Tracey J. Nieckarz

The plaintiffs brought a motion to amend their statement of claim to add the sole director of the defendant corporation as a party and to plead oppression under the Business Corporations Act.

The plaintiffs, who were suing for breach of an unexecuted commercial lease, argued that the director's sale of corporate properties jeopardized their ability to collect on a potential future judgment.

The court dismissed the motion, finding it plain and obvious that the plaintiffs, as contingent creditors for unliquidated damages, lacked standing as complainants.

Furthermore, the court held there was no evidence of asset stripping or bad faith to support an oppression claim or to attach personal liability to the director.

The respondent brought a motion for the immediate partition and sale of the jointly owned family home.

The applicant opposed the sale, arguing it would prejudice his claims for resulting trust and unjust enrichment, as he alleged he solely funded the purchase and construction of the home.

The court dismissed the motion, finding that a sale was not an inevitable result at trial if the applicant succeeded on his resulting trust claim.

The court also ordered the parties to exchange Affidavits Listing Documents and proceed to questioning to address missing disclosure.

The respondent mother brought a motion to strike the applicant father's pleadings in a motion to change child support due to his failure to participate and comply with disclosure orders.

The father's counsel also brought a motion to be removed from the record due to a loss of contact with their client.

The court granted counsel's motion to be removed, noting the lack of contact since July 2024.

The court also granted the mother's motion to strike the father's Response to Motion to Change, finding that his non-participation and failure to provide updated income information squandered court resources and prejudiced the mother.

The mother was granted leave to schedule an uncontested hearing.

The offender, a 43-year-old Indigenous man, was convicted of sexual interference against a 6.5-year-old child.

The offence occurred while the offender was highly intoxicated.

The court weighed the primary sentencing objectives of denunciation and deterrence for sexual offences against children against significant Gladue factors, including intergenerational trauma and severe substance abuse issues.

The court imposed a sentence of 12 months' imprisonment, which was satisfied by pre-sentence custody credit, followed by two years' probation and ancillary orders.

The accused pleaded guilty to dangerous driving causing death, breach of a release order, and breach of a probation order after crashing a vehicle while impaired by drugs and unlicensed, killing his passenger.

The accused fled the scene without calling for help.

The court weighed significant aggravating factors, including the accused's prior driving record and breaches of court orders, against mitigating factors such as his guilty plea, genuine remorse, rehabilitation efforts, and Gladue factors.

The court sentenced the accused to 7.5 years' imprisonment, less pre-sentence custody credit, and imposed a lifetime driving prohibition.

The applicants brought a motion for a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging a violation of their right to be tried within a reasonable time under s. 11(b).

The applicants were charged with serious drug trafficking and firearms offences.

The total delay from charge to the date of hearing the application was 38.5 months.

The Crown argued that certain periods constituted defence delay, which would reduce the net delay below the presumptive ceiling of 30 months established in R. v. Jordan.

The court found that the defence delay attributable to the applicants was approximately 5.7 to 5.85 months, resulting in a net delay of 32.65 to 32.8 months, which exceeded the presumptive ceiling.

The court granted the application and stayed the charges.

A daughter claimed $57,000 from her mother, alleging she had made monthly investment payments of $1,000 between April 2005 and December 2009 toward a twelve-unit rental property in exchange for a promise that the property would eventually be transferred to her and rent proceeds would be shared.

The mother denied the claim on multiple grounds: statute of limitations, insufficient proof of payments, and that the claim was premature as the property was to be transferred upon her death.

The court found the daughter had proven the $57,000 in payments on a balance of probabilities and established unjust enrichment.

The court applied an equitable set-off of $10,800 for rent-free occupancy and services rendered, reducing the award to $46,200.

The court rejected the statute of limitations defence, finding the limitation period commenced on January 28, 2018, when the mother indicated the relationship was at an end, and the action was commenced within two years.

The court also rejected the clean hands doctrine and premature claim defences.

The applicants applied to the Normal Farm Practice Protection Board regarding disturbances from the respondents' farm.

The Board dismissed the application and awarded costs against the applicants.

The applicants requested a review of the costs order only.

A vice-chair granted the review based on a reasonable apprehension of bias and ordered a new costs hearing.

Both parties appealed to the Divisional Court.

The respondents appealed the finding of bias, while the applicants argued the dismissal of the application should also have been overturned.

The Divisional Court quashed the respondents' appeal, finding the vice-chair's order was interlocutory.

The Court dismissed the applicants' appeal, holding the vice-chair did not err by only deciding the specific issue raised in the request for review.

The accused was charged with sexual interference of a six-year-old child contrary to the Criminal Code.

The incident allegedly occurred in 2019, but the complainant did not disclose the touching until 2023 after reacting fearfully to seeing the accused at a community skating rink.

The accused denied the allegations and suggested his brother may have been mistaken for him.

The court found the complainant's testimony regarding the core allegations to be credible and reliable despite her cognitive difficulties and the passage of time.

Ultimately, the court found the accused guilty of the charge.

The court considered whether the accused, Malachi Venus-Seaforth, had standing to bring a section 8 Charter application to exclude evidence obtained during a search of an apartment in Thunder Bay.

The court reviewed the facts, including the nature of the accused’s presence at the apartment, the degree of control exercised, and the legal principles governing reasonable expectation of privacy.

The court concluded that the accused was, at best, a transient occupant with minimal connection to the apartment and did not have a reasonable expectation of privacy.

The application for standing was dismissed.

The court sentenced Derek Kenney to 13 years’ incarceration for four counts of sexual assault against four separate complainants.

The decision details the facts of each offence, the circumstances of the offender, the impact on the victims, and the application of sentencing principles under the Criminal Code.

The court considered aggravating and mitigating factors, the positions of Crown and Defence, and the principle of totality, ultimately imposing consecutive sentences and ancillary orders including SOIRA, DNA, and weapons prohibitions.

The plaintiff, Esquire Rose Investments Corporation, sought summary judgment for damages arising from the defendant Matthew Moxness’s failure to close a real estate transaction.

The defendant argued that liability rested with a corporation formed after the agreement, not with him personally, and that the plaintiff failed to mitigate damages.

The court found that the corporation did not properly adopt the agreement and that the defendant remained personally liable.

The court also found the plaintiff took reasonable steps to mitigate damages and awarded $80,000, but denied additional claims for rental income, legal fees, and carrying costs due to insufficient proof.

S.K. was convicted of assaulting a child, H.J.P., and sentenced to a 3-month suspended sentence with 18 months’ probation and a lifetime weapons prohibition.

The court considered the context of domestic violence, the principles of denunciation and deterrence, and the applicability of Supreme Court guidance in Friesen and Marchand.

The Crown’s request for a common law peace bond was denied due to insufficient evidence of ongoing risk.

The decision emphasizes individualized sentencing and the heightened seriousness of offences against children.

The court considered costs following a family law trial between R.M. (the father) and C.D. (the mother).

Both parties sought costs, each claiming greater success at trial.

The court found that success was divided: the father was more successful on parenting issues, while the mother was more successful on financial issues.

The court reviewed the relevant principles and rules governing costs, including the impact of offers to settle and allegations of bad faith.

Ultimately, the court found no party acted in bad faith and that neither party was more successful overall.

As a result, no costs were awarded.

The appellant supplier claimed it was owed $600,000 for building materials and sought a declaration that the proceeds of the sale of a model home were held in trust under the Construction Act.

The motion judge ordered only a portion of the sale proceeds to be held in court under Rule 45.02, finding a serious issue to be tried only for the materials supplied to that specific home.

The appellant appealed, arguing the order was final.

The Divisional Court quashed the appeal, holding that the order was interlocutory because it did not finally determine the substantive rights of the parties regarding the scope of the trust.

This case involved Derek Kenney, who was charged with four counts of sexual assault against four adult complainants.

The accused denied the allegations, asserting consensual sexual activity with one complainant and no sexual activity with the others.

The court, applying the principles from R. v. W.(D.), found the complainants' evidence to be compelling and credible, rejecting the defence's arguments of collusion or influence from social media.

The court found the accused guilty on all four counts, concluding that the abrupt termination of relationships and the detailed, consistent accounts of the complainants, including allegations of drugging and coercive behaviour, were more believable than the accused's denials.

A law firm sued a former associate lawyer for $3 million, alleging breach of fiduciary duty and contract after he left to join a competing firm.

The firm sought a declaration that the departing lawyer was not entitled to compensation for unbilled work in progress (WIP) existing at the time of his departure.

The departing lawyer counterclaimed for his share of fees billed and collected post-departure.

On cross-motions for summary judgment, the court dismissed the law firm's damages claim, finding the lawyer's actions constituted permissible planning and compliance with professional obligations, not competition.

The court also held that the oral compensation agreement entitled the departing lawyer to his share of fees on files he had carriage of, once those files were billed and collected, regardless of his departure.

The applicant employer sought judicial review of an arbitrator's decision striking a one-day suspension given to a union representative for unprofessional conduct during and after a termination meeting.

The employer argued the arbitration was procedurally unfair and the arbitrator applied the wrong legal test.

The Divisional Court found that while the arbitrator's refusal to hear a preliminary objection regarding evidence admissibility breached procedural fairness, the outcome of a new hearing would inevitably be the same.

The arbitrator had accepted the employer's evidence regarding the conduct but correctly applied the legal test protecting union representatives from discipline unless their conduct is malicious, knowingly false, or intimidating.

The application for judicial review was dismissed.

The Crown brought an application under the Youth Criminal Justice Act to sentence the young person as an adult for the offence of manslaughter.

The young person, who was one month shy of 18 at the time of the offence, participated in a fatal attack on a friend.

The court considered the young person's significant Gladue factors, history of trauma, and rehabilitative progress while in custody.

The court found that the Crown failed to rebut the presumption of diminished moral blameworthiness and that a youth sentence was sufficient to hold the young person accountable.

The application was dismissed, and the young person was ordered to be sentenced as a youth, with sentencing delayed to allow for the development of a release plan.

The applicant sought an uncontested divorce, parenting orders, child support, and property division after the respondent failed to participate in the proceedings.

The court granted the divorce, ordered shared parenting with joint decision-making, and ordered the respondent to pay retroactive and ongoing child support.

The court also ordered the sale of the jointly owned matrimonial home, division of personal property, equalization of specific assets, and shared responsibility for joint debts.

Costs of $2,500 were awarded to the applicant.