plaintiff had adequate notice of the defence theories through the statement of defence, an expert report, and the defendants' pre-trial conference memorandum.

The court held that it would be fundamentally unfair to preclude the defendants from relying on these theories and that the trial remained fair to the plaintiff.

During a medical malpractice trial, the plaintiff objected to the defendants' opening statement, arguing lack of notice regarding certain defences.

The defendants brought a cross-motion seeking leave to file an excerpt from their pre-trial conference memorandum to prove notice was given.

The court considered the prohibition on communicating pre-trial conference statements under Rule 50.09 of the Rules of Civil Procedure.

Applying Rule 2.03, the court found it was in the interests of justice to dispense with the prohibition and permit the defendants to file the excerpt solely to address the issue of notice.

This endorsement clarifies the appropriate payee for structured and non-structured settlement payments for a person under a disability.

The court initially raised concerns about direct payment to the incapable person, preferring payment to the incapable person rather than the guardian.

However, based on expert advice from McKellar Structured Settlements Inc., it was determined that the annuity insurer would not be discharged if payments were made directly to an incapable person.

Consequently, the court revised the judgment to direct payments to the guardian of property for the benefit of the incapable person, ensuring tax compliance and proper discharge for the insurer, while affirming the guardian's commitment to the incapable person's best interests.

The defendant moved for summary judgment based on a limitation period defense.

The plaintiff sought leave to amend the pleading to add a corporate entity as a plaintiff, include unjust enrichment claims, and assert an assignment of rights.

The court found an implied contract between the corporate entity and the defendant, precluding an unjust enrichment claim.

The alleged assignment of rights from the corporate entity to the plaintiff was not effectual in law due to lack of written notice to the debtor.

Consequently, the plaintiff's claim, restricted to breach of contract, was statute-barred by the two-year limitation period.

The defendant's motion for summary judgment was granted, and the plaintiff's cross-motion for leave to amend was largely dismissed.