Tracey J. Nieckarz

The parties, parents of a young child, both brought motions in a high-conflict family law proceeding.

The applicant father sought to admit a Family Court Clinic Assessment report from a prior child protection proceeding into evidence, while the respondent mother sought increased supervised parenting time.

The court held that under section 98 of the Child, Youth and Family Services Act, the report itself is inadmissible without the mother's consent, but the assessor may be called to testify regarding their opinions and recommendations.

The court also granted the mother's request for increased parenting time, adding one weekday evening to her schedule.

The defendants brought a motion to strike the plaintiffs' statement of claim arising from the workplace death of the plaintiffs' son and brother.

The plaintiffs alleged the defendants were negligent in failing to respond to a missed check-in, causing the father to search for and find his deceased son.

The court struck the negligence claims of the mother and sister, finding no recognized or novel duty of care owed to them due to lack of proximity and public policy concerns regarding indeterminate liability.

However, the court allowed the father's negligence claim to proceed based on his status as a rescuer.

The pleadings were struck in their entirety with leave to amend due to violations of the rules of pleading.

The Indigenous offender was sentenced for a random robbery and assault with a weapon (stabbing) against two women in a drive-thru.

The court considered the offender's youth, Fetal Alcohol Spectrum Disorder, and significant Gladue factors, alongside his recent rehabilitative efforts and sobriety.

Balancing denunciation and deterrence with rehabilitation, the court rejected the Crown's proposed 30-36 month sentence and imposed the defence's proposed sentence of 2 years less a day, minus enhanced pre-sentence custody credit, followed by 2 years of probation.

On a pre-trial Charter application in a sexual assault prosecution, the accused sought a stay of one count based on lost videotaped complainant statements and returned clothing that was never DNA tested.

The court held that the missing video statements were clearly relevant and that the Crown failed to provide an explanation sufficient to rebut unacceptable negligence, establishing a breach of the accused’s s. 7 rights.

However, the court was not prepared on the pre-trial record to determine the relevance of the lost DNA opportunity, or to find actual and irreparable prejudice justifying a stay under s. 24(1).

The application was dismissed as premature, without prejudice to revival at trial.

The applicants, nieces of the deceased, brought a motion for directions to challenge the validity of the deceased's 2014 Will, alleging lack of testamentary capacity and undue influence by the respondent neighbour.

The court found the applicants met the minimum evidentiary threshold by adducing evidence of the deceased's cognitive decline, delusions, and hospitalizations for confusion.

The court ordered a trial of the issues, production of solicitor and medical records, and a preservation order over the estate assets.

The accused brought an application for a stay of proceedings 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 accused faced three counts of sexual assault.

The total delay exceeded the 30-month presumptive ceiling.

The Crown argued that the delay was justified by exceptional circumstances, specifically the COVID-19 pandemic and unanticipated issues during the preliminary inquiry.

The court found that the Crown failed to establish that the pandemic or the preliminary inquiry issues caused the delay, attributing much of the delay to Crown inaction.

The application was granted and the charges were stayed.

The court heard three motions in related civil and family law actions to determine the distribution of $100,000 held by the Accountant of the Superior Court of Justice.

The funds were the remaining net sale proceeds of a property previously owned by the respondent.

The parties disputed the interpretation of the family law Minutes of Settlement regarding the calculation of the applicant's 50% share, specifically concerning add-backs for legal fees and whether the respondent could deduct his civil litigation legal fees.

The court found that only the legal fees attributable to the family law file should be added back and that the respondent was not entitled to deduct his civil litigation fees from the amount subject to division.

The defendant in a slip and fall personal injury action brought a motion seeking production of the plaintiff's pre-accident medical and employment records.

The plaintiff claimed damages for injuries to her right ankle and left knee, while the defendant argued her pre-existing chronic back and ankle conditions were relevant to assessing her original position and future functioning.

The court ordered production of the records, but limited the scope to documents specifically relating to back, ankle, leg, and foot issues from 2001 or 2003 onwards, finding that her entire medical history was not relevant.

The defendant brought a motion to dismiss the plaintiffs' action under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The court previously dismissed the claims relating to online expressions on matters of public interest.

In these supplementary reasons, the court considered whether s. 137.1 requires the dismissal of the entire proceeding, including claims for harassment and an expression unrelated to the public interest.

The court held that 'proceeding' in s. 137.1 does not mandate an 'all or nothing' dismissal, and claims not grounded in public interest expression must be allowed to continue.

The accused was tried on multiple historical child sexual offence counts arising from allegations by two children, with a sibling also giving evidence as an alleged witness to one pattern of conduct.

The court applied the reasonable doubt principles from Lifchus and the W.(D.) framework, emphasizing that the case could not be resolved as a simple credibility contest.

While the court found the children testified honestly to the best of their ability, significant reliability concerns arose from material inconsistencies, the evolution of disclosures, prior sexualized behaviour, ongoing family discussions, and the possibility that recollections had been influenced by conversations with others.

The accused's evidence was not accepted in its entirety, but it could not be completely discounted and, when assessed in the context of the full record, left the court with a reasonable doubt.

The accused was acquitted on all counts.

The plaintiffs, Daniele Marthe Hutterli and Charles Hutterli, brought a medical negligence action against Dr. Douglas Scott, alleging he failed to meet the standard of care in assessing Mrs. Hutterli's ankle injury.

Mrs. Hutterli sustained an ankle fracture but was misdiagnosed with a sprain, leading to delayed treatment.

The plaintiffs claimed increased cartilage damage and higher risk of osteoarthritis due to the delay.

The court found that Dr. Scott met the standard of care in applying the Ottawa Ankle Rules, despite the misdiagnosis, concluding it was an error in judgment, not negligence.

Furthermore, the court found the plaintiffs failed to prove causation or damages, as there was no evidence that the alleged harm (increased cartilage damage, osteoarthritis risk) was caused by the delay, rather than the original fracture, or that a better outcome would have resulted.

The action was dismissed.

The Plaintiff brought a motion to strike portions of the Defendant's Statement of Defence and Counterclaim, arguing they disclosed no reasonable cause of action (Rule 21.01(1)(b)) or were scandalous, frivolous, and/or vexatious (Rule 25.11(b)).

The Defendant sought leave to amend its pleading to incorporate an abuse of process claim.

The court found that the Defendant failed to properly plead the essential elements of the tort of abuse of process, specifically lacking special damages.

As a result, the Plaintiff's motion to strike certain paragraphs, including a claim for punitive damages based on abuse of process, was granted, and the Defendant's proposed amendments related to the abuse of process claim were denied.

The Plaintiff was deemed the successful party on the motions and entitled to costs.

The applicant union sought judicial review of a labour arbitrator's decision dismissing a grievance regarding kindergarten class sizes.

The arbitrator had interpreted O. Reg. 132/12 under the Education Act as requiring class size caps to be determined only on a specified date in September, allowing sizes to fluctuate thereafter.

The Divisional Court applied the reasonableness standard of review and found that the arbitrator's interpretation, based on the text, context, and purpose of the regulation, was internally coherent and justified.

The application for judicial review was dismissed.

The appellant landlord appealed a decision of the Landlord and Tenant Board.

At the hearing, the respondent tenants did not appear.

The court noted that the respondents' counsel had been removed from the record by a prior order, which was not in the court file, and the respondents had vacated the rental unit without leaving a forwarding address.

As there was no evidence that the respondents had been advised of the hearing date, the Divisional Court adjourned the appeal to a date to be set by the Registrar.

The Plaintiff sought substantial indemnity costs after successfully proving copyright infringement and being awarded statutory damages.

The Defendants argued for no costs or their own costs due to the Plaintiff's limited success and failure to accept their settlement offer.

The court awarded the Plaintiff partial indemnity costs of $30,000, finding that neither party's settlement offer triggered Rule 49.10 consequences and adjusting the Plaintiff's claimed costs for reasonableness and proportionality.

The Estate Trustee sought court direction regarding the residue of a will, as the named charitable beneficiary, Paroisse Sainte-Therese-de-L’Enfant-Jesus, had dissolved before the testator's death.

The court applied the cy-près doctrine, finding a general charitable intention on the part of the testator.

The residue was directed to La Fabrique de la Paroisse Sainte-Sophie, which continued the work of the original parish the testator had strong ties to, thereby honouring the testator's wishes.

The Father (Respondent in the original application, but moving party in this motion) sought to have the Mother (Applicant in the original application, but responding party in this motion) found in contempt of a final order dated March 28, 2019, alleging multiple breaches related to children's presence with the Mother's former spouse, healthcare decisions, exchange of documents, extra-curricular activities, and involving children in adult issues.

The Mother denied intentional breaches, arguing ambiguity in the order.

The court found some breaches proven beyond a reasonable doubt but exercised its discretion to decline a finding of contempt, issuing a stern admonishment instead, emphasizing the best interests of the children and the need for de-escalation of parental conflict.

This addendum to a March 25, 2020 endorsement clarifies the final judgment amount and provides instructions for costs submissions.

The parties agreed that the correct amount owing, with accrued interest to September 25, 2019, is $284,164.56, in favour of the Defendant.

The addendum also outlines procedures for serving and filing costs submissions via email, including the use of hyperlinks for caselaw references, given the suspension of court operations.

The Attorney General of Ontario (AGO) sought costs of $3,500 after successfully obtaining a forfeiture order for $32,125 CAD.

The interested party, James Wright, opposed the costs, arguing that the forfeiture was a sufficient windfall for the AGO and that his limited means should preclude a costs award.

The court, applying Rule 57.01(1) of the Rules of Civil Procedure and s. 131(1) of the Courts of Justice Act, found that while impecuniosity is a factor, it does not automatically relieve a party of costs, especially given the modest amount sought and the AGO's prior offer to settle.

The court awarded the AGO $3,500 in costs.

The plaintiff brought an action claiming she overpaid a private mortgage based on an alleged oral agreement to reduce the interest rate from 14% to prime plus 4% upon renewal.

The defendant estate counterclaimed for the outstanding balance at 14% interest and moved for summary judgment.

The court granted summary judgment, finding the plaintiff's claim was barred by the Statute of Frauds as there was no written evidence of the alleged oral agreement.

The court also held that the doctrine of part performance did not apply because the plaintiff's continued mortgage payments were not unequivocally referable to the alleged oral agreement.

The plaintiff's action was dismissed, and judgment was granted on the counterclaim.