Tracey J. Nieckarz

The plaintiff brought a motion for particulars regarding allegations of fraud and breach of fiduciary duty in the defendants' counterclaim.

In support, the plaintiff filed an affidavit stating he had no knowledge of the allegations.

The defendants sought to cross-examine the plaintiff on his affidavit, which the plaintiff resisted as an abuse of process and premature discovery.

The court held that while there is a prima facie right to cross-examine on an affidavit, the court has discretion to limit it to prevent a fishing expedition.

The court permitted the cross-examination but strictly limited its scope to the plaintiff's knowledge of the particulars sought.

The applicant mother brought a motion for sole decision-making authority, primary residence, and retroactive child support.

The court declined to make a parenting order due to insufficient evidence but ordered temporary ongoing child support based on the respondent father's new salary of $105,000.

The court declined to order retroactive support given the father's period of unemployment, and awarded the mother $650 in costs.

Two siblings, acting as co-Estate Trustees for their late father's estate, engaged in extensive litigation against each other, paralyzing the estate's administration.

The brother brought a motion to remove his sister as co-Estate Trustee and to appoint an Estate Trustee During Litigation (ETDL).

The sister brought a cross-motion to strike the brother's counterclaim regarding the ownership of a corporate asset, arguing it was statute-barred.

The court declined to remove the sister as trustee on a paper record but appointed an ETDL due to the severe conflict of interest and hostility between the siblings.

The motion to strike the counterclaim was dismissed as there were triable issues regarding discoverability and the nature of the declaratory relief sought.

The appellant father appealed a summary judgment order finding his two children in need of protection and placing them in the custody of their maternal aunt.

The father argued ineffective assistance of counsel, procedural unfairness, and errors in fact-finding regarding his sobriety and history of domestic violence.

The Divisional Court dismissed the appeal, finding that the ineffective assistance claim failed because former counsel was not given notice, there was no procedural unfairness, and the motion judge's factual findings were supported by the evidence and free of palpable and overriding error.

The court held that the children required stability and permanency, which the current custodial arrangement provided.

The applicant mother brought motions to vary and to stay a trial order pending her appeal.

The trial order had denied her request to relocate with the child to British Columbia, awarded primary care to the respondent father unless the mother lived in Sault Ste.

Marie, and imputed an income of $50,000 to the mother for child support purposes.

The court dismissed the motion to vary as procedurally improper.

The court dismissed the motion to stay the parenting provisions, finding no evidence of harm to the child and emphasizing the need for stability.

However, the court granted a stay of the child support payment pending appeal, noting the mother's financial hardship and the lack of detriment to the father.

The appellant appealed the dismissal of his application under the Partition Act for the sale of a property registered solely in the respondent's name.

The application judge had dismissed the claim, finding on a paper record that the funds advanced by the appellant were a loan, not an investment giving rise to a trust interest.

The Divisional Court allowed the appeal, holding that the application judge erred in law by assessing credibility on material facts in dispute without directing a trial to hear viva voce evidence.

The judgment was set aside and a trial of the whole application was ordered.

The applicant sought judicial review of a decision by the Human Rights Tribunal of Ontario denying her request to reactivate her human rights application.

The request was made 40 days late due to the inadvertence of her counsel.

The Tribunal applied the strict test under section 34(2) of the Human Rights Code, requiring a good faith explanation and no substantial prejudice, rather than its broader procedural rules.

The Divisional Court found the Tribunal's decision unreasonable, as it fettered its discretion by refusing to consider prejudice and misapplied its own jurisprudence.

The decision was set aside and remitted to a different Tribunal member.

Following a trial regarding a construction contract dispute where the plaintiff was substantially successful, the parties could not agree on costs.

The plaintiff sought costs of $63,898.45, relying on a Rule 49 offer to settle.

The defendants argued the plaintiff should be denied costs under Rule 76.13(3) because the action should have been pursued under the simplified procedure.

The court found it was reasonable for the plaintiff to have proceeded under the ordinary procedure given the initial construction lien claim and the need for viva voce evidence to resolve credibility issues.

The court awarded the plaintiff costs of $40,000 inclusive.

The parties advised the court in writing that the matter had been settled.

On consent, the court ordered that the appeal be dismissed without costs to either party.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision denying him benefits for a back injury following a workplace fall.

The Tribunal had found the fall was not a significant contributing factor to the injury, relying heavily on the applicant's delay in seeking medical treatment and reporting pain.

The Divisional Court found the Tribunal's decision unreasonable because it failed to account for uncontradicted medical evidence from the applicant's treating physician and physiotherapist.

The Court granted the application, set aside the decision, and, given the inevitable outcome and lengthy delay, declared the applicant entitled to benefits under s. 13(1) of the WSIA, remitting the matter only for the assessment of those benefits.

The appellant insurer appealed a License Appeal Tribunal decision reinstating the respondent's Income Replacement Benefits.

The benefits had been suspended after the respondent failed to provide requested medical records.

The Tribunal found the respondent had a 'reasonable explanation' for the delay under s. 33(8)(b) of the Statutory Accident Benefits Schedule.

The Divisional Court dismissed the appeal, holding that the Adjudicator applied the correct legal test for 'reasonable explanation' by considering both objective and subjective factors, and provided adequate reasons for the decision.

The accused, Patrick O’Keese, was charged with second-degree murder and two counts of breach of recognizance.

The Crown alleged O'Keese murdered Brayden Moonias and then attacked Eric Lawson.

The court found that while an unlawful act caused Moonias's death, the Crown failed to prove beyond a reasonable doubt that O'Keese committed the assault.

The court found reasonable alternative inferences regarding the timing of the Lawson attack, which impacted the interpretation of O'Keese's post-offence conduct.

Consequently, O'Keese was acquitted of murder and manslaughter but convicted on both breach of recognizance counts.

The appellant appealed an order made by an application judge concerning guardianship and property disputes.

The Divisional Court allowed the appeal, finding that the application judge erred in law by failing to provide any reasons for his decision, which rendered it incapable of appellate review.

Furthermore, the application judge breached procedural fairness by making orders on matters that were not requested in the pleadings and that contradicted a prior consent order, thereby violating the principle of res judicata.

The matter was remitted to a different judge.

The parties separated in 2016 after a 17-year marriage.

The applicant sought a divorce, retroactive and ongoing child support, section 7 expenses, spousal support, an unequal division of net family property, and the transfer of the matrimonial home.

The respondent sought an equalization payment, occupation rent, and the sale of the home.

The court granted the divorce, ordered retroactive child support and section 7 expenses, and awarded temporary spousal support until the matrimonial home is sold or transferred.

The court found no grounds for an unequal division of net family property and ordered the applicant to pay an equalization payment to the respondent.

The matrimonial home was ordered to be sold unless the parties could agree on transfer terms.

The plaintiff contractor sued the defendant homeowners for unpaid amounts and extras on a home renovation project.

The defendants counterclaimed for overpayment and deficiencies, arguing the contract was for a lower 'turn-key' price.

The court found the contract price was $183,500 plus HST, and the defendants breached the contract by unreasonably terminating it.

The plaintiff was awarded the balance owing plus proven extras on a quantum meruit basis, less credits for incomplete and deficient work, resulting in a net judgment of $61,940.73 for the plaintiff.

The accused pleaded guilty to manslaughter for her role in the brutal beating death of a vulnerable young woman.

The court weighed the significant aggravating factors, including the prolonged group assault and degrading treatment of the victim's body, against the mitigating factors, which included the accused's guilty plea, remorse, and profound Gladue factors stemming from intergenerational trauma and abuse.

The court sentenced the accused to 8 years' imprisonment, less enhanced credit for pre-sentence custody, emphasizing denunciation and deterrence while acknowledging the need for rehabilitation.

The plaintiff contractor sued the defendant homeowners for unpaid invoices totaling approximately $35,000 relating to a new home build.

The parties had an oral "time and materials" contract.

The defendants counterclaimed, alleging overcharges for labour, improper 15% mark-ups on materials and subcontractors, and damages for deficient work.

The court found the agreed labour rate was $60/hour for the primary carpenters and $40/hour for general labourers.

The court disallowed the 15% mark-up on materials as it was not an express or implied term, but allowed the mark-up on most subcontractors on a quantum meruit basis.

The defendants' counterclaim for deficiencies was dismissed for lack of proof.

The plaintiff was granted judgment subject to set-offs for the disallowed mark-ups, and a declaration for a construction lien.

The defendants sought costs after a Status Hearing was resolved on consent.

The plaintiff's action had not been set down for trial within five years, prompting the defendants to schedule a case conference which the plaintiff failed to attend.

A Status Hearing was subsequently ordered.

The plaintiff eventually provided materials explaining the delay and the parties agreed to a timetable.

The court found that the plaintiff's initial non-responsiveness and failure to attend the case conference caused the defendants to incur unnecessary costs.

The court awarded the defendants costs fixed at $2,500.

The court determined costs following motions in related family and civil actions.

The applicant in the family action sought full recovery costs, alleging bad faith by the respondent in failing to honour settlement minutes.

The court found the respondent's conduct unreasonable but not amounting to bad faith, awarding partial costs.

In the civil action, the plaintiffs sought costs against the respondent's lawyer personally under Rule 57.07.

The court declined to order costs against the lawyer personally, finding it was not one of the clearest cases, but awarded partial indemnity costs against the respondent.

The defendant was partially successful on an anti-SLAPP motion, resulting in the dismissal of the majority of the plaintiffs' claims.

The defendant sought full indemnity costs and damages for bad faith.

The court awarded the defendant substantial indemnity costs of $17,500, finding that while the principles of s. 137.1(7) applied, a reduction was warranted due to the plaintiffs' offer to settle and excessive time claimed.

The claim for damages under s. 137.1(9) was dismissed, as the court found the defendant's counter-offer punitive and lacked evidence of damages.