Alan S. Cofman

The court considered whether to convert an application regarding the enforcement of promissory notes and a shareholder loan between family members and a family business into an action.

The applicant, Hossein Jalilnattajamiri, sought payment under two promissory notes from the respondents, Mahmoud Jalilnattajamiri and Fouka Furniture Inc. The respondents alleged misrepresentation and mismanagement by the applicant, raising complex factual and credibility issues.

The court found that the matter required a full trial due to the complexity and conflicting evidence, and ordered the application be converted to an action.

The Superintendent of Private Career Colleges sought a restraining order against Island Air Flight School & Charters Inc. for allegedly operating as an unregistered private career college and offering vocational programs in contravention of the Private Career Colleges Act, 2005.

The court found that Island Air did violate the Act by providing vocational training until August 2019, but not thereafter.

The court declined to issue a restraining order, exercising its discretion based on the lack of reasonable grounds to believe future violations would occur, the absence of public safety or significant consumer protection concerns, and the availability of adequate alternative remedies under the Act.

The plaintiff, 2770095 Ontario Inc., brought a motion to set aside a prior decision dismissing its action as an abuse of process due to a champertous agreement, and to substitute Affinitas Medios de Pago S.A.P.I de C.V. as the plaintiff.

The court dismissed the motion, holding that its discretion to alter a judgment before entry is limited to technical corrections or preventing a miscarriage of justice.

The requested change was not technical, and no miscarriage of justice would occur, especially since the plaintiff had ample opportunity to amend its pleadings earlier and could still commence a new action.

Granting the relief would bring the administration of justice into disrepute given the plaintiff's prior abuse of process.

The plaintiff, R-J Machinery Inc., sought judgment for additional charges incurred in supplying and modifying an automated machine for the defendant, Exel Canada Inc. Exel counterclaimed for damages, alleging the machine was not fit for purpose or of merchantable quality.

The court found that the machine was designed and built to specifications based on samples provided by Exel, and that subsequent performance issues were caused by Exel's use of irregular and warped components, contrary to the contract's express terms.

The court determined that Exel had agreed to pay for the necessary modifications on a time and material basis.

Consequently, the plaintiff's claim for payment was largely granted, and the defendant's counterclaim for breach of warranty was dismissed.

The plaintiff, 2770095 Ontario Inc., a special purpose vehicle incorporated one day before the assignment, brought an action to recover over $1 million in alleged missing funds from payment processing, assigned from Affinitas Medios de Pago S.A.P.I de C.V. The defendants, Maxwell Dean Morgan and Tricia Edwards, moved to dismiss the action, arguing the assignment was invalid due to champerty and maintenance.

The court found that the assignment of tort claims was champertous, as the plaintiff had no pre-existing commercial or financial interest in the litigation and was created solely to pursue the claim for profit.

The court dismissed the action as an abuse of process and set aside all interim and interlocutory orders, including Mareva injunctions and certificates of pending litigation.

The Plaintiffs, Rooney Luh and Jae Luh Holdings, Inc., brought a motion to strike the Defendants' (Ralph Di Pietro, Deborah Di Pietro, and Lancaster Custom Cabinets & Closets Inc.) Counterclaim under Rule 25.11 and sought a separate trial.

The Defendants brought a cross-motion for leave to amend their Statement of Defence and Counterclaim, including adding six new parties as Defendants by Counterclaim.

The court dismissed the Plaintiffs' motion to strike and their request for a separate trial, finding that the Defendants' proposed amendments were legally tenable, disclosed a reasonable cause of action, and did not cause non-compensable prejudice or undue delay.

The court granted the Defendants leave to amend their pleadings, emphasizing the interconnectedness of the claims and parties, and imposed a timetable for discoveries.

Following the dismissal of the defendants' motions for summary judgment regarding a prefabricated building dispute, the parties could not agree on costs.

The plaintiff sought $50,000 in elevated costs or $40,000 on a partial indemnity basis.

The court found no basis for elevated costs but awarded the plaintiff partial indemnity costs.

Noting some excessiveness in the plaintiff's use of two lawyers, the court fixed the costs at $33,000, inclusive of disbursements, to be paid equally by the defendants, and ordered a case conference to manage outstanding issues.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action regarding the defective construction of a storage building.

The defendants argued they owed no duty of care because they followed the plaintiff's specifications for ventilation, and that the action was statute-barred.

The court dismissed the motion, finding the defendants failed to meet their evidentiary burden to show there was no genuine issue requiring a trial regarding their duty of care and reliance.

The court also found the evidence did not establish the claim was discovered outside the two-year limitation period.

A trucking company sought declaratory relief from its insurer regarding coverage for stolen cargo in the absence of an underlying claim from the customer.

The insurer denied coverage citing misrepresentation regarding cargo type and lack of custody.

The application judge made declarations of fact addressing the insurer's two grounds for denial but declined to declare an obligation to indemnify.

The Court of Appeal allowed the appeal, finding that declaratory relief was improper in the absence of a real dispute and that the application judge erred by making findings of fact detached from rights of the parties.

The court ordered consolidation of the application with the subsequent action commenced by the trucking company.

The defendants moved for security for costs against the corporate plaintiff under Rule 56.01(1), alleging insufficient assets in Ontario.

The plaintiff, while not claiming impecuniosity, argued that its financial state was caused by the defendants' alleged wrongful conduct and that its claim had a good chance of success.

The court found the merits of the case to be neutral for the purpose of the motion and determined that the plaintiff failed to demonstrate insufficient assets to post security.

The motion was granted, and the plaintiff was ordered to post security for incurred costs and future discovery costs.

Costs of the motion were awarded to the defendants.

The plaintiff brought a motion seeking an order to exclude co-defendants from attending each other's examinations for discovery or reviewing their transcripts, arguing it was necessary to prevent the tailoring of evidence, particularly given the anticipated credibility issues.

The court considered factors such as common interests, common counsel, the scope of examinations, and the centrality of credibility.

While acknowledging credibility would be an issue, the court found that the plaintiff failed to demonstrate a real and substantial probability that the discovery process would be compromised.

This was especially true given that two key defendants had already been extensively cross-examined on substantive affidavits without any evidence of tailoring or parroting, and their co-parties had access to these transcripts.

The motion for an exclusion order was dismissed, and the defendants were awarded partial indemnity costs.

The plaintiffs, ATS Automation Tooling Systems Inc. and IWK (Thailand) Ltd., brought a motion to temporarily stay their action against Chubb Insurance Company of Canada.

The action concerned insurance coverage for damaged medical packaging equipment shipped from Thailand to India.

The plaintiffs sought the stay pending the final resolution of related arbitral proceedings in India, arguing that the issues were intertwined and a stay would prevent prejudice and promote efficiency.

Chubb opposed the stay, asserting it had no standing in the Indian arbitration, that the plaintiffs had suffered no insurable loss under the policy (which only covered ocean carriage to Chennai, not inland transit), and that the action was a placeholder.

The court refused the stay, finding that the interpretation of the Chubb policy was irrelevant to the Indian arbitration, that there was no certainty of the arbitration proceeding, and that delaying Chubb's opportunity to seek summary judgment would cause prejudice.

The court emphasized the principles of proportionality, timeliness, and affordability in civil litigation, as articulated in Hryniak v. Mauldin.

The applicants, members of a church congregation, brought a motion to strike portions of affidavits filed by the respondent directors and other congregation members in an underlying application.

The application seeks to determine corporate membership, election of directors, and leave for a derivative action against current directors of Kingdom of Heaven Embassy Ministries Inc. The court considered Rules 25.11 and 39.01(5) of the Rules of Civil Procedure.

The court granted the motion in part, striking numerous paragraphs from the respondents' affidavits that were deemed irrelevant, scandalous, or vexatious, particularly those impugning the character or conduct of the former pastor, Mr. Somers.

Leave was granted for the respondents to file amended affidavits.

The applicant trucking company sought declarations of insurance coverage after its cargo of electronic goods was stolen.

The respondent insurer denied the claim on two grounds: that the goods were not in the applicant's custody and that the applicant misrepresented the type of cargo.

The court rejected both grounds, finding that the goods were covered under the policy and that no material misrepresentation occurred.

However, the court declined to order a specific indemnity amount due to the claim value not being crystallized, instead issuing declarations in the applicant's favour.

Costs were awarded to the applicant on a modest scale.

The Acuity defendants moved for summary judgment in a fire loss claim, arguing no causal connection could be proven between the fire and their light fixtures.

The plaintiff alleged a design defect in the open luminaires led to a metal halide bulb rupture, igniting a tarp.

The court found a genuine issue requiring a trial on causation, noting conflicting expert evidence and deficiencies in the initial fire investigation due to premature site clearance.

The motion for summary judgment was not granted, but the court directed further oral evidence to be adduced on the causation issue to potentially streamline the lengthy and expensive litigation.

The Acuity defendants moved for summary judgment and sought to exclude the plaintiff's expert evidence from Vincent Rochon regarding the origin and cause of a warehouse fire.

The defendants argued Rochon was not qualified to opine on electrical code/CSA standards, lacked independence and impartiality due to his prior involvement with the insurer's sister company (REI) and the initial site investigation, showed bias, and presented an unreliable "novel science" theory (ricocheting quartz fragments).

The court found Rochon qualified, willing, and able to fulfill his duty as an expert, and that his ricochet theory was not "novel science" but an application of existing scientific principles.

The motion to exclude Rochon's evidence was dismissed, with the court noting that concerns about the investigation's shortcomings or the plausibility of Rochon's theory could inform the weight of the evidence at the summary judgment motion or trial.

Following earlier litigation involving the issuance of Notices of Prohibition by the Ministry, the successful party sought costs for multiple court attendances.

The court held that although costs were not specifically addressed at earlier hearings, they were necessary steps in the litigation and the successful party was entitled to recover costs.

The judge expressed concern that the ministry refused to hold its Notices of Prohibition in abeyance to allow an orderly hearing and indicated that substantial indemnity costs might otherwise have been appropriate.

However, due to deficiencies in the bill of costs and excessive hours claimed for research, the court reduced the hours and awarded partial indemnity costs.

Final costs were fixed at $45,076.33 inclusive of disbursements and HST.

The applicant supermarket owner sought judicial review of an automatic prohibition issued under the Smoke-Free Ontario Act after employees were convicted of selling tobacco to minors.

The prohibition barred the store from selling tobacco products for nine months based solely on employee convictions, even though the employer had never been charged and had no opportunity to assert the statutory due diligence defence available to owners.

The court found that the Ministry’s notice process, information system, and decision-making framework failed to provide adequate notice or a meaningful opportunity for the employer to present a defence.

Because the administrative system did not record or consider whether the employer had exercised due diligence, the issuance of the prohibition violated procedural fairness and frustrated the statutory scheme.

The notice of prohibition was quashed.

The plaintiffs moved for consolidation of two franchise-related actions and for a trial together with a third action involving prior franchisees of the same restaurant.

The claims arose from alleged deficiencies in disclosure under the Arthur Wishart (Franchise Disclosure), 2000 Act in connection with the purchase and resale of the same Lick’s restaurant franchise.

The court held that the two actions involving the same plaintiffs and transaction should be consolidated because they shared common questions of fact and law and arose from the same purchase.

Applying Rule 6.01 of the Rules of Civil Procedure and factors governing trial together orders, the court also directed that the consolidated action be tried together with the earlier action involving prior franchisees due to overlapping evidence, witnesses, valuation issues, and risk of inconsistent findings.

The court further ordered common documentary and oral discovery, common mediation, and assigned the actions to case management.