Tracey J. Nieckarz

The applicant employer sought judicial review of an arbitrator's interlocutory decision finding that the employer engaged in prima facie discrimination by denying a creed-based exemption to its COVID-19 vaccination policy.

The Divisional Court raised the issue of prematurity, as the arbitrator had bifurcated the hearing and had not yet determined whether the employer could accommodate the grievor without undue hardship.

The Court dismissed the application for judicial review as premature, finding no exceptional or extraordinary circumstances to justify departing from the general rule against fragmenting ongoing administrative proceedings.

The Severance Plaintiffs brought a motion, supported by the O’Brien Plaintiffs and other defendants, to compel the Ministry of Transportation (HMK) to answer refusals and reattend examination for discovery in a highway negligence action.

HMK resisted, arguing it was not compellable for discovery under the Public Transportation and Highway Improvement Act (PTHIA) and that the questions were improper.

The court, following the precedent set by Longo v. The Queen and Stegenga v. Jans, found that HMK is not compellable for discovery in claims brought under the PTHIA, as the Act does not expressly provide for such rights.

The court also rejected the argument that HMK had attorned to the court's jurisdiction by voluntarily participating in discovery, noting that voluntary participation does not create a right to compel reattendance if no statutory right exists.

Consequently, the motion was dismissed.

The plaintiff brought a motion to set aside an administrative dismissal order and extend the time to serve a statement of claim arising from a 2013 motor vehicle accident.

The plaintiff's former counsel issued a statement of claim in 2015 but failed to serve it on the defendant insurer.

Subsequent counsel commenced a second, duplicative action without realizing the first existed, leading to the first action being administratively dismissed for delay.

The court found the delay was caused by solicitor inadvertence and that the plaintiff always intended to proceed with the claim.

The court also found the defendant insurer would not suffer significant prejudice, as it had been actively litigating the same issues in the second action and had amassed relevant medical evidence.

The motion was granted, the dismissal was set aside, and the time for service was extended.

Sentencing for a youthful Indigenous offender who pleaded guilty to multiple child sexual exploitation offences arising from possession of over 45,000 child pornography images and videos, online luring of underage users, voyeuristic recordings, redistribution of child sexual abuse material, and participation in sexual abuse live streams.

The court held that denunciation and deterrence were paramount under s. 718.01 and Friesen, but also gave meaningful effect to s. 718.2(e) and Gladue principles, recognizing family and community dislocation, cultural disconnection, remorse, guilty pleas, and rehabilitative efforts.

The court found numerous serious aggravating factors, including the ages and number of victims, the volume and nature of the material, active encouragement of abuse, and financial participation in live-stream exploitation.

A global sentence of six years was imposed, reduced by 617 days for pre-sentence custody, harsh custodial conditions, and stringent bail terms, together with ancillary orders including a lifetime SOIRA order and a 20-year s. 161 prohibition.

This endorsement addresses procedural issues arising from a previous order, including the defendant's failure to bring a Rule 59.06 motion to set aside a costs order and his informal application for a transcript from a separate case conference.

The court clarifies that case conference transcripts are generally not available to litigants unless ordered by the presiding judge, and directs the defendant to formally apply to the original presiding judge for the transcript.

The court also grants an extension of timelines for the defendant's anti-SLAPP motion materials and sets a new return date for the Rule 59.06 motion, while reiterating that its previous interlocutory order regarding the consolidation of anti-SLAPP motions stands, subject to appeal.

The plaintiff, Mizen Holdings Corporation, initiated a subrogated action against the City of Toronto and Ontario Excavac Inc. (OE) for water losses during condominium construction, alleging negligence.

The City and OE issued third-party claims for contribution and indemnity against Mizen's contractors: YYZed Project Management, Otomic Contractors Ltd., and Shor-Cais Foundation Contractors (the "third parties").

The third parties moved for summary dismissal of these claims, arguing Mizen had no right to sue them due to contractual waivers, covenants to insure, and the anti-subrogation rule, which would, under the Giffels principle, bar the defendants' claims.

The court dismissed the motion, finding genuine issues for trial regarding the scope of the covenant to insure and concluding that the contractual waivers had not crystallized at the time of the losses.

The anti-subrogation rule was also found not to apply to uninsured losses or to prevent the defendants' claims in these circumstances, particularly where waivers were post-tort conduct.

This endorsement from a case management conference addresses procedural issues in two related actions.

The court set a timeline for the defendant's anti-SLAPP motion in one action and ordered that any anti-SLAPP motion in the second action be heard concurrently, citing efficiency and consistency.

The court also set a timeline for the defendant's Rule 59 motion regarding a prior costs order.

The defendant's request for an out-of-town judge due to his media status was denied, with the court clarifying that such appointments are typically reserved for cases involving local lawyers to avoid perceived bias.

This endorsement details a case management/trial management conference held via Zoom.

Counsel reported progress in preparing for trial, including exchanging statements of agreed facts, Scott Schedules, and documents.

They are considering pleading amendments and the use of affidavits for evidence-in-chief to shorten the trial.

The parties agreed to be placed on a trial list and to conduct a further pre-trial/trial management conference before Justice Fitzpatrick, who previously held a case management role.

The court ordered the matter to be placed on a running list for trial commencing October 10, 2023, for four days by Zoom, with the running list to be spoken to on October 4, 2023.

A further pre-trial/trial management conference before Fitzpatrick J. is to be scheduled before the end of June.

The Applicant sought an injunction and damages against the Respondents for nuisance, trespass, and interference with a mutual right-of-way easement during a construction project on the Respondents' adjacent property.

The court found that the Respondents committed nuisance and repeated trespasses, which were not trivial, and awarded damages and punitive damages.

However, the court did not find actionable encroachment on the easement, concluding that temporary impediments did not constitute substantial interference.

An injunction was granted to prevent future trespass during the remaining construction.

The applicant sought a retroactive interjurisdictional child support variation order from the respondent after their child moved to live with him.

The court considered the factors for retroactive support, including the reason for delay, parental conduct, and the child's needs.

Despite administrative delays in the interjurisdictional process and some shared blame for lack of direct communication, the court found the respondent's conduct blameworthy for ignoring her support obligation.

The court ordered child support retroactive to the first month following the commencement of the application, adjusting the quantum based on the respondent's estimated and calculated incomes for various periods.

The defendant corporation sought leave under Rule 15.01(2) of the Rules of Civil Procedure for a non-lawyer shareholder, officer, and director to represent it in the litigation.

The plaintiff opposed, raising concerns about increased costs and delays due to the proposed representative's lack of legal understanding.

The court dismissed the motion, finding that the proposed representative did not adequately grasp the legal issues, and the defendant failed to demonstrate financial incapability to retain counsel.

The court also upheld a previous costs order against the defendant, finding its submissions to be an unwarranted attack on opposing counsel rather than focusing on costs principles.

The moving party sought to set aside a 2002 default child support order, arguing he never received notice of the proceedings and was not the child's father.

The original applicant was deceased, and the arrears were being enforced by an assignee.

The court applied the Mountain View Farms factors and dismissed the motion, finding that setting aside the 20-year-old order would negatively impact the integrity of the administration of justice, as the moving party had been aware of the potential claim in 2002 but chose to ignore it.

The applicant father brought a motion for temporary orders requiring the respondent mother to ensure their 6-year-old child attends school and extra-curricular activities consistently during her parenting time.

The father also sought orders regarding the child's passport renewal and social media postings.

The mother opposed the motion, arguing the child was struggling with the shared parenting arrangement and needed more time with her, and requested the appointment of the Office of the Children's Lawyer (OCL).

The court found that the parents' high conflict was negatively impacting the child and that consistent attendance at school and activities was in the child's best interests.

The court granted the father's requests regarding school, activities, and the passport, but declined to restrict the mother's social media use.

The court also requested the involvement of the OCL.

The applicant sought partition and sale of a jointly owned home, which she co-owned with the respondent, her former romantic partner.

The respondent, who continued to reside in the home, opposed the sale, arguing that the applicant had relinquished her interest years prior and that a forced sale would cause him significant hardship.

The court affirmed the applicant's prima facie right to partition and sale under the Partition Act, finding no evidence of malicious, vexatious, or oppressive conduct on her part.

The court ordered the partition and sale of the property, allowing the respondent a period of time to secure alternate accommodation and seek legal advice regarding potential claims, with the sale proceeds to be held in trust.

The applicant sought a declaration that his automobile insurer had a duty to defend him in a civil action.

The underlying action alleged the applicant committed a public nuisance and caused hearing damage by playing loud music from externally powered speakers placed in the rear hatch of his parked vehicle during a protest.

Applying the Amos test, the court found that the vehicle was merely used as a platform for the speakers and the alleged tort did not arise from the ordinary and well-known use and operation of an automobile.

The application was dismissed.

The defendants brought a motion to dismiss or strike the plaintiff's Statement of Claim, arguing that the "City of Thunder Bay" and "Thunder Bay Police" were not proper parties, that the action disclosed no reasonable cause of action, and that it was scandalous, frivolous, or vexatious due to a lack of material facts.

The plaintiff, self-represented, acknowledged deficiencies but sought leave to amend.

The court granted the defendants' motion, striking the Statement of Claim with leave for the plaintiff to file a fresh claim against the proper party, the Thunder Bay Police Services Board, within 30 days, emphasizing the need for material facts and proper pleading.

The plaintiffs brought a motion for leave to deliver a Fresh Amended Amended Statement of Claim, following two previous instances where their pleadings were struck.

The defendants opposed, arguing that new Family Law Act (FLA) claims (derivative of Greg Sigurdson's negligence claim) and a loss of income claim (belonging to a corporation, not Greg) were statute-barred by the Limitations Act, 2002.

They also argued a specific paragraph was vexatious.

The court granted leave in part, striking the vexatious paragraph and requiring clarification for the loss of income claim to be Greg's personal claim.

The court found the loss of income claim was connected to the original factual matrix, and the FLA claims were arguably so, allowing them to proceed without prejudice to the defendants' right to raise a limitations defence at trial or summary motion.

This decision addresses the costs of a motion brought by the defendants to strike the plaintiffs' pleading without leave to amend and/or for partial summary judgment dismissing Family Law Act claims.

The court had previously granted the defendants' motion, striking the pleading but with leave to amend, and dismissing the FLA claims.

The defendants sought costs, arguing they were the successful party.

The plaintiffs contended success was divided.

The court found the defendants to be the successful parties overall, given their success on the primary issues.

The plaintiffs' conduct, including multiple deficient pleadings and raising irrelevant family law issues, necessitated the motion and increased costs.

The court awarded costs to the defendants.

The trial addressed decision-making authority and parenting time for two children of the relationship, and child support for one child from the Mother's previous relationship.

The court granted the Mother sole decision-making authority and primary care of the children, finding that the Father's actions, including involving children in adult conflict and demonstrating a lack of insight into his detrimental behaviour, rendered shared parenting unworkable and contrary to the children's best interests.

The Father was ordered to pay child support for both the children of the relationship and the Mother's non-biological child.

A restraining order against the Father was continued due to concerns for the Mother's psychological safety.

The plaintiff sued the Attorney General of Ontario for malicious prosecution after a sexual assault charge against him was stayed.

The defendant moved to strike the amended statement of claim for failing to plead sufficient material facts, particularly regarding malice and the absence of reasonable and probable cause.

The plaintiff brought a cross-motion for early documentary discovery, arguing he needed the Crown's file to properly plead his case.

The court struck the statement of claim but granted the plaintiff leave to amend.

The court also ordered the defendant to provide limited early disclosure of the Crown's file to allow the plaintiff to rectify the deficiencies in his pleading.