Thomas A. Heeney

The plaintiff brought a summary judgment motion arising from an unpaid construction subcontract for fire suppression work, seeking principal, contractual interest, collection costs, and personal liability against corporate officers for breach of trust.

The court held the corporate defendant was bound by the written commercial contract, including a 2% per month compounded interest clause and recovery of collection costs, and distinguished the authorities concerning unsigned or hurried standard-form agreements.

Applying the statutory trust provisions of the Construction Lien Act, the court found the contractor had received full payment on the project, failed to account for trust funds, and breached the trust owed to the subcontractor.

The officers knew or ought reasonably to have known of the breach and were held jointly and severally liable.

Additional post-February 5, 2015 costs of $10,000 were fixed in the plaintiff's favour.

On competing motions to vary an indefinite spousal support order, the court held the payor failed to establish a material change in circumstances warranting termination, where the recipient's disabling health conditions existed at the time of the original order and continued to preclude meaningful employment.

The court rejected the submission that the recipient had a duty to become self-sufficient and found the original order did not impose such an expectation.

The recipient, however, established a material change based on the termination of child support, inflation, and the payor's substantial income increase from approximately $79,000 to over $136,000.

Applying the Divorce Act variation framework and consulting the Spousal Support Advisory Guidelines, the court increased support by $600 per month to $2,100, retroactive to September 1, 2013.

The moving party, the successful bidder on a police towing services Request for Proposal, brought a motion to be added as a party to an application for judicial review challenging the RFP.

The applicants conceded the moving party should participate but argued it should bear its own costs.

The court found the moving party was an essential party with a direct economic interest and relevant evidence to offer regarding allegations of collusion.

The motion was granted, and the moving party was added as a party respondent with full exposure and entitlement to costs.

In an urgent family motion, the applicant sought an interim order requiring the respondent to return the child from Alberta to Ontario, while the respondent sought interim permission to relocate the child pending final determination.

Applying the governing mobility principles and the interim relocation factors, the court held that the pre-move status quo, the child’s extensive extended family in Ontario, the importance of maximizing contact with both parents, and the respondent’s breach of the parties’ written non-removal agreement favoured return.

The court found there was a genuine issue for trial and no strong probability that the respondent’s relocation position would succeed.

The respondent’s motion was dismissed, the applicant’s motion was allowed, and interim access and child support orders were made.

In a family trial following divorce, the court determined whether the respondent stood in the place of a parent to the applicant's two children from a prior marriage, whether income should be imputed after the respondent quit work and relocated to Poland, and the corollary support and property consequences.

Applying the governing in loco parentis framework, the court found the respondent had formed a new family, sponsored the children as step-sons, and assumed parental obligations.

The court further found the respondent was intentionally unemployed and imputed annual income of $50,000.

Child support of $29,720, an equalization payment of $25,009, and lump sum spousal support of $5,000 were ordered to be paid from trust funds held from the sale of the matrimonial home.

Following a written motion by several defendants to transfer the proceeding to another county, which was granted, the court determined the appropriate quantum of costs.

The moving parties sought $3,000 in costs and argued the motion was unnecessary because the action had been commenced in the wrong venue.

The court held that commencing the action in the original venue was permissible under Rule 13.1.01(2) of the Rules of Civil Procedure and rejected the suggestion that the motion should necessarily have been consented to.

The court found the time claimed for the motion disproportionate and reduced certain disbursements.

Costs were assessed at $1,500 all inclusive payable by the plaintiff.

During an appeal from a child protection judgment, the father brought a motion alleging the child protection agency and the mother breached a court order by failing to facilitate access with the child, and sought a defined weekly access order pending the appeal.

The court found no breach of any order, as the earlier endorsement only required the agency to investigate and arrange a possible meeting rather than mandate access.

The motion judge reviewed the extensive factual findings of the trial judge, including that the child had experienced emotional harm and expressed genuine fear of the father, and that forced access could cause further harm.

Applying s. 69(4) of the Child and Family Services Act, the court held that ordering access contrary to the child’s wishes would not be in the child’s best interests.

The request for access and the request for appointment of a case management judge were dismissed.

The moving defendant sought a declaration that a subcontractor’s construction lien was invalid for failure to preserve the lien in accordance with s. 34(2) of the Construction Lien Act after the claim for lien was delivered to a municipality’s deputy clerk rather than directly to the clerk.

The court held that the lien was properly preserved because the deputy clerk received the document within the statutory period and delivered it to the municipal clerk the same day.

The court further found that s. 228(2) of the Municipal Act, 2001 grants deputy clerks the powers and duties of the clerk, including receipt of lien claims.

A literal interpretation requiring service only on the clerk would create an impractical and absurd result where service would be impossible if the clerk were unavailable.

The motion seeking to invalidate the lien and return the security bond was dismissed.

The accused brought an application to stay drug trafficking charges under s. 24(1) of the Charter, alleging a violation of his right to be tried within a reasonable time under s. 11(b).

The total delay from arrest to the anticipated end of the trial was approximately 30 months.

The court found that the delay was largely attributable to the inherent time requirements of a complex case involving multiple accused, extensive disclosure, and numerous officers.

The institutional delay fell within acceptable guidelines, and the accused suffered minimal prejudice.

The application was dismissed.

The plaintiffs sought leave to amend their Fresh As Amended Statement of Claim to add a claim in nuisance against a defendant related to environmental contamination of a former foundry property, and to increase damages claimed.

They also sought leave to file late expert appraisal reports relating to alleged “stigma damages.” The court held that the proposed nuisance claim was not legally tenable because the alleged contamination originated on the plaintiffs’ own property and was caused by prior operators, not the defendant’s conduct.

The court further found that permitting the late expert reports would cause undue delay and prejudice, as the reports were served more than two years after the pre-trial conference and shortly before a lengthy scheduled trial.

Leave to amend the pleadings to add the nuisance claim and to file the expert reports was denied, although minor amendments to increase the damages amounts were granted on consent.

The plaintiff sued the defendant for injuries sustained while bicycling on a recreational trail.

The defendant moved for summary judgment under s. 4 of the Occupiers' Liability Act, which limits liability to reckless disregard for recreational trails.

The motion judge dismissed the motion, finding s. 4 did not apply or created a rebuttable presumption requiring a trial.

On appeal, the Divisional Court allowed the appeal, holding the motion judge erred in law.

Applying the Hryniak standard, the court found no genuine issue for trial as there was no evidence the defendant acted with reckless disregard.

The appellant tavern appealed a License Appeal Tribunal decision finding it breached several provisions of the Liquor Licence Act and its Regulations, resulting in a 10-day licence suspension.

The charges arose after a group of patrons consumed a massive amount of alcohol in a short period, leading to intoxication, a violent altercation with staff, and a subsequent investigation.

The Divisional Court applied a correctness standard of review.

The court upheld findings that the appellant sold liquor to intoxicated persons, permitted drunkenness, permitted violent conduct, and failed to facilitate an inspection.

However, the court quashed findings that the appellant permitted practices encouraging immoderate consumption, committed a second violation of permitting drunkenness, and obstructed an investigation, finding errors of law in the tribunal's reasoning on those points.

The appeal was allowed in part.

The respondent father brought a motion to vary an ex parte interim custody order that had granted custody of his two children to their maternal uncle following the mother's suicide.

The court applied the best interests of the child test under section 24 of the Children's Law Reform Act.

The court found that the children had a strong bond with their father and expressed a clear preference to live with him.

Despite the uncle providing a stable home and the father having a dated criminal record, the court concluded that reuniting the children with their natural parent was in their best interests.

The motion was granted, and interim custody was awarded to the father.

The respondents sought costs following the dismissal of the applicant's judicial review application.

The respondents sought substantial indemnity costs, arguing the litigation was duplicative, vexatious, and involved unfounded allegations of bias.

The applicant argued for modest costs to accommodate access to justice.

The Divisional Court agreed with the respondents, finding the judicial review replicated previous litigation and was entirely unfounded.

The court awarded substantial indemnity costs of $15,000 to the Swan respondents and $8,088.46 to the University of Western Ontario.

The applicant, a medical resident, sought judicial review of a decision by the university's Senate Appeals Committee that upheld her placement on academic probation due to poor performance and patient safety concerns.

The applicant argued that the committee violated procedural fairness and that its decision was unreasonable.

The Divisional Court dismissed the application, finding that the committee provided a high degree of procedural fairness, cured any minor procedural defects through a de novo hearing, and reached a reasonable decision within its academic expertise.

A long‑serving employee brought a motion for summary judgment in a wrongful dismissal action seeking 24 months’ notice or, alternatively, statutory severance under the Employment Standards Act, 2000.

The court held that the employee’s entitlement to statutory severance pay could be determined summarily because the undisputed evidence established over 40 years of continuous employment and a payroll exceeding the statutory threshold.

Partial summary judgment was therefore granted for the maximum 26 weeks’ severance pay.

However, the broader claim for wrongful dismissal damages could not be determined because there was no evidence regarding post‑termination income or mitigation.

The remainder of the claim was directed to proceed to trial.

The franchisor brought a motion for partial summary judgment seeking dismissal of the franchisees’ counterclaim for rescission under s. 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000.

The franchisees alleged the disclosure document failed to disclose several material facts, including litigation involving the franchisor, anticipated policy changes, and potential renovation costs.

The court held that three of the alleged omissions were not material facts because they arose well after the disclosure document was delivered or could not reasonably affect the franchise price.

Although the existence of contemplated litigation should have been disclosed, the deficiency was not so stark or fundamental as to amount to no disclosure at all.

Accordingly, the franchisees could not rely on the two‑year rescission remedy under s. 6(2), and the rescission counterclaim was dismissed.

The Town of Oakville sought judicial review of an Ontario Municipal Board decision that permitted a temporary change of use for two commercial properties to be farmed, providing a tax benefit.

The temporary change expired before the hearing, and the respondents did not appear.

The Divisional Court declined to hear the application, finding the matter moot and noting that deciding a case with broad policy implications without adversarial submissions would breach procedural fairness.

The appellant appealed a decision regarding child support and section 7 expenses for two disabled children.

The Divisional Court found the application judge erred in concluding the older child, who resided full-time in a care facility, had withdrawn from parental control and was not a child of the marriage.

The court also found the judge misapprehended the evidence regarding respite care subsidies for the younger child.

The matter was remitted to the application judge to recalculate the section 7 expenses and arrears.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that dismissed her discrimination complaint against her university and an arbitrator.

The applicant alleged that the arbitrator's report, which found her harassment allegations unfounded, was discriminatory and that the arbitrator lost adjudicative immunity.

The Divisional Court dismissed the application, finding it to be a duplicative and meritless attempt to relitigate previous findings, and upheld the HRTO's conclusions on reasonable prospect and adjudicative immunity.