Wendy M. Matheson

The appellant appealed an order reducing and ultimately terminating her spousal support.

The respondent, a former police officer, had voluntarily retired at age 51 and successfully argued at first instance that this constituted a material change in circumstances.

The Divisional Court allowed the appeal, finding that the motion judge made a palpable and overriding error in concluding the parties had agreed to an early retirement date during their initial settlement.

The Court held that voluntary early retirement by a payor who retains the capacity to earn income does not constitute a material change in circumstances.

The Court also found errors in the motion judge's application of the rule against double-dipping and the imposition of a termination date on support for a disabled spouse.

The original spousal support order was reinstated.

The applicant brought a motion to strike an affidavit filed by a respondent in an application to recognize and enforce a foreign arbitral award under the International Commercial Arbitration Act.

The affidavit alleged that the applicant had engaged in money laundering and other criminal activity relating to the investment that was the subject of the arbitration.

The court held that the affidavit attempted to relitigate issues already determined by the arbitral tribunal and would improperly create a “trial within a trial” on the merits of the award.

Because recognition and enforcement proceedings under the UNCITRAL Model Law permit only narrow defences, the affidavit was clearly irrelevant and scandalous.

The affidavit was struck, though it could remain in the record solely as part of the Paris annulment proceedings.

A state-owned corporation moved to set aside or vary a Mareva injunction freezing shares and dividends of a Canadian mining company in aid of enforcing a foreign arbitral award against a sovereign state.

The moving party argued the injunction should be set aside for lack of full and frank disclosure and because subsequent appellate decisions undermined the factual basis relied upon to establish that the state beneficially owned the frozen shares.

The court held the applicant had exercised reasonable diligence and did not breach the duty of full and frank disclosure.

However, later appellate decisions overturning related rulings significantly weakened the evidentiary basis supporting the injunction.

The court ordered the Mareva injunction set aside at a future date, varied it immediately to reduce the amount of frozen assets, and permitted the award creditor time to bring a new motion on notice.

Subsequent mortgagees challenged the validity of a first mortgagee’s power of sale of a Toronto property, alleging they were never served with the required notice and that the notice misstated the amount owing under the mortgage.

The court found the notice of sale had not been served on the subsequent encumbrancers due to a mailing error and that the amount claimed owing was materially overstated through the improper inclusion of pre‑assignment expenses.

As a result, the statutory requirements of the Mortgages Act were not satisfied and the power of sale was invalid.

The purchaser was a bona fide purchaser for value but had actual notice that the validity of the sale was being challenged and therefore could not rely on statutory protections for “professed compliance.” The purchaser and related subsequent mortgagees did not obtain valid title or charges as against the applicants, though the independent first mortgagee lender retained a valid interest.

The plaintiff, owner of a US patent for an orthodontic bracket, sued the defendant for breach of a Licence Agreement, alleging the defendant failed to pay royalties on new bracket products.

The court applied US patent law to construe the patent claims and determine infringement.

The court found that the accused products did not infringe the patent because they lacked a slidable locking shutter that moved entirely by sliding motion.

As the products were not covered by the patent, they were not subject to the Licence Agreement, and the plaintiff's claims for royalties and aggravated damages were dismissed.

A patent licence dispute arose concerning whether certain orthodontic brackets sold by the defendant were covered by a U.S. patent licensed to the defendant under a royalty agreement.

The plaintiff alleged the products fell within several patent claims and sought unpaid royalties and aggravated damages.

The court conducted a claim construction analysis under U.S. patent law principles and compared the patent claims with the accused products.

It held that although some claim elements were present, the products did not include the required "slidable locking shutter" operating through a sliding motion between open and closed positions.

Because a required claim element was absent, the products did not infringe the patent and were not covered by the licence agreement.

Following a jury trial arising from a motor vehicle accident, the plaintiff obtained a damages award after the jury found the defendant negligent.

The plaintiff sought substantial indemnity costs of approximately $547,000 or partial indemnity costs of approximately $417,000, while the defendant argued costs should be limited to $100,000 in fees and $50,000 in disbursements.

Applying Rule 57.01 of the Rules of Civil Procedure and the guidance from Boucher v. Public Accountants Council for the Province of Ontario, the court considered factors including the importance of the claim, the complexity of the medical evidence, the conduct of the parties at trial, and the proportionality of costs to the damages recovered.

The court concluded that substantial indemnity costs were not justified but that significant partial indemnity costs were appropriate given the complexity of the evidence and trial process.

Following a summary judgment decision dismissing a limitation period defence, the court addressed costs arising from multiple related motions.

The plaintiff sought partial indemnity costs for the successful summary judgment motion and for two additional motions involving the corporate defendant: an unsuccessful motion to set aside noting in default and a successful motion for default judgment.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure, the court exercised its discretion to award reasonable fixed costs reflecting the work required for each motion.

Costs of $1,000 each were ordered against the corporate defendant for the two ancillary motions, and $9,000 was ordered against the individual defendant for the summary judgment motion.

Following dismissal of a negligence action against a lawyer, the successful defendant sought partial indemnity costs of approximately $74,000.

The plaintiffs challenged the quantum, arguing that certain hours were excessive, that some work should have been done by junior counsel, and that an expert report not used at trial should not be compensable.

The court applied the discretionary factors under Rule 57.01 of the Rules of Civil Procedure, emphasizing fairness and reasonableness in light of the issues and expectations of the parties.

While the hourly rates and expert report were found reasonable, some time entries and disbursements were reduced.

The court awarded reduced costs inclusive of disbursements and tax.

The plaintiff moved for summary judgment after the insurer declared her automobile insurance policy void ab initio based on an alleged misrepresentation that no other licensed drivers lived in her household.

The insurer relied on s. 233 of the Insurance Act and asserted that the plaintiff’s former partner was living with her when the application was made.

The court found the insurer failed to meet its evidentiary burden to establish a knowing misrepresentation and had not put its best foot forward on the motion.

The defendant’s evidence was largely indirect, hearsay, or overstated, while the plaintiff’s evidence was unchallenged.

Summary judgment was granted declaring the policy valid and requiring the insurer to honour its obligations.

Following a trial with divided success, the successful corporate plaintiff sought substantial costs and pre-judgment interest after recovering only $12,600 on a breach of fiduciary duty claim, while the individual plaintiff's claim was dismissed.

The court applied the Rule 57.01 factors, considered Rule 57.05(1) given the recovery was within Small Claims Court jurisdiction, rejected the argument that the abandoned counterclaim justified substantial indemnity costs, and reduced the claim in light of limited damages and improper docket entries.

Costs of $10,000 inclusive were awarded only to the successful corporate plaintiff.

Pre-judgment interest was fixed at the statutory default rate from October 31, 2010, with post-judgment interest to follow in the ordinary course.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action based on the expiry of the applicable limitation period.

The plaintiff landlord sued the corporate tenant for breach of a commercial lease and the personal defendant director for alter ego liability, inducing breach of contract, intentional interference with contractual relations, and oppression.

The court held that the six-year limitation period under the Real Property Limitations Act applied to the breach of lease claim against the director as an alter ego.

The court found that the two-year limitation period under the Limitations Act applied to the tort and oppression claims, but these claims were not discoverable before December 14, 2010.

The motion for summary judgment was dismissed, and summary judgment was granted against the personal defendant dismissing his limitation period defence.

The appellant appealed a trial decision that dismissed his claim for spousal support and awarded no costs.

The parties had a significant income disparity, with the respondent earning substantially more.

The Divisional Court found that the trial judge erred by failing to conduct an analysis of the means and needs of the parties and the impact of child support on the appellant's ability to support himself.

The court allowed the appeal, awarded spousal support of $800 per month based on the Spousal Support Advisory Guidelines, and awarded costs of the trial and appeal to the appellant.

The appellant appealed a trial decision regarding custody, access, and section 7 expenses.

He argued the trial judge was biased, improperly curtailed his questioning, and erred in granting the respondent final decision-making power and ordering him to pay 100% of extraordinary expenses.

The Divisional Court dismissed the appeal, finding the trial judge's interventions appropriate, the custody arrangement sensible to minimize conflict, and the section 7 order a reasonable exercise of discretion given the significant income disparity between the parties.

The plaintiffs alleged negligence against a lawyer who discharged their mortgages without authorization, claiming they had never met the lawyer or signed discharge authorizations.

The lawyer maintained that the plaintiffs attended his office, produced identification, and executed written authorizations.

The court evaluated conflicting testimony, contemporaneous documentation, and the lawyer’s standard practice for client identification.

Finding the lawyer’s evidence more credible and supported by photocopies of the plaintiffs’ identification and witnessed signatures, the court concluded that the plaintiffs had likely attended and authorized the discharges or, alternatively, that the lawyer had exercised reasonable care consistent with the applicable standard.

The plaintiffs also failed to prove the alleged outstanding mortgage advances.

The negligence claim was dismissed.

The applicants sought to set aside an international commercial arbitration award arising from a failed commercial real estate relationship.

The court held that the arbitration agreement did not bar recourse under Article 34 of the Model Law where mandatory procedural protections and public policy were engaged.

The arbitral tribunal's undisclosed meeting with a prior adjudicator without notice to the parties breached the parties' arbitration agreement and met the threshold for potential relief under Article 34(2)(a)(iv).

However, weighing the seriousness of the breach against prejudice, waiver-related conduct, and the practical consequences of setting aside the award, the court exercised its discretion not to disturb the award.

The plaintiff sought judgment on two promissory notes arising from advances totalling $100,000.

The defendant admitted receiving the funds but argued they were an investment tied to the outcome of his dispute with the tax authorities and not yet payable.

The court held the promissory notes, drafted by the defendant's accountant and signed by the defendant, were the best evidence of the parties' agreement and established a promise to repay within 24 months.

Judgment was granted for $99,500, together with partial indemnity costs and pre-judgment interest at the default statutory rate after the initial two-year interest-free period.

This was a costs and terms endorsement following a partially successful duty to defend application.

The applicants obtained a duty to defend against three insurer respondents but were unsuccessful against the service provider respondents.

The court awarded costs to the applicants against each insurer respondent, awarded partial indemnity costs to the successful service provider respondents in reduced amounts where appropriate, and declined to make a Sanderson order or determine disputed supplementary payments coverage issues within the costs proceeding.

The court also ordered each insurer respondent to pay a share of defence costs already incurred in the underlying action, excluding adverse costs awards, and imposed terms governing the appointment and reporting obligations of independent counsel because of conflicts of interest.

Appeal from two Consent and Capacity Board decisions confirming involuntary status and treatment incapacity for a psychiatric patient.

The court held the involuntary admission appeal was moot after the appellant's discharge under a Community Treatment Order and declined to exercise discretion to hear it.

On the treatment incapacity appeal, the court applied the s. 4 Health Care Consent Act, 1996 test and found the Board's conclusion on the first branch was unreasonable, but upheld the second branch for antipsychotic and mood stabilizing treatment.

The appeal succeeded only in relation to benzodiazepines and related side effect medication and lab tests because the evidentiary record was insufficient, and that issue was remitted to the Board for re-hearing.

The plaintiffs, a wellness clinic and its co-founder, sued the defendant, the other co-founder and former director, for breach of fiduciary duty after he resigned and helped set up a competing clinic.

The court found that the defendant breached his fiduciary duties to the corporate plaintiff by taking company equipment and assisting a competitor while still owing duties to the company.

However, the court dismissed the claim that a fiduciary duty was owed to the individual plaintiff personally.

The court awarded the corporate plaintiff $12,600 in damages for the taken equipment and general restitution, but dismissed the claims for lost profits, loss of goodwill, and punitive damages due to lack of evidence.