Thomas A. Heeney

The appellant appealed a trial judgment determining his net entitlement to insurance proceeds following a house fire.

The trial judge had allowed the insurer to set off an overpayment for the house's replacement cost against the appellant's damages for contents, despite the insurer failing to plead set-off as an affirmative defence.

The Divisional Court held that the trial judge erred in law by allowing the unpleaded set-off, as it caused trial unfairness and prejudiced the appellant's litigation and settlement strategy.

The appeal was allowed in part to set aside the set-off, but dismissed regarding the trial judge's factual findings on artwork valuation and additional living expenses.

The appellant appealed a summary judgment order for a debt owed to the respondent bank, arguing he received the motion materials only 14 days before the hearing, leaving insufficient time to prepare or retain counsel.

The appellant failed to perfect the appeal or attend the hearing.

The Divisional Court found no evidence that the appellant had requested an adjournment or attempted to retain counsel, and held that 14 days was not an unreasonable timeframe to prepare.

The appeal was dismissed with costs.

The appellant condominium corporation appealed a costs award made by the Condominium Authority Tribunal.

The Tribunal had dismissed the respondent's claim but awarded $200 in costs against the successful appellant because the claim was novel and the respondent was not unreasonable in pursuing it.

The Divisional Court allowed the appeal, holding that while novelty and reasonableness might justify not awarding costs against an unsuccessful party, they do not justify awarding costs against a successful party absent bad faith or misconduct.

The costs order was set aside.

The accused faced trial on four counts of sexual assault arising from allegations by a former intimate partner, together with evidence of numerous other alleged non-specific assaults during child access exchanges.

The case turned entirely on credibility and reliability, with no corroborative evidence.

Applying the W.D. framework, the court found the complainant was generally a good witness but identified contradictions, concerns about evolving detail, and potential motives to fabricate that weakened confidence in her account.

The accused gave credible denials that were not undermined by the alleged inconsistencies identified by the Crown.

The court was left with a reasonable doubt and entered acquittals on all counts.

The defendants brought motions to strike the plaintiff's Fresh As Amended Statement of Claim and dismiss the action.

The plaintiff, a therapeutic counsellor, had previously sued the defendants in Small Claims Court and initiated various complaints regarding a fee-splitting and supervision arrangement.

The court found that the current action was an attempt to relitigate claims that had already been dismissed or settled, constituting an abuse of process.

Furthermore, the claims were statute-barred as they were discovered more than two years before the action was commenced.

The court dismissed all claims except for a defamation claim against one defendant, which was struck for lack of particularity but with leave to amend.

The Crown applied for the forfeiture of two vehicles owned by the accused following his convictions for drug trafficking offences.

The court granted the forfeiture of a 2005 Chevrolet Malibu under s. 16(1) of the CDSA, finding on a balance of probabilities that it was used as a venue for a drug transaction and to store drugs.

However, the court dismissed the application regarding a 2017 GMC Sierra pickup truck.

Because the truck was not related to the offences for which the accused was convicted, s. 16(2) required the Crown to prove beyond a reasonable doubt that it was offence-related property.

The circumstantial evidence of short meetings with known drug users fell short of this standard.

The defendants brought a motion to compel the plaintiff to attend two Independent Medical Examinations (IMEs) with a neuropsychologist and an orthopaedic surgeon, arguing that the plaintiff's alleged injuries (physical and brain injury) required assessment by distinct specialists.

The plaintiff opposed, citing timeliness and the sufficiency of a single IME, and sought conditions on the examinations, including pre-approval of questionnaires and a prohibition on ghostwriting.

The court granted leave for the motion, finding a substantial change in circumstances and that it was in the interests of justice.

The court ordered the plaintiff to attend both IMEs, with the neuropsychological assessment contingent on the plaintiff first obtaining her own report.

The court rejected the plaintiff's demands regarding questionnaires and ghostwriting, affirming the statutory obligation to answer relevant questions and the expert's right to choose their method.

However, the court denied the defendants' request for reimbursement of a cancellation fee for a missed IME, as no prior court order or written consent for that specific examination existed.

The applicant mother brought a motion for non-party disclosure of her adult son's school records from the school board, to support her claim in a Motion to Change that he had withdrawn from parental control.

The respondent father consented, but the school board opposed, citing statutory privilege under s. 266 of the Education Act.

The court held that while report cards and attendance records are privileged as they relate to the improvement of instruction, the student's enrollment form is not covered by the privilege.

The court ordered the school board to produce the enrollment form but dismissed the motion for disclosure of other student records.

Following the dismissal of the applicant's proceeding, the successful respondents sought costs.

The court found the application to be scandalous, frivolous, and vexatious, noting the applicant, a self-represented lawyer, engaged in egregious misconduct including racist and personal attacks against the respondents and their counsel.

The court awarded substantial indemnity costs to the Law Society of Ontario in the amount of $33,000 and to the individual respondent in the amount of $12,742.86, emphasizing the need to sanction the applicant's abuse of the justice system.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff contractor's action for unpaid 'extras' on a construction project.

The court found that the plaintiff's claims were statute-barred under the Limitations Act, 2002, as the limitation period for unpaid construction invoices begins to run after a reasonable time for delivery and payment has passed, which in this case was more than two years before the action was commenced.

Furthermore, the court held that the plaintiff had no contractual right to demand final payment because it failed to provide a required statutory declaration confirming that all sub-trades had been paid.

The motion for summary judgment was granted and the action was dismissed.

The applicant lawyer commenced an application seeking to halt a Law Society of Ontario investigation into complaints regarding his social media posts, and claiming damages against the LSO and the individual complainants.

The respondents moved to strike the application.

The court dismissed the application on the basis that it was improperly commenced by Notice of Application rather than a Statement of Claim.

In the alternative, the court held it would have struck the applicant's pleadings in their entirety without leave to amend under Rule 25.11, finding them to be scandalous, frivolous, vexatious, and an abuse of process.

The plaintiff brought a motion under Rule 25.11 to strike portions of the defendant's Statement of Defence and Counterclaim, arguing they pleaded facts protected by settlement privilege.

The defendant brought a cross-motion to amend the pleading.

The court granted leave for the interlocutory motion under the Construction Act.

The court declined to make a pre-emptive ruling on the admissibility of the communications at the pleadings stage, noting the factual dispute over whether they were 'without prejudice' settlement discussions or efforts to mitigate ongoing contractual issues.

The court struck the impugned paragraph but allowed the defendant's proposed amendment, which focused on the plaintiff's knowledge rather than the settlement proposal itself.

The moving party, a self-represented lawyer, brought a motion under section 21(5) of the Courts of Justice Act to set aside an order of a single judge of the Divisional Court that denied extensions of time to appeal various orders arising from a mortgage enforcement proceeding.

At the hearing, the moving party raised preliminary issues including a venue transfer, constitutional claims, and a request for the panel to recuse itself.

The Divisional Court dismissed the preliminary requests, denied an adjournment, and dismissed the motion on the merits, finding no error in the single judge's decision and no basis to grant leave to appeal the costs order.

The appellant father appealed a trial decision regarding retroactive child support and costs.

The trial judge had awarded retroactive support from the date the Motion to Change was filed, using a straight set-off calculation for one child each.

The Divisional Court upheld the start date but found a legal error in the calculation for the period of shared custody, correcting it to use the table amounts for two children.

The appeal was allowed in part to increase the retroactive support award, but dismissed regarding the costs award and the refusal to award support prior to the motion date.

The appellant landlord appealed a Landlord and Tenant Board order requiring her to pay the respondent tenant $1,130.00.

The appellant argued the Board breached procedural fairness by proceeding with the hearing in her absence after she sent a letter advising of a doctor's appointment.

The Divisional Court dismissed the appeal, finding the appellant failed to follow the Board's procedures for requesting an adjournment and the Board properly exercised its discretion to proceed under the Statutory Powers and Procedures Act.

The moving party brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $3,050.08.

The moving parties sought leave to appeal from the decisions of Corthorn J. and Shelston J. The Divisional Court dismissed the motion for leave to appeal in writing and awarded costs of $7,500 to the responding party.

The moving parties brought a motion for leave to appeal from the order of Pollak J., which dismissed an earlier order of Master Jolley.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the amount of $37,773.07.

This case involved a motion and cross-motion for interim custody of a child.

The applicant father sought sole or shared custody, while the respondent mother sought sole custody with supervised access for the father.

The court considered the father's extensive criminal record, history of drug involvement, and relapse, as well as his derogatory comments about the mother to the child.

Given the child had been in the mother's primary care for approximately five years, the court found it in the child's best interests to maintain the status quo.

The mother was awarded interim primary parenting time and sole decision-making responsibility.

The father was granted supervised parenting time on alternate weekends at his parents' residence, with his parents acting as supervisors to ensure the child's safety and prevent emotional harm.

Child support was also ordered based on the father's imputed income.

The respondent brought a motion to vary an interim access order, seeking reduced and supervised access for the applicant, citing an alleged sexual assault of a child by a neighbour and criminal charges laid against the applicant.

The applicant opposed the reduction and supervision, agreeing only to access at his mother's residence.

The court dismissed the respondent's motion, finding no basis to change the original order, and expressed skepticism regarding the respondent's allegations and the timing of the criminal charges.

The court found the applicant's report to CAS appropriate and maintained the original access schedule with minor modifications regarding exchange locations.