A. Duncan Grace

The plaintiff brought a motion to certify a proposed class proceeding for settlement purposes and to approve a settlement agreement with certain defendants alleged to have participated in a conspiracy to fix prices in the cathode ray tube (CRT) industry.

The settlement provided for a payment of $4.15 million and additional non‑monetary cooperation.

The court held that the action met the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 for settlement purposes and that the settlement was fair, reasonable, and in the best interests of the class.

The plaintiff also sought approval of contingency fees, disbursements, and taxes pursuant to the retainer agreement.

The court found the requested fees and disbursements reasonable given the complexity and risks of the litigation.

The applicant sought judicial interim release through a detention review under s. 520 of the Criminal Code after being held in custody for more than three years pending retrial on multiple violent and sexual offences.

The original bail decision denied release on secondary and tertiary grounds under s. 515(10).

The applicant argued that new sureties and a structured supervision plan constituted a material change in circumstances.

The court held that despite the proposed supervision plan and financial pledges by family members, the applicant’s extensive criminal record, repeated breaches of court orders, and the proposed sureties’ limited capacity to effectively supervise him continued to justify detention for the protection and safety of the public.

Detention remained justified on the secondary ground, though the tertiary ground alone would not have supported continued detention.

A contractor brought a construction lien action seeking payment of a final invoice for exterior renovation work on a condominium complex.

The property owner resisted payment and counterclaimed, alleging the contractor breached the contract by installing vinyl siding that was uneven and failed to comply with various industry standards.

The court considered whether additional contractual terms requiring compliance with installation guides and other standards should be implied into the contract.

It held that only limited implied terms applied, including that the work be performed in a workmanlike manner and comply with the Building Code.

While minor instances of non‑compliance with fastening requirements were proven, they caused no demonstrated loss and did not justify withholding payment or supporting the counterclaim.

The plaintiff finance company brought a motion without notice seeking an order authorizing a bailiff to seize leased trucks from the defendant lessee following alleged payment defaults.

The court scrutinized the request under Rule 44 of the Rules of Civil Procedure, the Personal Property Security Act, and the Courts of Justice Act.

The judge held that the motion improperly sought final relief without notice, failed to comply with Rule 44 requirements for interim recovery of personal property, and relied on a proceeding commenced by action when the statute required an application.

The materials also failed to address potential third‑party interests in the collateral and raised concerns about incomplete disclosure to the court in a without‑notice motion.

The court emphasized the high threshold for ex parte relief and the duty of full and frank disclosure.

The motion was dismissed without prejudice to the plaintiff commencing proper proceedings.

The applicant sought judicial review of a decision by the Deputy Registrar of Motor Vehicles suspending his driver’s licence under the Highway Traffic Act after he failed to complete required remedial driving lessons and a reassessment following concerns about his driving record and attention-related issues.

The court first granted leave under s. 6(2) of the Judicial Review Procedure Act due to urgency, finding that the suspension threatened the applicant’s livelihood as a self‑employed tow truck driver and delay before the Divisional Court could cause a failure of justice.

On the merits, the court held that the statutory scheme permitted the Deputy Registrar to require remedial lessons and a further driving assessment.

Applying a reasonableness standard of review, the court found the suspension justified given the applicant’s extensive accident history, the occupational therapist’s recommendations, and his withdrawal from the remedial program.

Technical defects in the Notice of Suspension, including reference to a repealed subsection, did not result in a miscarriage of justice.

In a medical negligence action, the court addressed how the trial should proceed where liability was to be determined by a jury but a limitations defence invoking the doctrine of special circumstances was to be decided by the judge alone.

The defendants argued that the jury must hear all evidence or that the jury notice should be struck, asserting that the evidence relating to liability and the limitation issue was intertwined.

The plaintiffs proposed limiting the jury’s exposure to evidence related to liability and having the limitation issue addressed separately.

The court held that under s. 108(3) of the Courts of Justice Act it could direct that certain issues of fact be tried without a jury.

The trial was ordered to proceed in two phases: a jury phase determining liability followed by a judge-alone phase addressing the limitation issue and related evidence.

A developer sued a municipality alleging breach of a supplementary subdivision agreement governing allocation of sewage capacity for a commercial and residential development.

The agreement provided that additional sewer capacity in the municipal system was reserved for the developer’s subdivision and that the municipality would not allocate capacity to lands outside the subdivision until the development was fully built out.

The municipality nevertheless allocated capacity to an adjacent development and expropriated a one‑foot reserve to allow connection.

The court interpreted the contractual language in light of the factual matrix and held the agreement granted the developer priority to available capacity.

The municipality breached the agreement by allocating capacity to the neighbouring development before completion of the subdivision.

The plaintiff proved loss‑of‑chance damages for lost leasing opportunities and was awarded compensatory damages, but punitive damages were denied.

Following a family law proceeding in which the parties resolved nearly all substantive issues through Minutes of Settlement, the court addressed the issue of costs.

The judge held that costs for earlier motions could not be determined by the trial judge because Rule 24(10) of the Family Law Rules requires the judge who heard the step to determine costs promptly after that step.

Given that the substantive issues were resolved through settlement and the record did not permit a clear determination of success by either party, the court declined to find either party more successful.

The court concluded the settlement represented a compromise and that determining a winner or loser would amount to speculation.

Each party was therefore ordered to bear their own costs.

The accused was charged with possession of cocaine for the purpose of trafficking after police recovered crack cocaine from a safe and a smaller quantity from a witness during a domestic incident investigation.

The Crown relied heavily on the evidence of a key witness who repeatedly recanted and altered her account of events, including statements to police, testimony at the preliminary inquiry, and testimony at trial.

The court found the witness unreliable due to significant inconsistencies and admissions of lying.

Although circumstantial evidence linked the accused to a safe containing cocaine, other individuals had access to the apartment and may have handled the safe.

The court held that the Crown failed to prove beyond a reasonable doubt that the accused had knowledge or control of the cocaine.

In a motor vehicle personal injury action, the defendants brought a motion requiring the plaintiff to attend a further independent medical examination by a psychiatrist after several prior defence examinations had already been conducted.

The defence argued the examination was necessary following a neuropsychologist’s suggestion that the plaintiff’s symptoms might reflect a conversion disorder.

The court held that the defendants already possessed extensive medical evidence from numerous specialists and that the proposed examination appeared aimed at developing a new diagnostic theory rather than responding to an issue requiring further investigation.

The evidentiary basis for the additional psychiatric examination was insufficient, and the request risked becoming a fishing expedition.

Given the number of prior examinations and the intrusive nature of another assessment, the motion was dismissed.

The applicant sought leave to appeal a carriage decision in competing securities class proceedings under the Class Proceedings Act, 1992.

A prior motion judge had granted carriage to one group of plaintiffs and stayed the applicant’s action after comparing factors such as causes of action, class definitions, representative plaintiffs, and litigation strategies.

The applicant argued the motion judge improperly conducted a substantive comparison of the competing theories and failed to give sufficient weight to factors such as conflicts of interest and retainer arrangements.

The court held that there was conflicting jurisprudence regarding the proper scope of analysis on carriage motions and that the issue warranted appellate clarification.

Leave to appeal was granted on the question of whether the motion judge erred in assessing the theories and attributes of the competing class actions and in determining carriage.

The applicant brought a motion seeking an order compelling pension administrators to comply with a prior consent order requiring transfer of one-half of the respondent’s pension as lump sum spousal support.

The administrators argued the order exceeded the court’s jurisdiction under the Pension Benefits Act as it existed prior to amendments that came into force on January 1, 2012.

The court reviewed the interaction between the Family Law Act support provisions and statutory restrictions on pension assignments, noting concerns that the consent order may have improperly attempted to divide pension property under the guise of support.

Given uncertainty regarding the remaining balance of lump sum support and the value of other transferred assets, the court declined to grant relief against the pension administrators on the existing record.

The applicant was permitted to supplement the record to establish any outstanding spousal support before further relief would be considered.

The proposed plaintiff sought pre-action disclosure of the Ontario Provincial Police investigative file relating to a serious motor vehicle collision in order to identify potential defendants and assess liability before commencing a civil action.

The Ministry resisted disclosure on the basis that information had been withheld under the Freedom of Information and Protection of Privacy Act.

The court held that although the urgent motion procedure under the Rules of Civil Procedure was not available, equitable pre-action discovery in the nature of a Norwich order remained available.

Given the statutory obligation under the Highway Traffic Act to exchange identifying information following a collision and the potential relevance of the police file to determining liability and identifying parties, the court found the requested disclosure necessary and appropriate.

Production of the file was ordered subject to protections allowing redaction of unrelated information and safeguarding law enforcement interests.

Tobacco producers commenced a proposed class action alleging that federal and provincial governments failed to enforce tobacco taxation and excise legislation, allowing contraband tobacco markets to flourish and causing economic losses to lawful producers.

The plaintiffs advanced claims in misfeasance in public office and negligence, asserting that public officials deliberately failed to enforce statutory regimes to placate certain communities.

The defendants moved under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the amended statement of claim for disclosing no reasonable cause of action.

The court held that the pleading failed to allege the essential elements of misfeasance in public office, including deliberate unlawful conduct and bad faith by specific officials.

It further concluded that the statutory schemes governing tobacco regulation did not create a private law duty of care owed to tobacco producers and that recognizing such a duty would improperly subject government policy decisions to tort liability.

The amended statement of claim was struck and the action dismissed.

Following a jury verdict awarding damages for injuries sustained in a motorcycle accident caused by the defendant’s negligence, the court addressed costs.

The plaintiff sought substantial partial indemnity costs, while the defendant argued that settlement offers should shift costs after a certain date under Rule 49 of the Rules of Civil Procedure.

The court found that the defendant’s offers did not comply with the formal requirements of Rule 49.10 and declined to give them the requested cost consequences.

Applying the general rule that costs follow the event and considering the factors in Rule 57.01, the court awarded the plaintiff partial indemnity costs for the action.

The court dismissed both an application to set aside and an appeal from an accounting arbitration under an asset purchase agreement.

The moving party argued the arbitrator exceeded jurisdiction and made manifest errors by quantifying deferred-revenue adjustments without independent expert evidence.

The court held the arbitration agreement and engagement letter authorized determination and quantification of disputed deferred-revenue items, and that the award reflected a factually grounded analysis of known costs and contingency risk allocations.

The high threshold for court intervention was not met.

The father brought a motion to change seeking unsupervised access and a finding of contempt against the mother for allegedly failing to facilitate supervised access ordered on an interim basis.

The court held that contempt was not established because the evidentiary record did not demonstrate deliberate and wilful disobedience of the order beyond a reasonable doubt.

The court emphasized that custodial parents have a positive obligation to encourage access and criticized conduct that left the burden of persuading the child to attend visits on the supervisor.

The mother’s motion to vary the order to make the child’s attendance entirely voluntary was dismissed, while the existing order requiring supervised visits remained in force.

The court also authorized electronic communication between the father and the children subject to preservation and disclosure of the messages to the access supervisor.

Following a civil trial, the court addressed the issue of costs where the plaintiff achieved only modest recovery exceeding the Small Claims Court jurisdiction.

The defendants had failed to fulfill settlement obligations, engaged in obstructionist conduct during the litigation, and contributed significantly to the continuation and length of the proceedings.

However, the court found the plaintiff’s litigation strategy unfocused and excessively costly, contributing to unnecessary complexity and expense.

Balancing these factors under the Rules of Civil Procedure, including Rule 57.05(1), the court exercised its discretion to award reduced costs rather than the full amount sought.

The defendants were ordered jointly and severally to pay a lump sum costs award.

Insurers disputed responsibility for satisfying a tort judgment arising from a fatal apartment fire.

One insurer had paid the balance of the judgment after the other insurer exhausted its primary policy limits and refused to contribute further pending resolution of a priority dispute.

The court held that liability of the building owner and property manager—treated as a single defendant in the underlying tort action—should be apportioned equally between them for indemnity purposes.

Applying principles analogous to Aetna Insurance Co. v. Canadian Surety Co. and restitutionary doctrines, the court concluded the paying insurer had overpaid and was entitled to reimbursement.

Judgment was granted requiring the responding insurer to reimburse the excess amount.

The plaintiff brought a civil action arising from real estate transactions involving two properties and agreements with a development company.

The court considered whether an agreement relating to the plaintiff’s interest in one property had been fulfilled and whether the defendant corporation was obligated to indemnify the plaintiff for liabilities arising from a mortgage and overdraft related to another property held in trust.

The court held that claims relating to the first property were barred by the Limitations Act, 2002 and failed.

However, the court found the plaintiff held the second property as bare trustee for the corporate defendant pursuant to a declaration of trust containing an indemnity clause.

The corporate defendant was therefore liable to indemnify the plaintiff for payments made toward a deficiency judgment and overdraft judgment arising from the mortgage obligations.