William M. LeMay

The applicant sought judicial review (treated as an appeal) of a Law Society Appeal Panel decision that upheld findings of professional misconduct and a penalty of suspension and practice restrictions.

The applicant argued the panel erred in denying disclosure of certain investigation files, ignoring evidence, and imposing an unreasonable penalty, and also raised a new issue of delay.

The Divisional Court dismissed the appeal, finding the Appeal Panel's decisions on disclosure and factual findings were reasonable, declining to hear the new issue of delay due to an insufficient record, and concluding the penalty was reasonable and entitled to deference.

The appellant appealed a summary judgment dismissing his action for $1,000,000.

The Divisional Court noted it lacked jurisdiction under s. 19(1.2)(c) of the Courts of Justice Act, which limits its jurisdiction to dismissals of claims not exceeding $50,000.

The appellant requested a transfer to the Court of Appeal.

The court declined to transfer the matter, finding the appeal had no merit, and dismissed the appeal with costs.

The appellant appealed a decision ordering her to pay the respondent physiotherapy clinic for unpaid treatment accounts out of her motor vehicle accident settlement.

The appellant argued the matter should have proceeded as an action rather than an application, challenged the factual findings, and argued the interest rate violated the Interest Act.

The Divisional Court dismissed the appeal, finding that the procedural and interest arguments were improperly raised for the first time on appeal.

Furthermore, the court found no material facts in dispute and held that the Interest Act did not apply because the interest rate was governed by the Statutory Accident Benefits Schedule.

This endorsement resolves five outstanding issues between the parties following a prior judgment (2017 ONSC 5680).

The court determined that the quantum of the judgment should not be deferred despite ongoing related proceedings, that simple interest applies to the loan amounts, and accepted the defendants' position on pre-judgment interest for the deposit.

The court also affirmed that Tzimas J. remains the case management judge for outstanding cross-claims and lease issues, and ordered the Certificate of Pending Litigation (CPL) to be removed at the plaintiffs' expense.

The court determined costs for two motions: a motion to transfer an action from Thunder Bay to Milton, and a cross-motion to stay an action in Milton based on a jurisdiction clause.

Both original motions were dismissed.

For the motion to stay, no costs were awarded, as the delays were attributed to the Property Owners' (Superior Fine Papers Inc., Reliance Holdings Limited, and Reliance Developments Corporation) conduct.

For the motion to transfer, the Property Owners were ordered to pay partial indemnity costs of $7,000 to Terrapure Environmental (Revolution Environmental Solutions LP c.o.b. as Terrapure Environmental and Revolution Environmental Solutions Acquisition GP Inc.), due to their unsuccessful motion and conduct that unnecessarily lengthened proceedings.

The accused was charged with sexual assault and sexual exploitation involving a young person with whom he lived.

The court assessed the credibility of the complainant and the accused, noting significant inconsistencies in the complainant's statements to police and during testimony, as well as a potential motive to fabricate.

While DNA evidence of the accused's semen was found on the complainant's underwear, expert testimony could not rule out transference from other clothing in a communal laundry basket.

The court found the accused's testimony to be tailored to minimize his authority and contact with the complainant, but ultimately concluded that the evidence, when considered holistically, left a reasonable doubt on both charges.

The accused was found not guilty.

The client brought a motion to permanently stay the assessment of its former solicitor's accounts, alleging the solicitor intentionally deleted relevant electronic files from her laptop in breach of a preservation order.

The court found that the allegations involved significant credibility issues and conflicting expert evidence regarding the spoliation of evidence.

Applying principles analogous to summary judgment, the court concluded that a stay was a draconian remedy that could not be granted without a full hearing with viva voce evidence.

The motion was dismissed without prejudice to the client's right to renew the arguments at a full hearing before a Superior Court judge.

The Property Owners brought a motion to transfer a construction lien action from Thunder Bay to Milton and to have it heard together with a related breach of contract action.

The defendant, Newalta, brought a motion to stay the breach of contract action based on a forum selection clause specifying Alberta jurisdiction.

The court dismissed Newalta's motion for a stay, finding that although the forum selection clause was valid, the interests of justice and avoidance of multiple proceedings constituted strong cause not to enforce it.

The court also dismissed the Property Owners' motion to transfer the construction lien action, finding that Thunder Bay was the more appropriate venue given the location of the property, the events, and the witnesses.

The issue of whether the actions should be heard together was deferred to the Regional Senior Justice of the Northwest Region.

The defendants brought a motion to transfer the action from Hamilton to Walkerton, arguing that a fair trial could not be held in Hamilton due to the prominent philanthropic profile of the plaintiff's principal.

The court rejected this argument, finding no reasonable apprehension of bias among the Hamilton judiciary.

The court deferred deciding whether a transfer was desirable in the interests of justice under Rule 13.1.02(2)(b) until a pending motion to set aside a default judgment in the action is resolved.

The plaintiff brought a motion for summary judgment for unpaid invoices relating to custom millwork installed in two homes renovated by the defendants.

The court found summary judgment appropriate for part of the claim, awarding the plaintiff damages for work actually delivered, less a set-off for conceded deficiencies.

The court dismissed the remainder of the claim for undelivered work due to the plaintiff's failure to provide evidence of its actual damages or costs incurred.

The issue of whether a trust was created under the Construction Lien Act from the sale proceeds of the homes was directed to a mini-trial due to insufficient evidence on the record.

During a trial for sexual assault, the defence brought a Corbett application to exclude portions of the accused's criminal record if he chose to testify.

The accused had a lengthy record including youth offences, robberies, assaults, and a prior sexual assault and forcible confinement.

The court allowed the application in part.

Convictions for assault, assault causing bodily harm, sexual assault, and forcible confinement were excluded due to their prejudicial effect and risk of propensity reasoning.

However, convictions for robbery and other offences involving dishonesty were permitted to remain on the record as they were relevant to the accused's credibility.

The Crown brought a pre-trial evidentiary motion seeking admission of prior-conviction evidence as similar fact evidence in a jury trial on sexual assault and forcible confinement charges.

Applying the governing framework for similar fact evidence, the court held the prior incident was supported by strong proof because it resulted in a conviction, but the similarities between the prior events and the charged offences were largely generic and the differences were significant.

The court found the probative value to be only moderate and outweighed by both moral and reasoning prejudice, particularly given the repugnant nature of the prior misconduct.

The motion to admit the prior-incident evidence was dismissed, while similar fact use between the counts on the indictment was ordered on consent.

The Crown sought to call an expert witness to testify on the neurobiology of trauma and the psychological and sociological responses of victims to sexual assault.

The accused was charged with sexual assault and forcible confinement.

The proposed expert evidence aimed to explain the complainant's behavior during and after the alleged assaults, including delayed reporting and memory issues.

The court applied the Mohan framework and found that while the evidence was logically relevant, its prejudicial effect outweighed its probative value.

The court noted concerns with the expert's lack of primary research, potential partiality, and the risk that the jury might use the evidence to improperly assess the complainant's credibility.

The motion to admit the expert evidence was denied.

The plaintiffs entered into a complex series of agreements to purchase a commercial property from the defendants.

The plaintiffs advanced approximately $2 million to the defendants prior to closing.

The transaction failed to close on the extended closing date of September 18, 2015.

The court found that neither party was ready, willing, and able to close on that date, as the plaintiffs lacked financing and the defendants' tender was deficient.

The court determined that $1,735,000 of the advanced funds was a loan bearing 12% interest, for which the individual defendants were jointly and severally liable, and the remaining $225,000 was a deposit.

The court ordered the return of all funds to the plaintiffs, lifted the certificate of pending litigation, and dismissed the defendants' counterclaim for damages.

The plaintiff brought a motion under Rule 25.11 to strike paragraphs from the defendants' amended statement of defence, arguing they were irrelevant and would delay the trial.

The court dismissed the motion, finding the impugned paragraphs were directly responsive to the statement of claim and arguably relevant to the issues of conspiracy and constructive dismissal.

Additionally, the court awarded $500 in costs to the self-represented defendants for a prior motion regarding document privilege, finding they had demonstrated an opportunity cost.

The accused, charged with drug offences, brought a motion for production of information relating to a confidential informant and the Information to Obtain a search warrant, ahead of a planned Garofoli application.

The accused sought source handler notes and other documents, and requested to cross-examine the affiant.

The court dismissed the motion, finding the request to cross-examine premature and holding that the accused failed to provide any factual foundation to justify disclosure of materials outside the investigative file.

In a final decision following a family law trial, the court determined the ongoing calculation of child support.

The applicant sought to impute income to the respondent for a period of unemployment.

The court held that a material change in circumstances was not required to adjust support because no final order had been made.

The court declined to impute income, finding the respondent was not intentionally underemployed and had conducted an extensive job search.

Ongoing support was set based on the respondent's new employment income.

Following the dismissal of the applicant's motion for a capacity assessment of his mother, the successful respondents sought substantial indemnity costs of approximately $115,000 based on Rule 49 offers to settle.

The court held that Rule 49.10 does not apply to award substantial indemnity costs when a plaintiff's claim fails entirely.

Applying the factors under Rule 57.01, the court found the time spent by the respondents' counsel was excessive and not proportional to the straightforward nature of the issues.

Costs were fixed at $25,000 for the respondent mother and $10,000 for the respondent attorneys.

Following a six-day trial regarding property ownership, the applicant sought costs of $44,227.35.

The court found the applicant was the successful party, having obtained half the property as requested.

The applicant's offer to settle was more favourable than the trial outcome, entitling him to full recovery of costs from the date of the offer under Rule 18(14) of the Family Law Rules.

While the respondent's conduct was unreasonable, it did not meet the high threshold for bad faith.

The court fixed costs payable to the applicant at $37,500 inclusive of HST and disbursements.

This is a costs endorsement following a three-week jury trial for damages arising from a motor vehicle accident.

The plaintiffs, Satish and Sharoj Sharma, were awarded nominal damages ($500 total) which were largely eliminated by statutory deductibles.

The court was tasked with fixing costs for the action.

The defendant, Jesse Stewart, sought costs, arguing success on the key issues and that the trial was unnecessarily lengthened by the plaintiffs' counsel's conduct.

The plaintiffs sought full or partial indemnity costs, or alternatively, no costs, citing their alleged impecuniosity.

The court found the plaintiffs were largely unsuccessful, treating the jury's award as $0 for costs purposes due to the deductibles.

The defendant's reasonable offers to settle, which were not accepted, further supported a costs award against the plaintiffs.

The court also considered instances of plaintiffs' counsel's conduct that unnecessarily lengthened the trial.

The plaintiffs' claim of impecuniosity was not given weight due to insufficient evidence and the existence of costs insurance.

The court awarded the defendant $65,000 in legal fees plus HST, $64,638.04 in disbursements (after reductions for unreasonable expert fees and mediation costs), and $1,321.17 for a mid-trial motion, totaling $139,409.21.