Alexander Melfi

The Court of Appeal for Ontario dismissed Stephen Harbour’s appeal from the order of Justice William S. Chalmers, which required Harbour to indemnify Puneet Brar and Realtus Law Professional Corporation for payment of a Canada Revenue Agency lien on Harbour’s property.

The court found no error in the application judge’s findings regarding the interpretation of the indemnity agreement, the need to convert the application to an action, or the finding of unjust enrichment.

The appeal was dismissed with costs to the respondents.

The applicants, a lawyer and her firm, sought judgment against the respondent for $564,707.47 plus interest and costs.

The applicants had paid this amount to discharge a Canada Revenue Agency (CRA) lien on the respondent's property, which they had undertaken to clear during a property sale.

The respondent had previously provided incomplete lien discharge statements and refused to grant the applicants direct access to his CRA account, leading to the execution of a declaration and indemnity agreement.

The respondent argued the indemnity was ambiguous (contra proferentem) or that he did not understand its nature (non est factum), and alternatively, that unjust enrichment did not apply.

The court dismissed the respondent's arguments, finding the indemnity clear and applicable, and that the elements of unjust enrichment were met.

Judgment was granted in favour of the applicants.

The plaintiffs sought to amend their claim to include Cara Vaccarino as a defendant and requested an order for the mirroring of her electronic devices and email account to preserve confidential and proprietary information.

This request arose after it was discovered that another defendant, Ms. Anderson, had forwarded confidential information to Ms. Vaccarino.

Despite Ms. Vaccarino's assertion that she did not recall opening or using the email, the court found it appropriate to order the mirroring to preserve evidence and determine the use of the information.

The court ordered the mirroring to cover the period from June 1, 2023, to the present, with counsel to coordinate the least disruptive process.

The defendant, Michael Garron Hospital (MGH), sought substantial indemnity costs for a dismissed motion brought by the plaintiffs concerning lease rights.

MGH argued for elevated costs due to alleged bad faith and an unaccepted offer to settle.

The court found no reprehensible conduct justifying substantial indemnity costs and ruled that the offer to settle did not trigger Rule 49.10 consequences for an elevated scale.

The court awarded MGH costs on a partial indemnity scale, fixing the amount at $40,000 all-inclusive, considering the motion's importance, moderate complexity, and the principle of fairness and reasonableness.

The appellants, Metro 1 Development Corporation Ltd. and its sub-tenant Athens, appealed a lower court decision that found Metro 1 in breach of a commercial lease for failing to operate a Tim Hortons restaurant and denied relief from forfeiture.

The Court of Appeal upheld the motion judge's interpretation of the lease, finding no implied term that would permit an alternative food service if a Tim Hortons franchise could not be maintained.

The court also found no error in the refusal to grant relief from forfeiture, rejecting arguments of bad faith by the respondent hospital and clarifying the scope of the duty of good faith in contract law.

The appeal was dismissed, and costs were awarded to the respondent.

The defendants brought motions seeking to remove the plaintiffs' counsel, Julian Falconer and Falconers LLP, and for the production of portions of their file concerning advice given to plaintiff Bradley Blair regarding a complaint to the Ombudsman and a related judicial review application.

The defendants argued that counsel was a potential witness, an "unsworn witness," or had a conflict of interest based on a duty of loyalty, and that solicitor-client privilege had been waived.

The court dismissed both motions, finding no deemed waiver of privilege, no likelihood of counsel being a material witness, no "unsworn witness" concern given the nature of prior interactions, and no duty of loyalty conflict.

The Plaintiffs (Metro 1 Development Corporation Ltd. and its subtenants) brought a motion seeking a declaration that their lease agreement with Michael Garron Hospital had not been breached, or alternatively, for relief from forfeiture.

The dispute arose from a 'use' clause in the lease requiring the operation of a Tim Hortons restaurant, which became impossible after the termination of a separate Product Licence Agreement with TDL Group Corp. The Plaintiffs argued for an implied term in the lease to allow for a different food service and contended that the Hospital acted in bad faith.

The court dismissed the motion, finding no basis to imply a term that contradicted the express language of the lease and denying relief from forfeiture based on the Plaintiffs' conduct, the gravity of the breach, and the balance of interests.

The appellant, Hafeez Fazl, sought a panel review of a single judge's decision to dismiss his appeal for delay.

He also requested an adjournment, initially for a religious pilgrimage, and subsequently on the grounds of being a party under a disability requiring a litigation guardian, citing a 2019 doctor's note.

The Court of Appeal for Ontario dismissed the adjournment request due to a lack of proper medical or psychiatric evidence and the absence of any application under the Substitute Decisions Act, 1992.

The panel found no error in the original dismissal of the appeal for delay, noting the underlying action had been dismissed on summary judgment as being "without a scintilla of merit" due to previous litigation on the same issues.

The motion for review was dismissed, with no order as to costs.

The appellant, R.W. (Brad) Blair, appealed the dismissal of his defamation action against Premier Doug Ford, which was dismissed under an anti-SLAPP motion (s. 137.1 of the Courts of Justice Act).

Ford cross-appealed the costs award.

The Court of Appeal dismissed Blair's appeal, upholding the dismissal of the defamation action, and allowed Ford's cross-appeal in part regarding the timing of costs payment, making the full award immediately payable.

The court also quashed appeals from preliminary interlocutory orders due to lack of jurisdiction.

The plaintiff, Trade Capital Finance Corp., brought a motion to compel the defendant, Carlo De Maria, to make full disclosure and produce documents relating to the operation of The Cash House Inc. and related corporations.

The plaintiff alleged it was defrauded of millions of dollars and that the stolen funds were funneled through these corporations.

The court found that De Maria retained power and control over the documents despite a purported sale of the business.

The court ordered De Maria to serve a further and better affidavit of documents and produce the requested records, subject to specific rulings on individual categories of documents.

Following the dismissal of the applicants' application, the self-represented respondents sought costs of $33,320.25.

The applicants argued that the respondents were not entitled to costs because they failed to demonstrate an opportunity cost by foregoing remunerative activity, as required by Girao v. Cunningham.

The court held that while the respondents did not prove an opportunity cost, they were still entitled to a modest costs award to incentivize reasonable settlement positions.

The court awarded the respondents partial indemnity costs fixed at $8,500.

The self-represented plaintiff commenced an action against the lawyers and a consultant acting for a corporation in which he is a minority shareholder, alleging negligence and enabling oppression.

The court initiated a Rule 2.1 review to determine if the claim was frivolous, vexatious, or an abuse of process.

The court found that while the plaintiff may eventually have a viable claim depending on the outcome of his main oppression action, the current claim against the corporation's professionals was premature and an abuse of process.

The action was dismissed without prejudice, with leave required to recommence after the main action concludes.

The applicants and respondents are neighbours sharing a mutual driveway subject to registered rights of way.

The applicants brought an application seeking a declaration that their right of way included the right to park their vehicle on the mutual driveway.

The respondents brought a cross-application seeking a declaration that the right of way was limited to ingress and egress, and an order for the removal of obstructions.

The court held that the applicants' right of way did not include an ancillary right to park, as doing so would substantially interfere with the respondents' right of way.

Both parties were ordered to remove any obstructions preventing vehicles from driving down the mutual driveway.

The motion was brought by Robert M. Micheli and his law firm (Fourth Parties) to strike out the fourth party claim by Stella and Stainton Pinnock (Defendants) for disclosing no reasonable cause of action and being an abuse of process.

The Pinnocks' fourth party claim sought indemnity and damages related to a mortgage dispute and a failed property sale, alleging bad faith, misrepresentation, and negligence against Micheli, who acted for the mortgage lender.

The court found that many of the Pinnocks' claims were foreclosed by prior findings from the Court of Appeal and Supreme Court of Canada, which established that the Pinnocks had no equity in the property and their inability to close the sale was not caused by Micheli's conduct.

The court struck out the fourth party claim but granted leave to amend, providing guidance on permissible claims.

The third parties moved to strike the self-represented defendant's third-party claim.

The defendant had previously alleged mortgage fraud against the plaintiff and the third parties, but a prior summary judgment motion found the mortgage valid and no evidence of fraud.

The defendant sought an adjournment, which the court denied due to a prior peremptory order and insufficient evidence of incapacity.

The court struck the third-party claim, finding it was issued late without leave, constituted an abuse of process as a collateral attack on the prior judgment, and disclosed no reasonable cause of action.

The plaintiff brought a motion to amend his statement of claim to reduce damages to $35,000, dismiss a third-party claim, and transfer the action to the Small Claims Court.

The defendants opposed the transfer, arguing prejudice due to COVID-19 delays and costs already incurred in defending the Superior Court action.

The court granted the unopposed amendments and dismissal of the third-party claim.

The court also granted the transfer to Small Claims Court, finding no definitive prejudice from delay, but ordered the plaintiff to pay $500 to each defendant for costs thrown away on steps unnecessary in Small Claims Court.

This endorsement followed the twelfth case management conference, addressing the progression of the action towards trial.

The court noted the completion of pleadings and examinations for discovery.

A key issue was the non-compliance of one defendant with a previous cost order of $44,000.

The plaintiffs, prioritizing trial scheduling, reserved their right to seek remedies for non-compliance.

The court issued specific directions for trial readiness, including deadlines for expert reports, filing of the Trial Record, and a certification form for setting pre-trial and trial dates.

Parties were also directed to confer on adopting a summary trial format versus an ordinary trial.

Your Neighbourhood Credit Union (YNCU), a non-party and first mortgagee, moved to set aside a prior judgment (Hainey J.) that granted an easement over its mortgaged lands, alleging lack of notice.

The motion was held in abeyance pending an appeal of a similar judgment (Conway J.), which was subsequently overturned by the Court of Appeal, finding no legal entitlement to an easement.

The court found YNCU's motion, continued by its assignee Silsym Inc., met the "forthwith" requirement of Rule 38.11 despite delays.

Given the Court of Appeal's ruling on similar facts, the court concluded there was no entitlement to the easements granted by the Hainey Judgment and allowed the motion, setting aside the judgment.

Costs were fixed at $20,000 for the moving party.

The defendant brought a motion to dismiss the plaintiff's action for delay and non-compliance with a security for costs order.

The plaintiff had failed to post $60,000 security for costs and pay $7,500 in costs as previously ordered, and had not advanced the action for over 6.5 years, missing multiple deadlines for discoveries and setting the action down for trial.

The court denied the plaintiff's request for a further adjournment, finding the delay inordinate and inexcusable, leading to a presumption of prejudice that was not rebutted, and actual prejudice to the defendant.

The action was dismissed with costs.

The defendant lawyers brought a motion to strike the plaintiff's claim against them for professional negligence under Rule 21.01(1)(b) of the Rules of Civil Procedure.

The plaintiff, a lender in a private mortgage transaction, alleged that the defendant lawyers, who represented the borrower, owed it a duty of care and failed to conduct adequate due diligence.

The court granted the motion, finding that opposing counsel generally owe no duty of care to an opposing party, especially when both parties are represented by independent counsel.

The court concluded that there was no special relationship or sufficient proximity to establish a duty of care, and struck the pleadings against the defendant lawyers.