Andra M. Pollak

The defendants brought a motion under Rule 21.01(1)(b) to strike the plaintiff's claim of negligent misrepresentation and breach of contract.

The plaintiff, a dentist, alleged he was misled during negotiations to exercise an option to purchase an interest in a dental practice.

The court found that the plaintiff failed to properly plead the necessary elements of negligent misrepresentation, including duty of care, detrimental reliance, and damages.

The court granted the motion to strike the negligent misrepresentation claim but granted the plaintiff leave to amend the statement of claim to cure the deficiencies.

The plaintiff, H.R. Doornekamp Construction Ltd., and the defendant, Attorney General of Canada, both brought motions for summary judgment concerning a construction contract dispute.

Doornekamp sought partial summary judgment on liability for additional concrete work, arguing that a specific contract clause (GC6.4.3) constituted a "separate code" for payment, bypassing general dispute resolution (GC8).

Canada sought dismissal of Doornekamp's claim, arguing it was extinguished due to non-compliance with GC8 notice provisions, or alternatively, that genuine issues required a trial regarding the applicability of GC6.4.3 and the quantity of work.

The court found genuine issues requiring a trial regarding whether Doornekamp properly invoked GC6.4.3 and whether Canada's conduct affected Doornekamp's rights, particularly concerning the duty of honest performance and potential variation of contract terms by conduct.

Both motions for summary judgment were dismissed, with the court emphasizing the rarity and challenges of partial summary judgment.

The defendants, TD Waterhouse Canada Inc. and The Toronto-Dominion Bank, brought a motion to strike several paragraphs from the plaintiff, David G. Durno's, Statement of Claim.

The grounds for the motion were that the disputed claims failed to disclose a reasonable cause of action and constituted an abuse of process or an improper collateral attack on Durno's settlement agreement with the Investment Industry Regulatory Organization of Canada (IIROC) and IIROC's approval decision.

The plaintiff argued that his claims for breach of employment contract were not a collateral attack on the settlement, as he was not relitigating admissions but seeking damages for the defendants' alleged failure to supervise and alert him to regulatory concerns.

The court dismissed the defendants' motion, finding that the disputed claims related to a breach of contract and did not constitute an abuse of process or a collateral attack.

The defendant brought a motion for summary judgment to dismiss the plaintiff's motor vehicle accident claim, arguing it was statute-barred as it was commenced more than five years after the accident.

The plaintiff argued the claim was not discoverable until she received a medical opinion indicating her injuries met the statutory threshold for permanent serious impairment.

The court found that the plaintiff did not have a sufficient body of evidence to know her claim had a substantial chance of succeeding until she was diagnosed with fibromyalgia years later.

The court dismissed the defendant's motion and granted partial summary judgment in favour of the plaintiff, dismissing the limitations defence.

The successful self-represented party on an appeal sought a higher costs award than the $2,500 partial indemnity amount agreed to by the parties at the hearing.

He argued that the opposing party took advantage of his lack of knowledge regarding typical costs allowances.

The court declined to vary the agreement, finding the agreed amount reasonable and noting no legal justification for a higher scale of costs.

Costs of $2,500 were awarded to the successful party.

The plaintiff real estate brokerage brought a motion for summary judgment seeking $187,500 in commission from the defendant for an alleged breach of a Buyer Representation Agreement.

The defendant opposed the motion and maintained a counterclaim for damages, alleging the agreement was incomplete when signed and backdated.

The court found significant contradictory evidence regarding the execution and terms of the agreement, concluding there were genuine issues requiring a trial.

The motion for summary judgment was dismissed, as the use of enhanced fact-finding powers would not be in the interests of justice.

The appellant appealed two decisions of the Consent and Capacity Board confirming a Community Treatment Order (CTO) and a finding of incapacity regarding antipsychotic medications and a Community Treatment Plan (CTP).

The appellant argued the Board erred in fact and law by misapprehending evidence and misapplying statutory tests under the Health Care Consent Act and Mental Health Act.

The court, applying a reasonableness standard of review, found the Board's decisions were reasonable, as it properly weighed the evidence of physicians and family, and correctly applied the legal tests for capacity and CTO issuance.

The appeal was dismissed.

The defendants brought a motion to strike portions of the plaintiff's statement of claim in a wrongful dismissal action.

The impugned paragraphs alleged director liability for unpaid wages and oppression, as well as health and safety violations by the corporate defendants.

The court found that the plaintiff failed to plead the necessary material facts to establish director liability under the OBCA and ESA, and that the health and safety allegations improperly pleaded evidence rather than material facts.

The motion to strike was granted, but the plaintiff was granted leave to amend the claim.

The appellant law firm appealed a Master's order allowing the assessment of 13 paid accounts for legal services provided to the respondent client.

The Master had found 'special circumstances' justifying the assessment because the client reasonably believed his matters constituted one ongoing retainer and objected to the firm unilaterally paying its accounts from his settlement funds.

The Superior Court of Justice applied the Housen standard of review, found no palpable and overriding errors in the Master's factual findings or application of the law, and dismissed the appeal.

The applicants sought a contempt order against the respondents for alleged non-compliance with a Master's order requiring an accounting.

The court dismissed the application, finding that the applicants lacked standing because the underlying action against them had been dismissed, and the Master's order for accounting was not made for their benefit.

Furthermore, the court agreed that the Master's order was not sufficiently clear or unequivocal to form the basis for a contempt finding.

The applicant mortgagor defaulted on its mortgage and the respondent mortgagee issued a Notice of Sale.

The applicant brought an urgent application seeking to set aside the Notice of Sale, arguing it contained errors regarding the principal amount, property description, and was unsigned, and sought an injunction to stop the pending sale.

The court dismissed the application, finding that under a standard of commercial reasonableness, the alleged errors did not cause prejudice or confusion to the applicant, who was aware of the property and the default.

The court also declined to grant an injunction for an alleged improvident realization, noting it was not ancillary relief and would require a trial.

The plaintiff consultant brought a motion to enforce a contractual indemnification provision for the advance payment of legal fees by the defendant companies.

The motion was brought before the close of pleadings.

The court found that the corporate indemnity provisions of the CBCA and OBCA did not apply because the consultant was a corporation, not an individual officer or director.

However, the court dismissed the motion, concluding that the relief sought effectively amounted to a partial summary judgment or a mandatory injunction, and the plaintiff had not complied with the requirements for either.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action, claiming constructive dismissal due to a temporary layoff after 23 years of employment.

The court found that the temporary layoff constituted constructive dismissal as there was no contractual right for the employer to implement such a layoff.

However, the court also found that the plaintiff failed to mitigate his damages by refusing a bona fide recall offer from the employer, which included assurances of no reprisals and substantially similar terms of employment.

The plaintiff's subjective belief of embarrassment or degradation was not objectively supported.

Consequently, the plaintiff's damages were limited to the period between the layoff and the recall offer.

The plaintiff, Solea International BVBA, was the successful party on a motion for summary judgment and sought costs on a substantial indemnity basis.

The defendant, Bassett & Walker International Inc., opposed the substantial indemnity claim, arguing that Solea's offer to settle for the full claim amount was not a true "offer of compromise." The court found that Solea was entitled to rely on its offers and awarded costs on a substantial indemnity basis from the date of its offer.

The court also determined the calculation method for substantial indemnity costs for the second hearing.

This endorsement addresses the issue of costs following a trial where there was divided success between the parties.

The Defendants sought costs on a partial indemnity basis, arguing they were the successful parties as they recovered compensation and secured protection from mortgage liability.

The Plaintiff also sought costs.

The court agreed that the Defendants were the successful parties for the purpose of costs but adjusted the amount claimed by the Defendants downwards.

The court awarded costs, including disbursements and taxes, to the Defendants in the amount of $45,000, to be paid by the Plaintiff.

The applicant pool manufacturer sought a declaration that the respondent dealer was required to defend it against third party claims pursuant to a hold harmless and indemnity provision in their dealership agreement.

The third party claims sought contribution and indemnity from the applicant for its own alleged negligence in overseeing a pool installation.

The court dismissed the application, finding that the indemnity provision only applied to claims arising out of the respondent's negligence, and did not require the respondent to defend the applicant against allegations of the applicant's own negligence under the Negligence Act.

This endorsement concerns the costs of a motion where the Plaintiff, The Ontario College of Teachers, was entirely successful.

The Defendant, Ahmed Bouragba, who was self-represented, made no relevant submissions regarding costs.

The court reviewed the Plaintiff's detailed submissions, found them reasonable, and awarded costs of $10,000 to the Plaintiff, to be paid by the Defendant.

The plaintiff brought a motion for summary judgment for the unpaid purchase price of a shipment of shrimp.

The Court of Appeal had previously directed a rehearing applying the Contracts for the International Sale of Goods (CISG).

The defendant argued it was entitled to avoid the contract due to a defective Health Certificate and that the plaintiff's acceptance of the returned shrimp mitigated damages or constituted unjust enrichment.

The court found the defendant did not properly declare the contract avoided under the CISG and that there was no agreement excusing payment of the purchase price upon the return of the goods.

Summary judgment was granted to the plaintiff for the full purchase price plus 8% interest.

The plaintiff, Design Home Gift and Paper Inc., was largely successful on a motion and sought costs.

The court reviewed the parties' submissions and considered the factors set out in the Rules of Civil Procedure and the case of Boucher v. Public Accountants Council for the Province of Ontario.

The court found the plaintiff's requested costs of $4,512, plus an additional $500 for further submissions, to be reasonable.

The defendants were ordered to pay a total of $5,012 in costs to the plaintiff.

The applicant, Genstar Development Partnership, sought to repurchase a property from the respondent, The Roman Catholic Episcopal Corporation of the Diocese of Hamilton, based on a right defined in an Agreement of Purchase and Sale.

Genstar claimed to be a successor or equitable assignee of the original vendor (Imasco) and sought specific performance.

The court dismissed the application, finding that Genstar failed to prove its status as a successor due to an incomplete evidentiary record.

As an assignee, Genstar failed to provide the statutory notice required by the Conveyancing and Law of Property Act.

Furthermore, the court found no anticipatory breach by the respondent and determined that Genstar's tenders were deficient due to an incorrect purchase price.