Andrew Porter

The defendants brought a motion to strike paragraphs of the plaintiff's amended statement of claim that sought an oppression remedy against the individual directors under s. 248 of the Business Corporations Act.

The plaintiff, a former employee suing for wrongful dismissal, alleged the directors acted oppressively by withholding vacation pay and dismissing him.

The court found that the plaintiff's pleaded reasonable expectations were held in his capacity as an employee, not as a creditor, and that the oppression remedy cannot be used as a surrogate for a wrongful dismissal claim.

The court struck the impugned paragraphs without leave to amend and awarded the defendants $8,500 in costs.

In a medical malpractice action alleging lack of consent to a tubal ligation, the defendant physicians brought a motion under Rule 31.10 to examine the plaintiff's husband as a non-party.

The plaintiff opposed the motion, arguing that her husband had already provided written answers and that other parties present during the consent discussions had been examined.

The court dismissed the motion, finding that the plaintiff's inability to recall certain discussions did not amount to a constructive refusal, and the defendants failed to establish they were unable to obtain the information from other sources.

The defendants sought to dismiss two actions brought by the self-represented plaintiff under Rule 2.1.01 as frivolous, vexatious, or an abuse of process.

The actions involved allegations of improper disclosure of medical information and forged consent, which had already been conclusively dismissed in a prior summary judgment motion.

The court found that the new actions were an attempt to relitigate the same issues, constituting an improper collateral attack and res judicata.

The actions were dismissed as an abuse of process.

The applicants brought a motion to enforce an interim settlement agreement with the City of Toronto regarding physical distancing standards in the city's shelter system during the COVID-19 pandemic.

The City had asserted compliance with the agreement on June 15, 2020, which would trigger the termination of the agreement.

The court found that the City breached the agreement by asserting compliance when it had not used its 'best efforts' to achieve the required physical distancing standards across all sites.

The court ordered the City to continue its pre-compliance reporting obligations until it fully met its obligations under the agreement.

The defendant in a medical malpractice action brought a motion at the outset of trial to strike the plaintiffs' jury notice.

The defendant argued that the complex scientific evidence relating to the minor plaintiff's rare metabolic disorder and the issue of causation made the case unsuitable for a jury.

Applying the principles from Kempf v. Nguyen, the court declined to strike the jury notice prior to trial, opting instead for the preferred 'wait and see' approach.

The motion was dismissed with leave to renew after the evidence is completed.

The defendant sought costs of $29,522.82 following the dismissal of the plaintiff's motion for summary judgment.

The defendant argued for substantial indemnity costs from the date of an offer to settle.

The court found that the plaintiff's motion was not unreasonable, as it had an arguable case and the motion served to narrow the issues and shorten future discoveries.

Consequently, the court exercised its discretion to order costs in the cause, fixing the amount at $22,500 all-inclusive.

The plaintiff landlord brought a motion for summary judgment to enforce an indemnity under a commercial property insurance policy following a fire loss.

The parties disputed the amount payable for cleanup costs, with the plaintiff relying on its contractor's invoice and the defendant insurer relying on a lower estimate from its preferred contractor.

The court found significant confusion and miscommunication between the parties regarding which contractor was to provide the control estimate and whether the plaintiff breached the policy by denying access to the insurer's agent.

The motion for summary judgment was dismissed as there were genuine issues requiring a trial that could not be resolved on the documentary record.

At a case conference in a proposed class action, the plaintiffs sought an adjournment of the defendant's pending jurisdiction motion to summons witnesses.

The defendants objected, arguing an adjournment would prejudice them due to the impending expiry of the limitation period for third-party claims under s. 18 of the Limitations Act, 2002.

The court resolved the prejudice by ordering that the defendants could deliver pro forma defences and commence third-party proceedings without attorning to the court's jurisdiction, and adjourned the jurisdiction motion.

Shareholders sought an order requiring the appointment of an auditor and the production of audited financial statements for certain fiscal years under the Ontario Business Corporations Act.

The applicants argued that a limitation period had not expired for the claim relating to audited financial statements for the 2011 fiscal year.

The court accepted that the limitation period for the 2011 claim had not expired but held that the application sought the appointment of an auditor rather than merely delivery of statements.

Because shareholders were aware by the statutory annual meeting deadlines that auditors had not been appointed, the limitation period for those claims began running in 2010 and 2011 and expired before the application was commenced in 2014.

The endorsement was revised only to clarify the limitation analysis, and the claims remained barred.

The Crown appealed a summary conviction acquittal on charges of possession of marijuana, assaulting a police officer, and failing to comply with bail.

The trial judge had concluded that the accused’s Charter rights were violated, apparently based on racial profiling, unlawful arrest, and excessive force, and excluded the marijuana evidence.

The appeal judge held that the trial reasons were inadequate and failed to explain the path to the conclusions, preventing meaningful appellate review.

The decision also contained legal errors, including conflation of Charter concepts relating to detention, arrest, and search, and failure to resolve critical credibility issues regarding the police officer’s evidence.

The acquittals were set aside and a new trial ordered.