Andra M. Pollak

This costs endorsement followed a Rule 21 motion in which the plaintiff had objected that disputed facts made the motion inappropriate.

The court accepted that the defendant's motion forced the plaintiff to address the enforceability of the termination provision to the extent permitted under Rule 21.

Applying the Rules and the Boucher costs framework, the court found it just and reasonable to award immediate costs rather than costs in the cause.

Partial indemnity costs of $4,714, inclusive of disbursements and applicable taxes, were awarded to the plaintiff.

This was a costs decision following a damages award in an employment dispute.

The defendant argued that no costs should be awarded because the recovery only slightly exceeded the Small Claims Court jurisdiction, and alternatively challenged the reasonableness of counsel’s hourly rate and the proportionality of the claim.

Applying Rule 57.01 and the governing appellate framework on reasonable and fair costs, the court held that costs were warranted and awarded the full amount sought on a partial indemnity basis.

The plaintiff recovered $18,215 in costs.

Appeal from two Consent and Capacity Board decisions finding the appellant incapable of consenting to psychiatric treatment and incapable of managing property.

The court held that the Board reasonably applied the statutory tests under the Health Care Consent Act and the Substitute Decisions Act, and did not improperly substitute a best interests analysis for the legal test for capacity.

The court also upheld the Board’s finding that the Mental Health Act transmission requirements for the certificate of incapacity and financial statement had been met.

Both appeals were dismissed.

The defendants moved for summary judgment dismissing an action brought in the name of a partnership arising from a long-running family inheritance dispute involving a French estate.

The court held that the partnership lacked a valid cause of action because the pleaded claims belonged, if at all, to an individual partner rather than to the partnership itself.

Applying the summary judgment framework under Rule 20.04 and Hryniak, the court found there was no genuine issue requiring a trial.

Although unnecessary to the result, the court also accepted the defendants' limitation period submissions.

The action was dismissed and the defendants were entitled to costs.

The defendant landlord moved for a mandatory interlocutory injunction to compel the plaintiff tenant to allow access to the leased premises for environmental testing related to redevelopment.

The landlord relied on a lease provision requiring the tenant not to hinder redevelopment.

The court dismissed the motion, finding that the lease provision did not grant the landlord a right of access, the landlord's case on the merits was weak, and there was insufficient evidence of irreparable harm.

The plaintiff brought a wrongful dismissal action following termination after 14 years of employment as an accounts receivable/payroll administrator.

The primary issue was the appropriate period of reasonable notice and the quantum of damages where the trial occurred before the full notice period had elapsed.

Applying the Bardal factors, the court determined that a reasonable notice period was 12 months.

However, only 10 months had passed since termination and the plaintiff failed to provide sufficient evidence establishing that she would be unable to mitigate during the remaining period.

The court awarded damages for the proven 10 months of unemployment, less amounts already paid, and ordered conditional payment of the remaining two months subject to mitigation if no employment was obtained.

The defendants brought a motion for summary judgment seeking dismissal of claims for wrongful dismissal and wrongful/arbitrary detention.

The court held that the claims were statute‑barred under s. 4 of the Limitations Act, 2002 and that the wrongful dismissal claim was additionally barred by s. 97(2) of the Employment Standards Act, 2000 and the doctrine of issue estoppel, as the plaintiff had previously pursued an ESA complaint regarding the same termination and was found to have resigned.

The court declined to grant summary judgment dismissing the claim for malicious prosecution because the defendants relied exclusively on hearsay affidavit evidence and failed to meet the evidentiary burden required on a summary judgment motion.

An alternative argument that the statement of claim was deficient was not adjudicated because such relief must be brought before a master.

The motion therefore succeeded only in part.

In a motion for summary judgment, the defendants argued that the partnership plaintiff lacked standing because the alleged rights belonged to its individual partners.

During the proceedings the partnership sought to amend the claim to add certain partners as plaintiffs under Rule 5.03(1) of the Rules of Civil Procedure.

The court considered whether partners could self‑represent the partnership and whether two of three partners could bring the amendment motion with the third partner’s written consent.

Relying on the Partnerships Act and the Solicitor’s Act, the court held that the partners could make decisions binding the partnership and were representing themselves rather than acting in a prohibited representative capacity.

The court directed that the motion to amend be heard by a Master before the summary judgment motion proceeds.

The defendants brought a motion seeking dismissal or a stay of an Ontario action arising from a landslide at a Costa Rican gold mine, arguing that Costa Rica or Colorado was the more appropriate forum under the doctrine of forum non conveniens.

The court applied the principles articulated by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda and Breeden v. Black.

While the moving defendants established certain connections between the dispute and the proposed foreign forums, they provided little evidence regarding the characteristics of those forums or how litigation there would be fairer or more efficient.

The court held that merely identifying geographical connections and residence locations was insufficient to meet the burden of demonstrating that an alternative forum was clearly more appropriate.

As the evidentiary record did not establish that either Colorado or Costa Rica was better positioned to resolve the dispute, the motion was dismissed.

The defendant brought a motion to dismiss the action under Rule 3.04(4) of the Rules of Civil Procedure on the basis that the plaintiff failed to comply with a court‑ordered litigation timetable.

The court reviewed the procedural history and found that the timetable had been altered several times with the consent of both parties.

The evidence also showed that the defendant himself had not delivered an Affidavit of Documents as required by the timetable.

Applying the jurisprudence that dismissal is a discretionary remedy reserved for egregious conduct, the court concluded the moving party failed to meet the required burden.

The motion to dismiss was therefore refused.

A former senior executive sued for wrongful dismissal after termination without cause.

The dispute concerned whether a later employment document replaced an earlier agreement containing a 12‑month severance clause, the appropriate reasonable notice period, and entitlement to bonus payments.

The court held the later document constituted a new employment agreement that displaced the earlier severance provision, leaving notice to be determined under the common law.

Applying the Bardal factors, the court awarded a 12‑month reasonable notice period despite the employee’s relatively short tenure and rejected the employer’s proposed three‑month period.

The court also denied the employee’s claim to bonus payments because the bonus plan required active employment at the payout date.

The appeal concerned a preliminary arbitration decision arising from a statutory accident benefits priority dispute under s. 268 of the Insurance Act and O. Reg. 283/95.

The appellant argued that the insurer initiating the dispute was required to conduct a reasonable investigation and give notice to all insurers potentially higher in priority before serving the Motor Vehicle Accident Claims Fund.

The court held that the wording of s. 3 of the Regulation did not impose a general duty to investigate before giving notice and required notice only to insurers the initiating insurer claims are liable.

The court agreed with the arbitrator’s interpretation that the Regulation does not obligate the first insurer to notify every potentially higher-priority insurer or conduct a full investigation prior to issuing a priority dispute notice.

The arbitrator’s decision was upheld.

A real estate brokerage sought commission after the seller refused to complete a residential sale despite entering an agreement of purchase and sale.

The seller argued the brokerage was not entitled to commission because its agent failed to disclose an existing buyer agency relationship with the purchasers before presenting the offer, contrary to the listing agreement and fiduciary duties.

The court held that the agent failed to make the required written disclosure of the dual agency relationship prior to presenting the offer.

This non‑disclosure constituted a material breach of the listing agreement and the agent’s fiduciary obligations.

As a result, the brokerage was disentitled from recovering commission under the agreement.

The plaintiff appealed a master's order dismissing its motion for a court‑imposed discovery plan under the Rules of Civil Procedure.

The appellant argued that a discovery plan was necessary to prevent delays and costs arising from refusals and undertakings during examinations for discovery.

The court held that the master applied the correct legal principles and exercised her discretion appropriately, noting that the pleadings were not finalized and that the appellant had made insufficient efforts to reach agreement on a discovery plan with the opposing parties.

The court also confirmed that jurisprudence does not require a master to impose a discovery plan whenever parties cannot agree, but instead grants discretion based on the circumstances.

Finding no palpable and overriding error or error in principle, the appeal was dismissed.

The defendant brought a motion requesting the Ontario court decline jurisdiction on the basis of forum non conveniens and permit the action to proceed in England.

The claim involved allegations of kidnapping, false imprisonment, assault, torture and threats arising from events in Iran, with plaintiffs residing in Ontario and the defendant asserting stronger ties to England.

Applying the framework from Club Resorts Ltd. v. Van Breda, the court considered comparative convenience, location of witnesses, ability to participate in proceedings, applicable law, and potential procedural advantages.

The court found the evidence inconclusive regarding the defendant’s ability to attend proceedings in either jurisdiction and held the defendant failed to establish that England was clearly the more appropriate forum.

The motion was therefore dismissed.

The moving physician defendants brought a motion to strike portions of a statement of claim and dismiss the action against them in a medical negligence action arising from a brain biopsy procedure.

They argued that the pleading contained generalized allegations of negligence without material facts identifying each defendant’s role or specific acts or omissions.

Applying the “plain and obvious” test for striking pleadings, the court found the claim as drafted disclosed no reasonable cause of action against the moving defendants.

However, the deficiencies were considered curable through amendment and the defendants failed to establish prejudice that would justify denying leave to amend.

The impugned paragraphs were struck but the plaintiff was granted leave to amend the statement of claim within 30 days.

A self-represented litigant previously declared a vexatious litigant sought leave under s. 140 of the Courts of Justice Act to proceed with an appeal of a prior court order.

The court considered the statutory requirement that leave be granted only where the proposed proceeding is not an abuse of process and has reasonable grounds.

The judge also noted that s. 140(4)(e) provides that no appeal lies from a refusal to grant relief from such an order.

After reviewing the application materials and submissions, the court concluded that no grounds existed to grant leave to proceed.

The moving defendants brought a Rule 22 motion seeking determination of whether Ontario or Alberta law governed the plaintiff’s contractual and tort claims arising from a fire allegedly caused by a defective fryer and oven system supplied to an Alberta poultry processing plant.

The parties agreed that if Alberta law governed the tort claims, the claims would be statute‑barred under Alberta’s ultimate limitation period.

Applying the lex loci delicti rule from Tolofson v. Jensen, the court held that Alberta law governed the tort claims because the damage occurred in Alberta, and therefore those claims were dismissed as statute‑barred.

However, applying the “closest and most real connection” test for contractual choice of law, the court found the contract was most closely connected to Ontario, where the system was designed and supplied.

Ontario law therefore governed the contractual claims.

Following a motion concerning a construction lien priority dispute, the court determined the issue of costs between the parties.

The responding party was the successful party on the only issue in dispute and relied on a Rule 49 offer to seek partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The moving party argued it should receive costs because the responding party conceded a minor adjustment to the holdback amount prior to the hearing.

The court rejected that argument, holding the concession did not justify depriving the successful party of costs.

Applying the factors governing costs assessment, including those articulated in Boucher v. Public Accountants Council for the Province of Ontario, the court fixed costs at $17,300 inclusive of disbursements and taxes.

The moving party sought to set aside a Master's report and withdraw an admission regarding the date of a mortgage advance relevant to lien priority under the Construction Lien Act.

The admission established that funds were advanced on November 19, 2009, giving the lien claimant priority over the mortgage advance.

The court held the moving party failed to satisfy the leave test required to bring the interlocutory motion and withdraw the admission.

The evidence showed the admission resulted from litigation strategy and failure to obtain available documents rather than inadvertence or mistaken instructions.

The motion was dismissed and the Master's report left undisturbed.