Alan S. Cofman

The plaintiff sold seeds for the defendant for 19 years, receiving monthly commission advances.

When the defendant withheld an advance due to accumulated deficits, the plaintiff claimed constructive dismissal.

The court found the plaintiff was a dependent contractor, not an employee, and was constructively dismissed, awarding damages based on a 21-month notice period.

However, the defendant counterclaimed for the accumulated deficits.

The court held the defendant was estopped from claiming deficits prior to the 2020-2021 season due to its silence, but allowed the counterclaim for the final year.

Setting off the amounts, the plaintiff was ordered to pay the defendant the net difference.

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.

Following a successful appeal that reversed a Small Claims Court decision for lack of monetary jurisdiction, the appellants sought costs of $19,016.45.

The respondent argued the amount was excessive.

The Divisional Court found the issues were of moderate complexity and fixed the appellants' costs at $5,000 inclusive for both the appeal and the Small Claims Court proceeding, noting the amount claimed in the underlying action was less than $70,000.

The appellants appealed a Small Claims Court decision awarding the respondent $35,000 for unpaid trailer fees under an agency agreement.

The respondent had sued for only three of seven outstanding invoices to stay within the Small Claims Court's monetary jurisdiction, intending to bring a second action for the remainder.

The Divisional Court held that the right to trailer fees flowed from a single contract, meaning the separate invoices did not constitute separate causes of action.

By splitting the claim to fit within the monetary limit without waiving the excess, the respondent engaged in impermissible cause of action splitting.

The Divisional Court quashed the Small Claims Court decision as a nullity for lack of jurisdiction and ordered the matter to proceed as a Simplified Rules action in the Superior Court of Justice.

The appellant appealed an order striking out claims against individual defendants and allegations of fraud, malice, and bad faith against the corporate defendant.

The motion judge's order was silent on leave to amend.

During the appeal, the respondents conceded that the order did not bar the appellant from seeking leave to amend the statement of claim.

The Court of Appeal dismissed the appeal without costs and without prejudice to the appellant's right to bring a motion for leave to amend in the Superior Court.

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.

The applicant, a waterski school operating on Puslinch Lake, sought judicial review of a Navigation Protection Program Officer's decision to deny approval for two of its three waterskiing courses under the Canadian Navigable Waters Act.

The Officer required the applicant to apply for approval after receiving anonymous complaints about the courses.

The Officer denied the applications based on safety and navigational concerns raised in public comments, without disclosing the substance of the complaints or the method used to calculate a required horizontal buffer zone to the applicant.

The Federal Court found that the Officer owed a duty of procedural fairness to the applicant, which was breached by failing to provide notice of the concerns and an opportunity to respond.

The Court granted the application for judicial review, quashed the decisions, and remitted the matters for redetermination.

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.

The moving party brought a motion for leave to appeal from an order of Kurz J. dated December 10, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $3,150 to the respondent.

The applicants, taxicab owners, sought judicial review of the City of Toronto's decision to cancel their Standard Taxicab Licences (STLs) unless they converted them to Toronto Taxicab Licences (TTLs) and made their vehicles wheelchair accessible.

The applicants had acquired their STLs under an interim court order during a challenge to a 2014 municipal by-law.

The Divisional Court found that the 2015 court decision resolving the by-law challenge upheld the mandatory conversion requirement upon sale.

The court rejected the applicants' arguments based on a subsequent 2016 by-law, estoppel, and procedural fairness, concluding that the City had provided adequate reasons and the applicants were bound by the conditions they accepted when purchasing their licences.

The application was dismissed.

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 appellants appealed a Master's decision dismissing their motion to stay their Ontario action against their insurer in favour of an arbitration in India.

The underlying dispute involved machinery damaged during transit.

The court dismissed the appeal, noting that the limitation period had expired and no arbitration had actually been commenced in India.

The Master was found to have applied the correct principles in refusing the stay.

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.

Following a train derailment and tankcar failure, the main action was settled.

The remaining parties brought summary judgment motions regarding third-party claims and contractual indemnity.

The court ruled that opinions in a Transportation Safety Board report are inadmissible, but factual observations are admissible.

The court also interpreted an indemnity clause under Illinois law, finding it did not require the lessee to indemnify the lessor for the lessor's own negligence.

Finally, the court granted summary judgment dismissing the third-party claim against the maintenance contractor, finding no evidence of a duty to inspect the failed welds and that the claims were barred by the US doctrine of preemption.