Vibhu Sharma

Five organizations brought motions for leave to intervene in an appeal concerning the constitutionality of provincial legislation that required the removal of bicycle lanes in Toronto.

The underlying judgment found the legislation violated section 7 of the Charter.

The motion judge granted leave to all five proposed interveners, but limited the scope of their interventions to specific issues such as the positive/negative rights dichotomy, the interpretation of recent section 7 jurisprudence, and the application of equality and child-interest principles to the gross disproportionality analysis.

The interveners were restricted to 10-page factums and brief oral submissions.

Following a successful application ordering the respondents to hold an annual general meeting for the election of directors, the applicants sought costs on a full or substantial indemnity basis.

The court rejected the request for elevated costs, finding the respondents' conduct did not rise to the level of reprehensible or outrageous behaviour.

The court awarded costs to the applicants on a partial indemnity basis in the all-inclusive amount of $58,000, payable by all respondents except one who did not oppose the application.

The applicants, members of an incorporated church and registered charity, sought an order compelling the church's board of directors to hold an annual general meeting (AGM) and elections, which had not occurred since 2016.

The respondents argued the court lacked jurisdiction, claiming the church was a voluntary religious association and the dispute was ecclesiastical.

The Superior Court of Justice rejected this argument, finding the church was a corporation governed by the Not-for-Profit Corporations Act, 2010, and the applicants had established legal rights under the statute.

The court ordered the holding of an AGM under the supervision of a neutral chair for the purpose of electing a new board of directors.

The applicant mother sought the return of her child to the Czech Republic pursuant to the Hague Convention after the respondent father removed the child to Canada without her consent.

The father initially opposed the return, claiming the child's habitual residence was Canada and that the child objected to returning.

An independent assessment revealed the child wished to return to the Czech Republic.

The court found the child was habitually resident in the Czech Republic, the mother had custody rights, and the removal was wrongful.

The court ordered the immediate return of the child to the Czech Republic.

This decision addresses the costs of motions previously heard, where Rakhi Kalia's motion to dismiss the action or disqualify counsel was largely dismissed, and Adarsh Kalia's cross-motion for a timetable and case management was granted.

The late Mrs. Kalia's estate sought costs on a substantial indemnity scale, alleging Rakhi Kalia's delaying tactics.

The court found that while Rakhi Kalia's unsuccessful motion delayed the action, her conduct was not reprehensible enough to warrant substantial indemnity costs.

The court awarded costs on a partial indemnity basis to Mrs. Kalia's estate in the amount of $13,500.00, all inclusive.

The appellant, Global Work & Travel Co. Inc., appealed a motion judge's decision that dismissed its motion to dismiss or stay an action based on lack of jurisdiction simpliciter and forum non conveniens.

The action was brought by the respondents (plaintiffs) following a tragic motor scooter accident in Thailand that resulted in the death of one sister and serious injury to another, who had travelled there through the appellant's "Teach in Thailand" program.

The Court of Appeal upheld the motion judge's finding of a real and substantial connection to Ontario, particularly regarding claims of negligent misrepresentation and negligence committed in Ontario, and affirmed the application of the "good arguable case" test.

The appeal was dismissed.

The defendant, Rakhi Kalia, brought a motion to dismiss an action commenced by her mother, Adarsh Kalia, alleging the plaintiff's lawyer lacked authority and had a conflict of interest.

Adarsh Kalia, through her litigation guardian, cross-moved for a timetable and case management.

The court found the lawyer was properly authorized, initially by a power of attorney and subsequently by the Public Guardian and Trustee.

The court dismissed Rakhi's motion (except for granting leave to amend her Statement of Defence) and granted Adarsh Kalia's cross-motion, ordering a case conference to establish a timetable for the action.

Following the dismissal of the defendant's motion to stay or dismiss the action for lack of jurisdiction, the successful plaintiffs sought costs of $51,474.50 on a partial indemnity basis.

The defendant did not contest entitlement but disputed the quantum, arguing the hourly rates were high and time was spent on unnecessary steps.

The court found the hourly rates reasonable and declined to conduct a detailed post-mortem of the litigation steps.

Noting the amount sought was comparable to what the defendant would have claimed, the court awarded the plaintiffs costs in the requested amount of $51,474.50.

This costs endorsement followed a motion concerning the sale of a jointly owned investment property.

Both parties sought costs, with the applicant seeking partial indemnity costs and the respondent seeking substantial or partial indemnity costs.

The court found that success on the underlying motion was mixed, although the applicant was more successful regarding property repairs.

The respondent's offers to settle did not comply with Rule 49 of the Rules of Civil Procedure as they were delivered too late.

Given the mixed success and non-compliant offers, the court determined it was not appropriate to make any costs order.

The defendant, Global Work & Travel Co. Inc., brought a motion to dismiss or stay an action commenced by the plaintiffs (Nora Vahle, Marija Vahle's estate, and her parents) in Ontario.

The plaintiffs sued for damages arising from negligent misrepresentation, negligence, breach of contract, and breach of trust after Nora and Marija were involved in a fatal motor scooter accident in Thailand while participating in the defendant's "Teach in Thailand" program.

The motion challenged the Ontario court's jurisdiction simpliciter and argued that Ontario was not the convenient forum (forum non conveniens).

The court found a real and substantial connection to Ontario based on the tort of negligent misrepresentation being committed where representations were received and relied upon (Ontario), and the defendant carrying on business in Ontario through e-commerce and placing clients in Ontario.

The presumption of jurisdiction was not rebutted.

The court also determined that the defendant failed to demonstrate that Thailand was clearly a more appropriate forum, considering factors such as the parties' location in Canada, the contract's Canadian law clause, and potential juridical disadvantage for the plaintiffs in Thailand.

The motion was dismissed.

The defendant, Sandeep Prabakhar, brought a motion to set aside default judgment, the noting in default, and a writ of seizure and sale obtained by the plaintiff, Merchant Advance Capital Ltd. Prabakhar claimed he was a victim of fraud, denying he signed the underlying agreement or personal guarantee, and that his previous counsel failed to act promptly.

The court applied the test from Mountain View Farms Ltd. v. McQueen, finding a plausible explanation for the default and an arguable defence with an "air of reality." The court also determined that the overall justice of the case favoured setting aside the default and removing the writ, as the plaintiff had rushed to judgment without warning.

The defendant Sandhu brought a motion for summary judgment to dismiss the action against her, arguing that a settlement agreement had resolved the dispute.

The plaintiff Zaib opposed, alleging her signature on the agreement was forged.

The court ruled the defendant's expert handwriting report inadmissible because it was presented as an exhibit to a legal assistant's affidavit, preventing cross-examination of the expert.

Given the conflicting evidence regarding the agreement's authenticity and numerous inconsistencies in the defendant's discovery testimony, the court found that credibility was a genuine issue requiring a trial.

The motion for summary judgment was dismissed.

The applicant, a priest, sought interim interlocutory relief to prevent his termination and restriction from the St. Michael Eritrean Orthodox Tewahdo Church by its Board.

The applicant disputed the Board's authority, arguing it rested with the Diocese and Synod.

The respondents contended the termination was valid due to the applicant's demands contrary to Canadian Revenue Agency rules for charitable organizations and the Board's contractual right to terminate.

The court applied the three-part test for interlocutory injunctions from R.JR – MacDonald Inc. v. Canada (Attorney-General).

While a serious issue was found, the court determined there was no irreparable harm that could not be quantified monetarily.

The balance of convenience, considering public interest and congregant safety due to past incidents, did not favour the applicant.

The application for interim relief was dismissed.

The Palkowski defendants moved to dismiss or stay the plaintiff's action for failure to pay two outstanding costs orders and for security for costs.

The plaintiff opposed, claiming impecuniosity.

The court found the plaintiff failed to establish impecuniosity but declined to dismiss the action immediately, granting the plaintiff 60 days to pay the outstanding costs.

The motion for security for costs was dismissed due to delay in bringing the motion and the complexity of the case, making the merits a neutral factor.

No costs were awarded for either the current motion or the prior motion to set aside the Registrar's dismissal order.

The plaintiffs appealed a Master's order releasing over $450,000 held in trust as security to the defendants.

The funds were deposited pursuant to an undertaking in exchange for the discharge of a construction lien.

The Master had ordered the release of the funds because the plaintiffs failed to set the action down for trial within two years, reasoning that the funds were akin to security paid into court to vacate a lien under the Construction Lien Act.

The Divisional Court allowed the appeal, finding that the Master erred in conflating the discharge of a lien with vacating a lien, and that the undertaking clearly intended the funds to be held pending final resolution of the dispute.

The parties attended a case conference regarding the plaintiff's summary judgment motion.

The defendants raised issues with the plaintiff's materials, including the need for certified translations of Spanish documents and potential defects in the commissioning of an affidavit.

The court directed the plaintiff to provide certified translations and correct certain exhibits.

The court also directed the parties to schedule a three-hour hearing to address the defendants' anticipated motions to strike portions of the plaintiff's affidavit and to strike the statement of claim for failure to pay an outstanding costs award.

The applicant physician sought judicial review of a decision by the Health Professions Appeal and Review Board.

The Board had directed the Inquiry, Complaints and Reports Committee (ICRC) to reconsider whether the applicant breached s. 7 of the Advertising Regulation regarding steering.

The Divisional Court found that the Board unreasonably focused on only one of the ICRC's reasons for deferring consideration of s. 7, ignoring the ICRC's valid conclusion that a caution for other advertising breaches was a sufficient disposition.

The application for judicial review was allowed and the Board's direction was set aside.