Thomas A. Heeney

The defendant brought a motion to compel the plaintiff to attend a defence neuropsychological assessment and to extend the time for service of the resulting expert report.

The motion was brought after the deadline for serving expert reports under the agreed timetable and the Rules of Civil Procedure had passed.

Applying the amended Rule 53.08(1), the court found that the defendant failed to provide a reasonable explanation for the delay in scheduling the examination.

The motion was dismissed, emphasizing the strict enforcement of expert report deadlines to prevent trial delays.

The applicant sought judicial review of a reconsideration decision by the respondent police service, which refused to remove non-conviction information from his Vulnerable Sector Check.

The information related to withdrawn and stayed charges involving allegations of criminal harassment, sexual assault, and sexual interference where the alleged victims included children.

The Divisional Court dismissed the application, finding that the police service's interpretation of 'alleged victim' and 'pattern of predation' under the Police Records Checks Reform Act was reasonable and consistent with the legislation's purpose of protecting children and vulnerable persons.

The appellant appealed an order directing the sale of a vacant property solely owned by the respondent, where the parties had previously cohabited.

The appellant argued the sale should be delayed until the validity of their cohabitation agreement, which contained a purchase option, was determined at trial.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the respondent should not be forced to pay significant monthly maintenance for an unused property, especially since the sale proceeds would be held in trust pending final resolution.

The Superior Court of Justice heard motions and cross-motions arising from four identical actions.

The primary motion was brought by the plaintiffs' lawyers (the "Lawyers") to strike counterclaims asserted against them by the defendants by counterclaim (the "Lenders").

The Lenders' counterclaims alleged conspiracy, intentional interference with economic relations, and champerty and maintenance, and they sought to add a new claim for breach of privacy/misappropriation of confidential information.

The court dismissed the Lenders' motion for leave to tender evidence and granted the Lawyers' motion, striking the counterclaims in their entirety without leave to amend, finding that the claims against the Lawyers were untenable at law and contrary to public policy.

The applicant sought judicial review of a school board's decision denying her request to make an oral presentation at a board meeting regarding the flying of the pride flag and transgender issues.

The Divisional Court dismissed the application primarily due to an egregious and unexplained 21-month delay in perfecting the application.

In the alternative, the court found the board's decision was reasonable, as the proposed presentation contradicted the board's statutory duties to promote an inclusive school climate, and the board minimally impaired the applicant's freedom of expression by offering to distribute her presentation in written form.

The applicant sought to vary a child support order retroactively to 2017, alleging the respondent had undeclared income and had ceased payments.

The court found a material change in circumstances due to the respondent's increased income but rejected the imputation of "under the table" income due to lack of objective evidence.

Applying the D.B.S. factors, the court ordered the child support order varied retroactively to February 1, 2018, when the respondent stopped making payments, rather than the applicant's requested 2017, based on the lack of reasonable excuse for delay and the child's needs being met.

Arrears were calculated and a payment plan was set.

The applicant sought judicial review of a decision by the Agriculture, Food and Rural Affairs Tribunal, which summarily dismissed its appeal from a decision of the Egg Farmers of Ontario (EFO).

The Tribunal had found it lacked jurisdiction to order the EFO to implement a direct marketing system without a prior investigation or decision by the EFO, and alternatively dismissed the appeal as vexatious and in bad faith.

The Divisional Court applied the reasonableness standard of review and upheld the Tribunal's decision, finding that the Tribunal cannot direct the EFO to exercise discretionary powers without a substantive basis.

The application for judicial review was dismissed with costs awarded to the respondent.

The tenant appealed a decision of the Landlord and Tenant Board dismissing her motion to void an eviction order under s. 74(11) of the Residential Tenancies Act.

The tenant argued that because she was on a month-to-month tenancy, s. 74(12), which limits a tenant to one such motion 'during the period of the tenant's tenancy agreement', reset every month.

The Divisional Court dismissed the appeal, holding that the tenant's interpretation would lead to an absurd result and render the statutory limitation meaningless, as a month-to-month tenancy is a continuation of the same tenancy agreement.

The appellant appealed a summary judgment order requiring him to pay a debt to the respondent bank, arguing he received the motion materials too late to prepare a defence.

The appellant failed to perfect the appeal and did not attend the hearing.

The Divisional Court found no basis to set aside the order, noting the appellant had admitted to owing the money before the motion judge and that inability to pay is not a defence.

The appeal was dismissed with costs.

This endorsement resolves two costs issues.

First, the plaintiffs' successful motion to amend their claim to $200,000, bringing it within the simplified procedure due to the death of a plaintiff.

The court awarded the plaintiffs $5,000 in partial indemnity costs for this motion, finding it was not an "indulgence" and that the defendants' opposition was unsuccessful.

Second, the defendants' claim for costs under Rule 76.13, which applies when a claim is amended to simplified procedure.

The court found the plaintiffs' delay in bringing the amendment relevant to these costs.

While acknowledging some costs were unnecessarily incurred by the defendants in preparing for an ordinary trial, the court significantly reduced the defendants' claimed amount for witness preparation, deeming it excessive and disproportionate.

Ultimately, the court awarded the defendants $8,000 under Rule 76.13, resulting in a net award of $3,000 to the defendants, payable within 90 days.

The defendant brought a motion to add a proposed defendant-by-counterclaim and to amend its Statement of Defence and Counterclaim.

The responding party opposed the motion, arguing that the claim was statute-barred and that the matter was res judicata due to a previous summary judgment motion.

The court found that discoverability remained a live issue for the limitation period and that the previous judge had not made a final decision on the request to add a party.

Applying the mandatory language of Rule 26.01 and the principles of Rule 5.03, the court granted the motion to amend the pleadings and add the party, finding no non-compensable prejudice.

Following a complex family law trial where the respondent was largely successful, the court determined the issue of costs.

The applicant failed to file costs submissions.

The court reviewed the parties' offers to settle, finding the respondent beat his offer on the equalization issue but not on all issues.

The court noted the applicant's unreasonable and obstructive behaviour throughout the litigation, which caused significant delay and wasted resources.

The court awarded the respondent costs fixed at $125,000 on a partial recovery basis, to be credited against the equalization payment owed to the applicant.

The plaintiffs brought a motion to amend their Statement of Claim to reduce the damages claimed from $950,000 to $200,000 and to continue the action under the simplified procedure, following the death of the primary plaintiff which eliminated the claim for future care costs.

Because the trial record had already been filed, leave was required under Rule 48.04(1).

The court granted leave, finding the plaintiff's death constituted a substantial and unexpected change of circumstances.

The court also granted the amendment under Rule 26.01, finding it was in the interests of justice to proceed with a 5-day simplified trial and that the defendants would suffer no prejudice that could not be compensated by costs or an adjournment.

The respondent moved for partition and sale of the jointly owned matrimonial home under the Partition Act after a lengthy separation.

The applicant opposed the motion on the basis of unresolved equalization, retroactive child support, retroactive spousal support, and the continued residence of adult children and an elderly parent in the home.

Applying the governing family law principles for interim sale motions, the court held that the moving party had a prima facie right to sale and that any legitimate prejudice to the opposing party's unresolved claims could be protected by withholding part of the moving party's equity in trust.

The court ordered the home listed for sale after 30 days, with $75,000 withheld from the moving party's half share pending final resolution.

The plaintiff tripped and fell on a 50 mm milled asphalt edge while crossing a road under construction at night, sustaining a broken arm.

She sued the municipality under the Municipal Act and the paving contractor under the Occupiers' Liability Act.

The court found that the defendants breached their respective duties by failing to install a temporary ramp at the pedestrian crossing, which constituted an unreasonable hazard.

However, the plaintiff was found 35% contributorily negligent for failing to keep a proper lookout in a known construction zone.

The defendants were held jointly and severally liable for 65% of the agreed damages.

The parties separated after a 6.5-year marriage.

The court resolved corollary issues including equalization, child support, spousal support, and property damage.

The court found the applicant to be a highly uncredible witness.

The applicant's claims for child support and ongoing spousal support were dismissed, with the court finding the respondent did not stand in the place of a parent to her son, and that her entitlement to spousal support had expired.

The court awarded the respondent $120,000 in damages in tort, finding the applicant intentionally turned off the furnaces in the matrimonial home, causing the pipes to freeze and burst.

An equalization payment of $1,544,025 was ordered payable to the applicant, subject to significant credits in favour of the respondent.

The parties separated in 2016 and had two children.

In 2019, one of the children tragically died after being accidentally run over by the respondent's truck.

The respondent brought a motion to change the existing parenting order, seeking week-about parenting time for the surviving child.

The court dismissed the motion, finding that the respondent failed to prove a material change in circumstances that would justify altering the status quo.

The court further held that, even if the threshold was met, a week-about schedule was not in the child's best interests due to the child's need for stability, the respondent's lack of respect for the applicant's role as custodial parent, and the respondent's failure to pay child support.

The applicant was granted sole decision-making responsibility and primary residence, with the respondent having alternate weekend parenting time and one mid-week visit.

The respondent was also ordered to pay child support and arrears.

The accused, Jeremiah Andre Reed, was charged with attempted murder (stabbing Grant Douglas) and breach of a probation order (possessing a weapon).

The Crown's case relied primarily on the complainant's testimony, which the court found credible and reliable despite minor inconsistencies and a criminal record, due to strong corroborating evidence and the complainant's direct involvement in the events.

The court found the identification of the accused to be highly reliable given the complainant's prior acquaintance with him and the circumstances of the attack and subsequent pursuit.

Direct evidence of the accused's intent to kill was found in his own words.

The accused was found guilty on both counts.

The plaintiffs sought summary judgment for an injunction to prevent the defendants from obstructing their access to Lake Erie, asserting rights under the Canadian Navigable Waters Act (CNWA) and common law riparian rights.

They also claimed damages for trespass.

The court dismissed the plaintiffs' claims for injunctive relief, finding they lacked standing to enforce the CNWA and that their property did not directly abut Lake Erie in its natural low-water state.

However, the court granted summary judgment for the plaintiffs on the trespass claim, awarding $5,000 in damages for the unauthorized clearing of trees and vegetation on their land by the defendants.

The defendants' counterclaim for trespass was not adjudicated due to procedural issues.

The appellant appealed the dismissal of his application seeking a declaration that he was a director of a not-for-profit corporation and that a respondent director was in a conflict of interest for purchasing adjacent property.

The Divisional Court dismissed the appeal, finding the appellant was not a director under the Letters Patent and lacked standing to bring a derivative action without leave.

The court also upheld the finding that the respondent director was not in a conflict of interest, as the purchase was transparent and approved by the corporation.