Anne E. Posno

The proposed intervener law firm sought leave to intervene in a motion for leave to appeal an order requiring the production of its privileged documents based on an implied joint retainer.

The moving party argued it had a direct interest in the subject matter and could be adversely affected by new grounds of appeal challenging its conduct.

The court dismissed the motion, finding that intervention on a leave to appeal motion should be rare and extraordinary, and that the proposed intervener's submissions largely duplicated those of the appellant.

The request to intervene in the appeal itself was adjourned pending the outcome of the leave motion.

The moving parties sought a review of a motion judge's order that dismissed their request for an extension of time to file a notice of appeal.

The underlying appeal was from an order striking out their statement of claim.

The Court of Appeal found no error in the motion judge's application of the test for an extension of time, agreeing that there was no apparent merit to the appeal and that granting an extension would prejudice the responding parties.

The Court noted that the Brampton action, which was struck, appeared to be an improper attempt to circumvent rulings made in prior Ottawa actions.

The motion for review was dismissed.

This case concerns an application for dependant's relief under the Succession Law Reform Act by a common-law spouse against the intestate estate of her deceased partner.

The deceased's adult daughter had died after him, and her estate trustee claimed the estate under intestacy rules to support the daughter's three young children.

The court determined that the common-law spouse was the sole dependant under the Act, as the adult daughter did not meet the criteria for dependency.

Finding that the deceased had not made adequate provision for the spouse's support, the court held that her legal and moral claims took precedence over the daughter's intestacy claim.

The common-law spouse was awarded the entire remaining balance of the estate.

The appellant appealed a Superior Court decision that dismissed her action for lack of subject matter jurisdiction and struck her pleadings as frivolous, scandalous, and vexatious.

The core of her claim concerned how her insurer handled her statutory accident benefits claims, alleging a conspiracy with healthcare practitioners to stage examinations and produce false reports, and breach of privacy.

The Court of Appeal affirmed the motion judge's finding that the Licence Appeal Tribunal has exclusive jurisdiction over disputes related to statutory accident benefits under s. 280 of the Insurance Act, regardless of how the claims are framed.

The Court also upheld the denial of leave to amend pleadings and dismissed the appeal regarding costs due to procedural non-compliance and lack of error in principle.

In the context of complex estate litigation, the applicant sought to withdraw two affidavits previously filed in support of a motion for the appointment of an Estate Trustee During Litigation and for documentary production.

The applicant argued the affidavits were no longer necessary due to a subsequent consent order that streamlined the proceedings and provided for documentary discovery.

The respondent opposed the withdrawal, arguing it was a tactic to shield the affiants from cross-examination.

The court held that leave is required to withdraw an affidavit filed in support of a motion.

Applying the Gill factors, the court granted leave, finding that the affidavits had not yet been used by the court, the respondents would not be prejudiced, and the withdrawal was a legitimate response to the evolving litigation landscape rather than an improper tactic to avoid cross-examination.

The appellant property owner entered into a contract with the respondent builder for the construction of a luxury home, paying a $3.8 million non-refundable deposit.

After the appellant failed to pay over $10.4 million in interim invoices, the respondent obtained summary judgment.

The appellant appealed solely on the issue of whether the deposit should be credited against the judgment.

The Divisional Court dismissed the appeal, holding that the deposit was intended to secure completion of the contract and was forfeit due to the appellant's breach, rather than acting as a prepayment for interim invoices.

Following the successful dismissal of the plaintiff's action on a motion to strike, the defendants sought costs on a substantial indemnity basis and requested that the costs be paid personally by the plaintiff's lawyers.

The defendants argued that the plaintiff lacked the mental capacity to instruct her counsel to commence the action.

The court rejected the request for substantial indemnity and personal costs, noting that if the defendants genuinely believed the plaintiff was under a disability, they should have sought the appointment of a litigation guardian or challenged the lawyers' authority under the Rules of Civil Procedure.

Costs were awarded to the defendants on a partial indemnity basis.

The plaintiff, Celia Yang, claimed $150 million in damages against her insurer and various service providers, alleging misconduct in the administration of her statutory accident benefits (SABs) claims.

The defendants brought a motion to strike the statement of claim, arguing it contravened pleading rules, the court lacked subject matter jurisdiction (as SABs disputes fall under the exclusive jurisdiction of the Licence Appeal Tribunal), and the claims failed to disclose a reasonable cause of action (including breach of Charter, PIPEDA, tort of bribery, spoliation, breach of contract, inducing breach of contract, fiduciary duty, and conspiracy).

The court dismissed the action, finding the statement of claim scandalous, the court lacked jurisdiction over SABs-related complaints, and the pleaded causes of action were untenable.

This is a costs endorsement following an appeal.

The Court of Appeal for Ontario addressed costs for both the appeal and the underlying summary judgment motion.

The parties agreed to no costs for the appeal due to divided success.

For the summary judgment motion, the court declined to award costs to the primary appellants (Bistricer) or respondents (Rubner), citing reasons such as new arguments on appeal and divided success.

However, the litigation guardian for Eda Rubner, who was aligned with the original applicants, was awarded partial recovery of costs for the summary judgment motion.

Giuseppe Paolo Magnotta died intestate, survived by his wife, Melissa Magnotta (Applicant), and his mother, Rossana Magnotta (Respondent).

Melissa applied for a Certificate of Appointment of Estate Trustee without a Will.

Rossana objected, initially citing Melissa's alleged threat to exhume the deceased's remains and misrepresentation of estate liabilities, and sought a neutral third-party trustee.

The court found Rossana's objections unreasonable, as Melissa was the sole beneficiary and her "threat" to exhume was not acted upon.

Rossana's claim of a financial interest as a creditor for funeral expenses was also deemed insufficient to grant standing under Rule 75.03, as creditors have other remedies.

The court granted Melissa's application, dispensed with the administration bond, and awarded Melissa partial indemnity costs against Rossana.

This appeal concerns a financial dispute among adult siblings over entitlement to distributions from a valuable investment in a residential development in Oakville, Ontario.

The investment, originally a 10% interest in the Lower Fourth Joint Venture purchased by the father in 1969, was held by the mother in trust for three children in equal shares.

The daughter disclaimed her interest for tax reasons.

When distributions began in 2014, they were deposited into bank accounts opened in the mother's name.

The central issue was whether the mother held the distributions as bare trustee for the daughter or whether the daughter had received only individual gifts.

The Court of Appeal found that a bare trust existed over the bank account contents for the benefit of both the daughter and one son in equal shares, reversing the trial judge's finding that the mother held the funds beneficially.

The plaintiff, a neighbour, sued the estate of John Zigomanis in negligence after a house explosion caused by John's son, Paul, who lived in the house and died in the explosion.

The defendant estate trustee brought a motion to determine a question of law, arguing the estate did not own the house and owed no duty of care.

Relying on a companion decision, the court found that legal title had reverted to Paul prior to the explosion, and the estate's payment of utility bills did not create a relationship of proximity.

The court concluded the estate owed no duty of care and dismissed the claim against it.

The defendant, Gail MacDonald (Trustee of John's Estate), brought a motion for a determination of a question of law under Rule 21.01(1)(a) of the Rules of Civil Procedure.

The plaintiff, Giovanni Zambri, claimed negligence and liability under the Occupiers' Liability Act following an explosion at a house.

The core issue was whether John's Estate owed a duty of care or was an occupier, given that a prior decision (Spies J.'s Decision) retroactively established Paul Zigomanis (John's son) as the legal and beneficial owner of the house at the time of the explosion.

The court found that John's Estate, not being the owner or trustee at the time of the explosion, did not owe a duty of care, nor was it an occupier under the Act.

Consequently, the plaintiff's claim against John's Estate was dismissed.

The defendant appealed a Small Claims Court judgment ordering it to pay $10,000 for damage to the plaintiff's recycling bins during snow removal operations.

The Divisional Court found that the trial judge made a palpable and overriding error by adopting the plaintiff's deductions rather than weighing the evidence and drawing his own reasonable inferences.

The appeal was allowed, the judgment was set aside, and a new trial was ordered.

Appeal from a Superior Court judgment finding the indemnifier liable under an indemnity agreement for unpaid rent and related losses.

The indemnifier challenged the finding of liability based on alleged pre-contractual misrepresentations by the landlord regarding park improvements.

The court upheld the finding of liability, rejecting the misrepresentation defence.

On the quantum issue, the court dismissed the indemnifier's appeal regarding restoration costs and legal fees, but allowed the landlord's cross-appeal to extend liability for future rent through the end of the lease term, subject to mitigation credits.

The applicants, several humane societies, challenged the governance model of the respondent provincial animal welfare society.

After the respondent successfully resisted the application following a membership vote, the parties sought costs.

The applicants argued they should be shielded from costs as public interest litigants.

The court rejected this argument, finding the dispute was primarily about internal governance and control rather than a matter of public importance.

The court apportioned costs based on the stages of litigation and ordered the applicants (excluding one that withdrew) to pay $100,000 in costs to the respondent.

The parties sought to settle an order following a decision finding the respondent in breach of an indemnity agreement related to a commercial lease.

The applicant landlord requested that the order include rent payable through to the end of the lease term, an issue not raised during the initial application.

The court held that while a lease is a commercial contract allowing for damages post-termination, the landlord has a duty to mitigate.

Because the landlord provided no evidence that the loss of future rent was unavoidable, the court declined to include an award for rent beyond the date previously determined.

The applicant landlord brought an application to enforce an indemnity agreement against the respondent guarantor after the tenant defaulted on a commercial lease.

The respondent argued the application should be converted to a trial, alleging it was induced to sign the indemnity by negligent misrepresentations regarding park signage and access.

The court found no evidence of specific, actionable representations and held that the absolute and unconditional terms of the indemnity agreement, along with the parol evidence rule, precluded the respondent's defence.

The application was granted, and the respondent was ordered to pay rent arrears, restoration costs, and legal fees.

The parties disputed the interpretation of a rent-reset clause in two 100-year ground leases.

The landlord appealed a Superior Court decision that set aside an arbitral award valuing the lands based on a hypothetical freehold condominium development.

The tenants cross-appealed, arguing the leasehold interest should be valued and seeking a new arbitral panel.

The Court of Appeal dismissed the appeal and cross-appeals, holding that issue estoppel applied from a 1993 decision between the parties, meaning the lands must be valued as a freehold interest but excluding the potential for freehold condominium development because the lands are subject to a lease.

The court also affirmed remitting the matter to the original arbitral panel.

The applicant requested accommodations for his disability-related needs during the hearing process, including audio recording of the continuation of the hearing, a transcript of the previous hearing days, directions to respondent's counsel regarding cross-examination, and an order for early submission of evidence.

The applicant also requested an adjournment.

The Tribunal ordered that the continuation of the hearing be audio recorded but denied the request for a transcript as the previous days were not recorded.

The Tribunal noted that directions regarding cross-examination had already been given and complied with, and that disclosure obligations had been met.

The request for an adjournment was dismissed.