Albert Gerrard Formosa

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.

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.

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.

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.

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.

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.

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.

The Moving Defendants brought a motion for summary judgment to dismiss tort claims by Correct Building Corporation (CBC) arising from an aborted development project.

CBC, a related corporate entity to Correct Group Inc. (CGI), was not a party to the preliminary agreement with the City of Barrie but anticipated being awarded the construction contract.

The court applied the *Cooper v. Hobart* test for duty of care, finding no reasonable foreseeability of harm or sufficient proximity between CBC and the Moving Defendants.

The court also cited policy reasons against extending a duty of care to potential subcontractors.

The motion was granted, and CBC's claims against the Moving Defendants were dismissed.

The defendant sought approximately $100,000 in costs on a full indemnity basis against the plaintiff and its lawyers following the dismissal of the action against it and the discharge of a certificate of pending litigation registered against property.

The court considered the principles governing costs under s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, including the high threshold for awarding elevated costs or personal costs against counsel.

The court held that although the defendant was successful, the plaintiff’s decision to include the defendant in the claim was reasonable given the timing of the mortgage transfers and allegations of misappropriation.

The plaintiff withdrew its claim promptly after receiving evidence establishing the legitimacy of the defendant’s mortgage interest.

Partial indemnity costs of $35,000 were awarded against the plaintiff, and the request for costs against the plaintiff’s lawyers was dismissed.

The plaintiff brought a motion to amend his amended Statement of Claim to add additional defendants, including all trustees or former trustees of a First Nation trust, the trust itself, and the Band Council.

The underlying action alleged breach of fiduciary duty, improper exercise of discretion, and conflict of interest arising from the denial of trust funding for the plaintiff’s business proposal.

The court held that the proposed amendments largely consisted of evidentiary material, repetitive or irrelevant allegations, and claims against entities not capable of being sued.

The court also found that the limitation period had expired for adding additional parties and that permitting the amendments would cause prejudice and further delay a long‑standing action already set down for trial.

The motion to amend was dismissed.

The defendant municipality moved to discharge a certificate of pending litigation registered by the plaintiff developer in an action seeking specific performance of a preliminary agreement for redevelopment and sale of municipal lands.

The court considered whether the plaintiff had a reasonable claim to an interest in land under s.103(6) of the Courts of Justice Act.

The court held that the preliminary agreement was not a binding contract because essential terms remained unsettled and the transaction depended on further agreements and negotiations, including participation by a third-party development partner that had withdrawn.

As the agreement was incapable of specific performance and the plaintiff therefore had no reasonable claim to an interest in land, the certificate of pending litigation was discharged.

The commercial tenant sought an interim and interlocutory injunction restraining the landlord from terminating the tenancy and re‑entering the premises.

The tenant argued it was an over‑holding tenant on a year‑to‑year tenancy and that the landlord’s notice to quit was invalid.

Applying the RJR‑MacDonald test, the court found a serious issue for trial regarding whether the tenancy was year‑to‑year or month‑to‑month.

The court accepted that immediate eviction would cause irreparable harm by forcing closure of the tenant’s long‑standing restaurant business and loss of employment for staff.

The balance of convenience favoured maintaining the status quo, and an interim injunction was granted with conditions requiring payment of rent and additional funds into court.