Albert Gerrard Formosa

The decision addresses a motion to amend the Statement of Claim in a civil action brought by Gurupdesh Pandher against the University of Windsor and several individuals.

The court considers whether the plaintiff may add Human Rights Code claims from prior HRTO applications, the addition of new defendants, the sufficiency of defamation pleadings, the scope of misfeasance in public office, the introduction of new human rights grounds, the effect of the collective agreement and labour arbitration, the use of documents subject to the deemed or implied undertaking rule, and the pleading of matters subject to settlement privilege.

The court grants some amendments, strikes others, and provides detailed directions for further pleadings.

The court addresses the issue of "costs thrown away" following the plaintiff's successful motion to amend his Statement of Claim to add Human Rights Code claims.

The court reviews the appropriate scale for such costs, the timing of the assessment, and the quantum to be awarded.

Ultimately, the court fixes the amount of costs thrown away at $52,549, payable by the plaintiff to the defendants, and provides detailed reasons for the calculation and allocation of these costs.

This decision concerns a motion for leave to appeal an order approving the sale of a property in receivership.

The moving parties, owners of the property, sought an adjournment to arrange financing to redeem the first mortgage and continue their affordable housing project.

The motion judge denied the adjournment and approved the sale.

On motion for leave to appeal, the Court of Appeal found that the proposed appeal did not raise issues of general importance, had little merit, and that granting leave would unduly hinder the receivership process.

The motion for leave to appeal was dismissed.

The decision addresses motions by the plaintiff to amend his Statement of Claim to add explicit human rights claims previously advanced before the Human Rights Tribunal of Ontario (HRTO), and to add two new defendants.

The court grants leave to amend to add the Code-related claims, finding that the amendments do not introduce new causes of action but rather new remedies arising from the same factual matrix.

The court denies leave to add new defendants, as claims against them are statute-barred.

The court also addresses costs thrown away on an abandoned injunction motion, awarding partial indemnity costs to the defendants.

The appellant sought to certify a class proceeding alleging a price-fixing conspiracy in the Canadian canned tuna market.

The motion judge dismissed the certification motion, finding a failure to plead material facts for a reasonable cause of action and an insufficient evidentiary basis for common issues.

The Court of Appeal upheld the dismissal, agreeing that the claim lacked material facts to support a Canadian conspiracy and that there was no sufficient factual basis for the proposed common issues, particularly given the distinct Canadian and U.S. tuna markets.

The court also confirmed its jurisdiction to hear the appeal, as the lower court's order effectively ended the proceeding.

During a trial regarding a commercial lease dispute, the plaintiff sought to introduce a 'With Prejudice' settlement offer it had previously served on the defendant.

The defendant objected to its admission on the basis of settlement privilege.

The court applied the three-part test for settlement privilege and held that the label 'With Prejudice' does not change the character of a communication made in furtherance of settlement.

The court ruled the offer was privileged and inadmissible under Rule 49.06 of the Rules of Civil Procedure.

The plaintiff brought a motion to certify two proposed class actions alleging a price-fixing conspiracy in the Canadian canned tuna market.

The plaintiff alleged that the defendants conspired to fix prices of canned tuna sold in Canada, relying on findings from US antitrust proceedings.

The court dismissed the certification motion, finding no basis in fact that the alleged conspiracy existed in Canada.

The court held that the plaintiff failed to satisfy the cause of action, common issues, and preferable procedure criteria, as the market structure and participants in Canada were different from those in the US, and the plaintiff's expert evidence was based on incorrect factual assumptions.

The Ministry terminated the respondent contractor's right to work on a dam project and subsequently barred the contractor from bidding on Ministry projects for two years.

The contractor initiated arbitration for several claims under the dam contract, including a claim for damages related to the bidding disqualification (Claim #7).

The arbitrator ruled he had jurisdiction over Claim #7.

The Ministry applied to the Superior Court for a de novo determination of jurisdiction.

The court held that Claim #7 was not arbitrable because it related to decisions made outside the scope of the dam contract's arbitration provision, which was limited to claims arising out of the performance of that specific contract.

The appellant sought a 90-day extension of time to perfect its appeal of a summary judgment dismissing its action against the City of Barrie and individual respondents.

A motion judge granted the extension for the City but denied it for the individuals.

On review, the Court of Appeal found the motion judge erred by misapprehending the appeal's potential merit and failing to apply the principle that a party should not be deprived of their right to appeal without real prejudice.

The panel set aside the motion judge's order and granted the extension for the appeal against all respondents.

This endorsement addresses the costs arising from successful summary judgment motions brought by the defendants, Jeffrey Lehman et al. and the Corporation of the City of Barrie, against Correct Building Corporation and Correct Group Inc. The court awarded substantial indemnity costs to the individual defendants, finding the claims against them frivolous, baseless, and an abuse of process.

Partial indemnity costs were awarded to the City of Barrie, with a reduction for an abandoned counterclaim and an unrecoverable disbursement for an unproduced expert report.

The total costs awarded were $1,066,412.62.

The University of Windsor brought a motion for a publication ban and sealing order in an application for judicial review of a university adjudicator's decision finding the applicant committed sexual assault.

The motion sought to protect the identity of the complainant and other individuals who made complaints.

Applying the test from Sherman Estate, the court granted the publication ban and a modified sealing order, finding that court openness posed a serious risk to the important public interest of preserving the dignity of sexual assault complainants.

This appeal concerned an actionable encroachment on an easement.

The appellants built a swimming pool and amenities over a ten-foot strip of land subject to an easement held by the respondents, which prohibited the erection of any building or structure.

The application judge found an actionable encroachment and ordered removal.

The appellants appealed, arguing the easement was not intended to prohibit such structures, that the 'substantial interference' test was misapplied, and that the easement was abandoned or proprietary estoppel applied.

The Court of Appeal dismissed the appeal, affirming that the express prohibition in the easement constituted an actionable encroachment, and rejected arguments of abandonment or proprietary estoppel.

This endorsement addresses the issue of costs following a successful application by the Town of Oakville and Oakville Hydro Electricity Distribution Inc. (Applicants) for a declaration that the Respondents' pool amenities encroached upon a hydro easement.

The Applicants sought costs on a partial indemnity scale totaling $77,782.87.

The Respondents argued for a reduction to a maximum of $50,000.

The court awarded the Applicants $50,000 in costs, finding a reduction warranted due to the Applicants' partial success on the underlying application (only one of two bases for relief was granted) and their unreasonable refusal to consent to legitimate adjournment requests.

The applicants sought a declaration and injunction compelling the respondents to remove pool amenities encroaching on a hydro easement.

The court found that the easement explicitly prohibited the erection of any building or structure, regardless of whether it caused substantial interference.

The respondents' arguments of proprietary estoppel and lack of substantial interference were rejected.

The application was granted, ordering the removal of the amenities and remediation of the easement.

The appellants appealed a motion judge's order setting aside a default judgment and awarding partial indemnity costs to the respondents.

The underlying action involved a nuisance claim regarding property interference.

The Divisional Court reviewed the motion judge's application of the five-part test for setting aside default judgments and found no error in principle or palpable and overriding error in her discretionary decision.

The appeal was dismissed, and the appellants were ordered to pay the respondents' costs of the appeal.

An employee with approximately 30 years of continuous service was dismissed without cause from part-time employment.

The employer relied on a written employment agreement purporting to waive the employee's years of service and common law entitlement to reasonable notice, providing only statutory minimums under the Employment Standards Act.

The motion judge found the employee had not waived his years of service for statutory purposes but was bound by a 2006 waiver of common law notice entitlements.

The Court of Appeal upheld this decision, finding the waiver was clear and unequivocal, the 2013 transition to part-time employment constituted an amendment rather than a new contract, and there was adequate consideration for the amendments.

The court also rejected the employer's cross-appeal on mitigation, finding the employee had made reasonable efforts to secure comparable employment.

This case involved consolidated applications seeking declaratory relief regarding lease renewal options.

Brewers Retail Inc. (Landlord) and Hasty Market Corp. (Tenant) disputed the number of five-year renewal options granted in a 2009 lease renewal, with the Tenant asserting two options and the Landlord one.

The Tenant also raised promissory estoppel.

The court found that the agreement unambiguously provided for only one five-year renewal option, not two, based on the written record and the Landlord's waiver letter.

The court also dismissed the promissory estoppel claim, concluding that no unambiguous promise was made by the Landlord and the Tenant failed to establish detrimental reliance.

Promissory estoppel was deemed inapplicable to create new rights not agreed upon.

The defendants brought a motion to set aside a default judgment that had granted injunctive relief, damages, and costs to the plaintiffs, and sought the return of their seized motor vehicle.

The court applied the three-part test for setting aside default judgment, finding that the motion was brought promptly after the defendants learned of the judgment (upon seizure of their truck).

The default was adequately explained by the defendants' limited education, their inability to understand legal documents, and their financial inability to retain counsel after being denied legal aid.

Furthermore, the defendants presented an arguable defence on the merits regarding disputes over a shared laneway, wood smoke, and water discharge.

The court concluded that significant prejudice would result to the defendants if the judgment stood and that allowing it to stand would bring the administration of justice into disrepute.

The motion was granted, the default judgment set aside, and the vehicle ordered returned.

Following a summary judgment motion in a wrongful dismissal action where success was divided, the court determined costs.

Although the plaintiff was successful on two of three critical issues, the monetary result was less favourable than the defendant's offer to settle.

Applying Rule 49.10(2), the court awarded the plaintiff partial indemnity costs up to the date of the offer, and the defendant partial indemnity costs thereafter, resulting in a net costs award of $20,390 payable by the plaintiff to the defendant.

The appellants, a developer, appealed from a summary judgment that dismissed claims for conspiracy and negligent and fraudulent misrepresentation against appraisers, and ordered a mini-trial on claims of negligence, inducing breach of contract, and intentional interference with economic relations.

The Court of Appeal upheld the dismissal of the conspiracy and misrepresentation claims, finding no reasonable reliance and no evidence of conspiracy.

The court also set aside the mini-trial order and dismissed the remaining claims, finding they had no possibility of success due to lack of reliance, absence of unlawful conduct, and expiration of the limitation period.