Andra M. Pollak

Following the defendants’ success at trial, the court addressed the appropriate quantum of costs on a partial indemnity basis.

The plaintiff challenged certain components of the defendants’ claim, including $18,000 for services by a lawyer not on the record and $1,000 in disbursements unsupported by receipts.

The court disallowed the claim relating to the lawyer not on the record, finding the authority cited by the defendants inapplicable and the claim incapable of proper scrutiny.

The court rejected the plaintiff’s challenge to the amount of pre‑trial preparation time but required receipts to substantiate the claimed disbursements before awarding them.

Costs were awarded to the defendants on a partial indemnity basis subject to confirmation of the disbursements.

The applicant brought an application for directions under Rule 75.06(1) of the Rules of Civil Procedure to challenge the validity of a will and codicils based on undue influence and lack of capacity.

The respondents moved for summary judgment to dismiss the application, arguing the underlying claims were statute-barred.

The court dismissed the motion for summary judgment, holding that such a motion is generally not available in an application unless specifically authorized by a procedural order, and that the court could not achieve a full appreciation of the evidence at this early stage.

The plaintiff property owner alleged that petroleum hydrocarbon contamination migrated from the defendants’ neighbouring industrial site onto its property and sought damages under the Environmental Protection Act, as well as in nuisance, negligence, and punitive damages.

The court accepted expert evidence that contaminants from the defendants’ property migrated onto the plaintiff’s land, but held the plaintiff failed to prove compensable loss or damage.

Because the Ministry of the Environment had already issued an order requiring remediation, the court found that awarding remediation costs would risk double recovery under s. 99 of the Environmental Protection Act.

The plaintiff also failed to prove actual, substantial physical damage, loss of use, or diminution in value of the property necessary to sustain nuisance or negligence claims.

All claims were therefore dismissed.

The appellants appealed part of a Master's order denying their motion to dismiss the respondents' counterclaim in a mortgage enforcement action.

The appellants had obtained summary judgment on the main action but sought dismissal of counterclaim allegations including repayment of funds deducted from the mortgage advance and damages for vandalism, breach of contract, conspiracy, and breach of fiduciary duty.

The court held that the appellants failed to link their evidentiary record to the specific counterclaim allegations and therefore did not meet their burden on the summary judgment motion.

The Master correctly applied the governing legal principles and did not commit a palpable and overriding error or exercise discretion on wrong principles.

The appeal was dismissed and costs were awarded to the respondents.

The appellant appealed a decision of the Consent and Capacity Board confirming that he was incapable of consenting to treatment with antipsychotic medication.

He argued the Board erred in applying the statutory capacity test under the Health Care Consent Act and failed to consider his understanding of treatment information and concerns about medication side effects.

The court applied a reasonableness standard of review and considered the two‑part capacity test from Starson v. Swayze requiring both understanding of relevant information and appreciation of foreseeable consequences.

The court found the Board reasonably concluded that the appellant’s delusional beliefs prevented him from both understanding and applying treatment information to his own circumstances.

The appeal was dismissed.

The appellant elevator maintenance contractor appealed convictions under the Technical Standards and Safety Act, 2000 and Ontario Regulation 209/01 arising from an elevator failure that injured several individuals.

The trial judge convicted the appellant on several strict liability offences relating to inspection failures, unsafe operation of an elevating device, and failure to maintain proper log books, and imposed substantial fines.

On appeal under the Provincial Offences Act, the appellant argued jurisdictional error due to a lost original Information, misinterpretation of regulatory obligations, improper application of the Kienapple principle, and an excessive sentence.

The Superior Court held that reliance on a duplicate Information did not deprive the court of jurisdiction, that the evidence supported the convictions, and that the trial judge properly rejected the due diligence defence.

The court also found no error in the refusal to stay certain counts or in the quantum of the fines.

The applicant brought a motion for partial summary judgment in an estates application seeking declarations that a will and codicils were invalid due to undue influence and that certain joint assets formed part of the estate.

The motion sought a determination that any claims against the respondents regarding their handling of assets received by right of survivorship or as designated beneficiaries were barred by operation of the Limitations Act, 2002.

The respondents argued that the application implicitly sought relief against them, including declarations of breach of fiduciary duty and an order requiring remedy.

The court expressed concerns regarding the appropriateness of the motion in the context of the relief sought in the application.

The court directed the parties to appear at a further hearing to address those concerns before determining the motion.

Following a motion, the court determined the appropriate costs award between the parties.

The successful party sought costs on a substantial indemnity basis and relied on an earlier offer to settle under Rule 49 of the Rules of Civil Procedure.

The court rejected the argument that the motion had little chance of success and declined to award substantial indemnity costs.

It also found that the offer to settle related to the entire action rather than the summary judgment motion and therefore did not trigger Rule 49 cost consequences.

Following an application proceeding, the court considered written submissions regarding costs.

The applicant argued that because the respondents had not objected to proceeding by way of application, the issue of costs should be determined by the trial judge.

The court agreed that the trial judge would be better positioned to assess any costs thrown away as a result of the application and noted that the record lacked sufficient evidence regarding the parties’ positions on the procedural choice.

The court therefore declined to determine costs at this stage.

The defendant regulatory body brought a motion under Rules 21 and 25 of the Rules of Civil Procedure to strike the plaintiff’s Statement of Claim alleging damages arising from the regulator’s handling of a complaint against a physician.

The plaintiff sought $18 million and alleged the regulator failed to properly investigate the complaint and lacked transparency in its investigative process.

The court held that the claim was barred by statutory immunity under the Regulated Health Professions Act, 1991 and by the doctrine of adjudicative immunity applicable to quasi‑judicial regulatory functions.

The court also found that the regulator owed no individual duty of care to the plaintiff and could not be vicariously liable for the conduct of its members.

Concluding it was plain and obvious the claim disclosed no reasonable cause of action, the court struck the Statement of Claim without leave to amend.

The plaintiff moved for summary judgment seeking payment of approximately $2.53 million under a promissory note issued as part of a share sale transaction.

The defendant argued that payment obligations under the note were conditional upon its compliance with financial covenants contained in a specific 2007 banking facility letter with its lender.

The court interpreted the promissory note and held that the relevant covenants were those contained in the specifically referenced 2007 facility letter, not later amendments.

Because the defendant could not make payment without breaching those original covenants, the condition precedent to payment had not been satisfied.

The motion for summary judgment was therefore denied.

The court considered whether a defendant whose statement of defence had been struck and who was noted in default could nonetheless make submissions at trial regarding the plaintiff’s entitlement to damages.

The plaintiff argued that allowing submissions would constitute an abuse of process, relying on Rule 19.02 of the Rules of Civil Procedure.

The court applied authority interpreting Rule 19.02 and held that making oral submissions does not constitute “taking another step” in the action.

Accordingly, a defendant noted in default is not barred from attending a motion or hearing and making submissions.

The court permitted the defendant to make submissions and directed the parties to exchange further written submissions.

Following a trial in which the plaintiff was successful, the court determined the appropriate costs award.

The plaintiff sought to increase the agreed partial indemnity costs amount and to obtain substantial indemnity costs based on a Rule 49 offer under the Rules of Civil Procedure.

The defendant argued that the plaintiff’s misleading conduct justified denying the plaintiff costs and awarding costs to the defendant instead.

The court held that the parties’ agreement that $41,000 represented reasonable partial indemnity costs should be respected and declined to increase the amount.

The court also refused substantial indemnity costs due to the plaintiff’s misleading conduct but declined to award costs to the defendant.

A former bank employee brought an application seeking payment of allegedly outstanding bonuses under a Restricted Share Unit plan following his resignation.

The employer denied liability on the basis that the plan provided for forfeiture of unvested units upon resignation.

The applicant argued that the forfeiture provision operated as an unreasonable restraint of trade and was unconscionable.

The court held that the evidentiary record was insufficient to determine whether the provision constituted an enforceable restraint of trade and concluded that the issues raised involved material factual disputes.

The court determined that the matter was not properly brought by way of application and directed that submissions be made regarding continuation of the proceeding as a trial.

The appellants appealed a Master’s order refusing to dismiss most aspects of a counterclaim on a summary judgment motion in a mortgage enforcement action.

The counterclaim alleged vandalism, burglary, trespass, breach of contract, conspiracy, and repayment of fees deducted from the mortgage advance.

The appellants argued that the Master misapprehended the evidence and improperly shifted the burden by requiring them to disprove the respondents’ allegations.

The court held that the appellants failed to adduce evidence specifically addressing several pleaded claims or linking their evidence to the alleged causes of action.

The Master applied the correct legal principles and committed no palpable and overriding error.

The plaintiff consulting firm brought an action against the defendant for unpaid fees based on an hourly rate under a written agreement.

The defendant argued that the parties had orally agreed to a new flat-rate agreement, or alternatively, that the plaintiff's conduct—including concealing hourly tracking in invoices using white font—amounted to acquiescence, breach of good faith, breach of fiduciary duty, and fundamental breach.

The Superior Court of Justice found that no new agreement was reached and rejected all of the defendant's equitable and common law defences.

The court held that the original agreement remained in force and ordered the defendant to pay the outstanding invoices, as well as damages for failing to provide the required one month's written notice of termination.

In a wrongful dismissal action under Rule 76, the plaintiff sought additional damages after termination without cause and challenged whether a binding settlement had been reached on termination entitlements.

Applying the objective observer test to the parties’ email exchanges and post-termination conduct, the court found the parties negotiated and finalized a settlement package including notice pay, commissions, extended benefits, and temporary office use.

The court held the employee’s acknowledgment that all terms were agreed, together with acceptance of the negotiated package, confirmed a complete settlement.

Because the settlement had already been performed by the defendants, no further wrongful dismissal damages were recoverable and the action was dismissed, with the defendants entitled to partial indemnity costs.

On a summary judgment motion, the moving party sought equitable subrogation to obtain payment priority over second and third mortgagees after its funds had been used to discharge a first mortgage in a failed mortgage transaction.

The court applied the fairness-focused subrogation framework from appellate authority and held the record was sufficient to decide the issue without a trial under the summary judgment test.

The responding parties failed to adduce admissible evidence showing prejudice, detrimental reliance on registration priority, or a genuine issue requiring trial on alleged negligence and fairness.

The court concluded denial of subrogation would create unjust enrichment because the responding mortgagees would be in a better position than if the first mortgage had not been paid out.

Summary judgment was granted, subrogation relief was ordered, and costs were awarded to the successful moving party.

A long‑term employee brought a wrongful dismissal action after being laid off and not recalled within the time permitted under the Employment Standards Act, 2000.

The court held that termination deemed under the Act occurs on the first day of layoff and that the common law notice period also runs from that date.

Applying the Bardal factors, the court found a 12‑month reasonable notice period.

However, the employee failed to mitigate his damages by declining a reasonable offer to return to work at a lower wage where no hostile work environment was established.

Damages were therefore limited to the period prior to the rejected offer plus a wage differential thereafter.

On a Rule 21 and Rule 25 motion, the moving defendants sought to strike a statement of claim alleging malicious prosecution, negligence, conspiracy, and related causes of action.

The court held it was plain and obvious the malicious prosecution and false arrest allegations could not succeed because the claimant's conviction had been upheld on appeal.

The court further held the negligence allegations tied to correctional policy decisions and claims against the public guardian failed to disclose a private law duty of care, and many allegations constituted impermissible collateral attack and abuse of process.

The statement of claim was struck as against the moving defendants and the action against them was dismissed, with costs awarded to those defendants.