Andra M. Pollak

The applicant, Unitop, sought a declaration and injunction against the respondent, Exclusive, alleging breach of a 2015 default judgment and trademark infringement/passing off.

Unitop claimed Exclusive's "ORIGINAL SESAME" product, with similar packaging and UPC codes, infringed on Unitop's "SESAME SNAPS" intellectual property.

The court found the 2015 default judgment ambiguous and not applicable to Unitop's new packaging design (adopted in 2020) or Exclusive's "ORIGINAL SESAME" product (introduced in 2021).

The court also determined that Unitop failed to prove valid and enforceable trademark or copyright rights in its new packaging design or establish the elements of passing off, particularly distinctiveness and confusion.

The application was dismissed.

The plaintiff, Liquid Capital Exchange Corp., sought damages for fraud against multiple defendants, including two individuals (Cook and Daoust) who created false invoices, and an Enbridge employee (Zito) and Enbridge Gas Distribution Inc., alleging their involvement or vicarious liability.

The court found that Liquid Capital failed to prove Mr. Zito's participation in the fraud on a balance of probabilities, noting the plaintiff's significant lack of due diligence due to an misplaced trust in one of the fraudsters.

The court also determined that even if Mr. Zito had been involved, Enbridge would not be vicariously liable as Mr. Zito acted outside the scope of his employment and lacked the authority to approve such contracts or invoices.

The action against the defendants was dismissed.

This case involved two consolidated applications concerning a dispute over the allocation of Harmonized Sales Tax (HST) on the sale of a mixed-use property.

The Vendor (Miculinic Investment Corporation) sought the release of escrow funds withheld by the Purchaser (1000029174 Ontario Inc. and 2303515 Ontario Inc.), who had objected to the Vendor's HST allocation and sought a judicial declaration on the residential portion's value.

The court found that it was not its role to determine the HST amount, as the Canada Revenue Agency (CRA) had already made an assessment.

The court granted the Vendor's application for the release of escrow funds, finding the Purchaser's allocation not unreasonable but upholding the Vendor's right to the funds based on the CRA's assessment and the terms of the Agreement of Purchase and Sale.

The Purchaser's cross-application was dismissed.

The plaintiff, a systems technician, brought a motion for summary judgment against his former employer for wrongful dismissal, aggravated, punitive, and/or moral damages.

The plaintiff was terminated after refusing to comply with a mandatory COVID-19 vaccination policy implemented by the employer's primary client, Bell, which accounted for over 99% of the employer's business.

The employer argued that the employment contract was frustrated due to the plaintiff's inability to perform essential duties.

The court found that Bell's vaccination policy was an unforeseen supervening event beyond the parties' control, leading to a radical change in the employment contract.

The plaintiff's motion for summary judgment was denied, and the action was dismissed, as the employment contract was deemed frustrated, negating any entitlement to common law reasonable notice.

The Landlord, Niagara Falls Shopping Centre Inc., brought a motion for summary judgment against its tenant, LAF Canada Company, for unpaid rent during government-mandated COVID-19 closures.

LAF counterclaimed, seeking rent abatement based on force majeure, frustration of contract, "damage or destruction" under the lease, and unjust enrichment.

The court granted the Landlord's motion, finding that the force majeure clause did not excuse rent payment as financial inability was explicitly excepted and payment could cure the failure to perform.

The frustration defense was rejected because the event was contemplated by the force majeure clause.

The "damage or destruction" claim was dismissed as it required physical alteration to the property, not merely inability to use due to the virus.

The unjust enrichment claim failed as the lease provided a juristic reason for the enrichment.

The defendants, an insurance company and a public adjuster, brought a motion for summary judgment to dismiss the plaintiffs' action concerning a fire insurance claim.

The plaintiffs alleged the settlement and release were unfair due to an imbalance of bargaining power and the defendants' negligence/bad faith.

The court dismissed the summary judgment motion, finding genuine issues for trial regarding the validity and clarity of the release, the professional negligence claims against the adjuster, and whether expert evidence on the standard of care was required given the alleged egregious conduct.

The court emphasized caution against granting partial summary judgment due to risks of delay, expense, and inconsistent findings.

The appellant, Dr. Mistry, appealed an Associate Justice's order that granted a motion to add him and Dr. Karmali-Rawji as defendants in a medical malpractice action.

The core issue was whether the claim against Dr. Mistry for delayed diagnosis and failure to refer was statute-barred under the Limitations Act, 2002.

The Master had found the claim was discovered in May 2017 when the plaintiff's counsel reviewed medical records, thus the limitation period had not expired.

Dr. Mistry argued the claim was discoverable earlier, by February 2015.

The court dismissed the appeal, finding no palpable and overriding error in the Master's decision.

It affirmed that the plaintiff, an unsophisticated litigant, and his counsel could not have drawn a plausible inference of liability against Dr. Mistry without the new information from the full medical records, which revealed the spinal lesion was diagnosable earlier.

The plaintiff, Valleywoods Rentals Inc., brought an action against Yukon Construction Inc. for alleged deficiencies in the construction of exterior entrance stairs, claiming the work failed to comply with the Ontario Building Code and industry standards.

The defendant denied the deficiencies, asserting the work was performed according to the contract and had been approved by relevant authorities.

The court dismissed the plaintiff's action, finding that Valleywoods failed to meet its burden of proof regarding the alleged deficiencies.

The court gave significant weight to the approvals by the Construction Manager, Project Architect, and the City of Toronto (granting occupancy), and found the plaintiff's expert and hearsay evidence unreliable.

Costs were awarded to the defendant.

The College of Physicians and Surgeons of Ontario (CPSO) sought an order compelling Dr. Rochagne Kilian to provide patient files related to COVID vaccine exemptions.

Anonymous patients (Proposed Intervenors) brought a motion to intervene as parties, arguing their privacy and Charter rights under sections 7 and 8, and the applicability of the O'Connor process.

Dr. Kilian supported the intervention, raising constitutional challenges to the CPSO's investigation powers.

The court reserved its decision on the intervention motion, finding that the "subject matter and scope of this Application" needed to be determined first, as there was significant dispute between the parties on this fundamental issue.

The Plaintiffs brought a motion for summary judgment seeking a declaration of entitlement to renew a lease agreement for a gas station.

The Defendant opposed, alleging material breaches of the lease, specifically non-compliance with Technical Standards and Safety Authority (TSSA) requirements regarding daily dip records and unauthorized use of the premises for truck parking.

The court found that the Plaintiffs failed to meet their burden of proving they were not in material default of the lease, particularly concerning TSSA compliance.

The motion for summary judgment was dismissed, and equitable relief from forfeiture was denied, as the case involved a failure to crystallize a right rather than a loss of an existing right.

Oscar Sun, a minor, suffered catastrophic injuries after being hit by a car driven by Sergio Ferreira after exiting a TTC bus.

The plaintiffs (Sun, Chen, Sun) sued Ferreira, TTC, and the City of Toronto.

Ferreira also brought a third-party claim against TTC and the City.

The City, TTC, and Donald Carter brought two motions for summary judgment to dismiss the plaintiffs' action against them and Ferreira's third-party claim, arguing the claims were statute-barred by the Limitations Act, 2002.

The court dismissed both motions, finding a genuine issue requiring a trial regarding the discoverability of the claims and whether it was appropriate to commence legal action earlier, particularly concerning the alleged negligent design of the bus stop and crosswalks.

The court also noted concerns about partial summary judgment.

The defendants appealed a Master's decision to grant and not discharge a Certificate of Pending Litigation (CPL) against Ms. Tan's property.

The appeal grounds included alleged failure of full disclosure, misrepresentation of facts, and lack of a reasonable claim to an interest in the property by the plaintiffs.

The court, applying the standard of review for Master's decisions (palpable and overriding error for factual findings, error of law/wrong principles for discretionary decisions), found no such error.

The Master properly determined there was a triable issue regarding the plaintiffs' claim to an interest in the property and that the plaintiffs did not fail to make full disclosure or misrepresent material facts.

The appeal was dismissed, and the respondents/plaintiffs were awarded costs.

The plaintiff, a wrongfully dismissed regional sales manager, sought damages including lost commissions during an 8-month common law notice period.

The defendant argued that sales plan provisions limited commission entitlement to sales booked and billed prior to active employment termination.

The court applied the O'Reilly v. IMAX Corporation two-step analysis, finding that the 2017 Sales Plan did not unambiguously remove common law rights to commissions during the notice period.

Furthermore, changes in the 2018 Sales Plan regarding termination provisions were not properly communicated, lacked consideration, and potentially violated the Employment Standards Act, 2000.

The plaintiff was awarded damages for lost base salary, benefits, and commissions.

The applicants, Laridae Communications Inc. and Family and Children's Services of Lanark, Leeds and Grenville (FCS), brought applications seeking declarations that Co-operators General Insurance Company owed them a duty to defend in a third-party claim and a class proceeding, respectively, arising from a data breach.

Co-operators denied coverage based on "data exclusion" clauses in the insurance policies.

Co-operators also brought an application denying a duty to defend Laridae.

The court found that Co-operators failed to discharge its onus to prove the claims clearly fell within the exclusion clauses and that there was no possibility of coverage.

The court granted the applications of Laridae and FCS, declaring a duty to defend, and dismissed Co-operators' application.

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 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 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 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 corporate plaintiff, 2505805 Ontario Inc. (the "Consultant"), brought a motion to enforce a contractual indemnification provision in a consulting agreement, seeking advance payment of legal fees.

The defendants argued the motion was an improper attempt at partial summary judgment and that corporate indemnity statutes (CBCA/OBCA) applied, requiring the consultant to have acted honestly and in good faith.

The court dismissed the motion, finding that the relief sought constituted partial summary judgment on issues central to the main action, which is generally discouraged by the Court of Appeal.

Furthermore, the court held that the corporate indemnity statutes did not apply because the Consultant was a corporation, not an individual officer or director, and therefore not subject to those specific statutory provisions.