Albert Gerrard Formosa

The moving party, Novus, sought an urgent stay pending an application for leave to appeal an interim injunction order that required it to shut down its call-centre business and transfer it to the respondent, WorldCare.

The underlying dispute involved a contract for call-centre services where WorldCare attempted to drastically reduce the price paid to Novus, leading to alleged termination and disputes over the handling of confidential health information.

The court found there were serious issues for leave to appeal, including conflicting decisions on arbitration statutes and the standard for irreparable harm.

Concluding that the balance of convenience favored maintaining the status quo to prevent the destruction of Novus's business line, the court granted a brief stay until the Divisional Court could determine the leave to appeal application.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing his discrimination claim against a university and a department chair.

The Tribunal had dismissed the application because it was filed more than one year after the last incident of alleged discrimination, which it determined was the date the applicant was asked to withdraw for academic reasons.

The Divisional Court found the Tribunal's decision to dismiss the application as untimely was reasonable and dismissed the application for judicial review.

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 appellant estate trustee appealed a Master's order dismissing a motion to withdraw admissions regarding property ownership and to consolidate three related proceedings.

The Divisional Court upheld the Master's decision, finding no reasonable explanation for the appellant's attempt to withdraw a clear admission made over a year after a consent order for the sale of the property.

The court also agreed that consolidating the proceedings would contradict the prior consent order and increase complexity.

The appeal was dismissed with costs.

In this costs decision following an urgent injunction motion and a successful application, the moving party sought partial indemnity costs for both proceedings.

The court held that costs followed the event and accepted that the moving party was substantially successful on the injunction motion and entirely successful on the application.

Applying the proportionality and fairness principles under rule 57.01 and s. 131 of the Courts of Justice Act, the court reduced the amounts claimed as excessive, particularly in light of duplication in the later application materials.

Costs were fixed at $15,000 for the injunction motion and $10,000 for the application, for a total award of $25,000.

The applicant, a non-share capital corporation, sought a declaration that a resolution proposed by its voting members to remove certain directors and amend its by-laws was unlawful.

The voting members had requisitioned a special meeting to pass the resolution following a governance review that alleged the directors were in a conflict of interest.

The court granted the application, finding that under the Corporations Act and the applicant's by-laws, the voting members did not have the authority to unilaterally amend the by-laws or reduce the number of directors.

Furthermore, the resolution to remove the directors failed to comply with the procedural fairness and conflict of interest provisions set out in the by-laws.

The estate trustee brought a motion seeking leave to withdraw admissions and amend a statement of claim relating to ownership of corporate shares and real property, and to consolidate three related proceedings.

The court applied Rule 26.01 of the Rules of Civil Procedure and the jurisprudence governing withdrawal of admissions under Rule 51.05.

It held that the moving party failed to establish a reasonable explanation for the change in position and failed to demonstrate absence of prejudice, particularly given a prior consent order directing sale of the property based on joint ownership.

The proposed amendments concerning the property were also found to constitute an abuse of process, and consolidation was refused because it would conflict with the existing reference process and increase procedural complexity.

The applicant applied for judicial review of an arbitrator's decision ordering the disclosure of contested documents.

The applicant argued it was denied procedural fairness because the arbitrator misunderstood its concession regarding the independence of a third party and failed to hold a hearing on the third party's neutrality.

The Divisional Court dismissed the application, finding no denial of procedural fairness as the distinction between neutrality and independence was mere wordsmithing.

The Court also upheld the arbitrator's jurisdiction to order disclosure, finding her interpretation of the grievance reasonable.

Following the dismissal of a motion for leave to appeal, the successful defendant sought costs on a partial indemnity basis.

The responding party conceded entitlement to costs but argued the amount claimed was excessive, particularly with respect to legal research disbursements.

Applying the fairness and reasonableness principles under Rule 57.01 of the Rules of Civil Procedure, the court assessed the competing submissions and fixed costs at an amount lower than requested but higher than the amount proposed by the responding party.

Costs were awarded on a partial indemnity basis.

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.

The appellant appealed a judgment on the basis that the motion judge erred in refusing to allow viva voce evidence.

The Court of Appeal dismissed the appeal, finding no error in the exercise of discretion given the history of delays by the appellant, indulgences granted, and prior notice given by a Master.

The court concluded there was no procedural unfairness or denial of natural justice.

The appellant landlord appealed a Tribunal decision finding bad faith in an eviction for the landlord's own use.

The Divisional Court dismissed the appeal, holding that the Tribunal's finding of bad faith and calculation of damages were questions of fact or mixed fact and law, and therefore not reviewable.

The Court also found that the absence of transcripts did not prejudice the appellant, distinguishing the case from precedent as there were no allegations of bias or procedural unfairness.

The appellant appealed a decision regarding the jurisdiction of the Superior Court over a claim involving a Band Council and declaratory relief.

During the appeal, the parties agreed to reconcile most of their difficulties and issue a new Statement of Claim focusing on unjust dismissal.

The Divisional Court declined to decide the remaining issue of whether a Band Council member can sue the Band Council, leaving it to be raised against the new pleading if necessary.

No costs were awarded.

The tenant brought a motion to set aside the dismissal of her appeal, which had been dismissed after she failed to attend a hearing.

The court dismissed the motion, finding that the tenant had done nothing for two months despite knowing the landlord was seeking a dismissal.

The tenant was ordered to vacate the property and pay fixed costs of $3,200.

The appellant appealed a trial judgment awarding damages to the respondent for wrongful termination of a commercial lease and the aborted sale of the respondent's business.

The Court of Appeal upheld the trial judge's findings on liability, agreeing that the appellant wrongfully terminated the lease and unreasonably withheld consent to assign it.

However, the Court varied the damages award, reducing it by $10,000 to account for legal fees the respondent had not actually paid.

The respondent's cross-appeal for punitive and aggravated damages was dismissed.

The applicant sought judicial review of preliminary procedural rulings made by a university Faculty Disciplinary Committee.

The Divisional Court dismissed the application as premature, noting that the discipline proceedings had not yet been completed and there was a right of appeal to the University Appeal Committee.

The court found no evidence of corruption or bias that would justify interfering at this stage.

The appellants appealed an order amending a consent judgment regarding the submission of plans for the removal of support beams.

The motion judge amended the judgment to reflect the mutual intent of the parties, as the original language did not accomplish the goal of filing plans that would satisfy the City of Toronto's requirements for a building permit.

The Court of Appeal found the rectification was justified and dismissed the appeal, extending the deadline for submitting the plans on consent.