Anne E. Posno

The tenants under two long-term ground leases appealed a majority arbitration award determining the fair market value of the lands for rent re-set purposes.

The court upheld the arbitrators' finding that the freehold interest, not the leasehold interest, was to be valued.

However, the court found the arbitrators erred in law by including the potential value of a freehold residential condominium project in the valuation, as a prior Divisional Court decision between the parties established that development potential unavailable to the tenants due to legal restrictions must be excluded.

Finding that issue estoppel applied to this prior determination, the court set aside the arbitration award and ordered a new hearing.

Motions were brought to quash summonses issued by a litigant seeking to compel opposing counsel and a proposed estate trustee during litigation to testify in support of a motion alleging judicial duress in prior settlement proceedings.

The court considered the stringent requirements for summoning opposing counsel as witnesses, emphasizing that such a step requires a high degree of materiality and necessity and should be avoided unless demanded by the administration of justice.

The court found the evidence sought was neither material nor necessary, noting that the moving party had already filed affidavits, transcripts, and audio recordings addressing the relevant events.

The proposed examinations were characterized as a fishing expedition and potentially tactical, as they would force opposing counsel to withdraw and cause delay and expense.

The summonses were quashed and substantial indemnity costs were awarded.

The moving party sought an adjournment of his motion to set aside consent orders previously made in complex estate litigation.

The respondents opposed the adjournment, arguing prejudice and delay in the sale of an estate property.

The court refused to adjourn the portions of the motion relating to the dismissal of claims against former counsel and the removal of the Estate Trustee During Litigation, finding no merit to those claims and emphasizing the need to enforce court orders.

The court granted an adjournment for the remaining issues regarding the consent orders but ordered the moving party to personally pay the ongoing expenses of the estate property and awarded costs of $54,490 to the respondents on a partial indemnity basis.

The appellants, a solicitor and his law firm, appealed a summary judgment finding them liable for professional negligence in a commercial real estate transaction.

The respondent purchasers had relied on the solicitor's advice that a minor title issue regarding a city-owned laneway would be covered by title insurance.

When the respondents later attempted to sell the property, they discovered the city required $106,000 for the laneway and their title insurance claim was denied.

The Court of Appeal dismissed the appeal, holding that the limitation period did not begin until the title insurance claim was denied, and that expert evidence was not required to establish the standard of care given the clear failure to warn.

The Court also upheld the motion judge's decision to grant summary judgment to the respondents despite the lack of a cross-motion, citing the principle of proportionality.

The successful plaintiffs sought recovery of expert witness disbursements following a summary judgment decision in their favour.

The parties agreed on partial indemnity costs of $25,000 plus HST, leaving only the amount recoverable for the plaintiffs’ expert report in dispute.

The court considered the reasonableness of the expert’s hourly rate and time spent, noting that the expert evidence had been largely unnecessary and that costs awards must be fair and reasonable under rule 57.01(1).

Applying principles governing recovery of expert fees similar to those for counsel fees, the court reduced the claimed expert disbursement from $13,000 to $9,000 plus HST.

The defendants brought a motion for leave to appeal the dismissal of their summary judgment motion in a solicitor negligence action.

The motion judge had found that the limitation period began to run from the date the plaintiffs' title insurance coverage was denied, rather than the date the plaintiffs learned the City was demanding payment for conveying lands.

The Divisional Court granted leave to appeal, finding that the issue raised questions about the application of limitation period case law in the context of insurance claims that warranted appellate review, particularly as a related appeal was already proceeding to the Court of Appeal.

The defendants moved for summary judgment dismissing a solicitor’s negligence claim arising from a commercial real estate transaction involving a building encroaching on a municipal laneway.

The plaintiffs alleged their lawyers failed to warn that the municipality might require payment to convey the laneway and that the title insurance obtained did not cover such a cost.

The court rejected arguments that the claim was statute‑barred and held that expert evidence was unnecessary because the failure to warn of a significant legal risk was apparent on the record.

Applying the “but for” causation test, the court found that had proper advice been given the plaintiffs likely would have sought protection such as a holdback or price abatement.

The motion for summary judgment was dismissed and partial summary judgment was granted to the plaintiffs, leaving only the assessment of damages and the claim against the title insurer for trial.

The plaintiffs, twin brothers born prematurely who developed cerebral palsy, sued their mother's obstetrician for negligence.

The trial judge found the obstetrician breached the standard of care by failing to assess the mother when she reported leaking fluid, resulting in a failure to administer a full course of antenatal corticosteroids (ACS).

The trial judge concluded this failure caused the twins' cerebral palsy and awarded damages.

The obstetrician appealed the causation finding.

The Court of Appeal dismissed the appeal, with the majority holding that the trial judge made no palpable and overriding error in applying a robust and pragmatic approach to the expert evidence and concluding that the failure to administer ACS caused the injuries.

The plaintiffs sought to enforce a California judgment of approximately (US)$17 million against the defendant Jay Chiang and sought a declaration that the debt survives his bankruptcy discharge under s. 178(1)(d) of the BIA.

The plaintiffs also brought a second action alleging that Jay Chiang and numerous family members engaged in fraudulent conveyances and a conspiracy to hide assets and frustrate collection efforts.

The court enforced the California judgment in the amount of (US)$9,678,832 but declined to declare that the debt survives bankruptcy, finding no fiduciary duty was owed to the plaintiffs.

The court found Jay Chiang liable for fraudulent conveyances and conspiracy, but dismissed the claims against most of the other family members, finding they were unwitting conduits used by Jay Chiang.

The appellants, a law firm and its partner, appealed a partial summary judgment finding that a cause of action for solicitor's negligence had been validly assigned to the respondent, Gentra Canada.

The Court of Appeal held that a claim for solicitor's negligence is assignable if the assignee has a legitimate commercial interest, departing from older jurisprudence.

The Court found the assignment language was broad enough to include the claim and that Gentra Canada could sue in its own name without joining the assignor.

However, the appeal was allowed with respect to a subsidiary company that was not a party to the assignment.

The appellants appealed the dismissal of their medical malpractice action against the respondent general surgeon.

The action arose from the respondent's post-operative care of the deceased following a gallbladder surgery, specifically the decision to take a 'wait and see' approach when signs of jaundice appeared.

The trial judge found the respondent's approach met the standard of care and that causation was not established, as there was no known treatment for the necrotising pancreatitis that ultimately caused the death.

The Court of Appeal found no error in the trial judge's findings of fact or application of the law and dismissed the appeal.

The appellant appealed a trial decision ordering specific performance of an oral agreement to sell 100,000 shares of a private company to the respondent.

The appellant argued that no binding agreement was reached, that third-party approval was a condition precedent, and that specific performance was an inappropriate remedy.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that an objective reasonable bystander would find the parties intended to contract based on securities industry custom.

The Court also upheld the specific performance order, noting the shares were unique and damages would be inadequate.

The appellant's son was killed when his bicycle collided with the respondents' motor vehicle.

At trial, the jury dismissed the action, finding no negligence on the part of the respondents.

The appellant appealed, arguing the trial judge erred in his instructions to the jury regarding the reverse onus under s. 193(1) of the Highway Traffic Act.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge's instructions on the onus of proof were contradictory and confusing, which constituted a substantial wrong.

In an addendum to judgment regarding costs of an appeal, the respondents sought costs totaling $132,145.72.

The appellants opposed, seeking a stay of costs for one insolvent respondent, arguing for the application of the pre-2002 party and party costs regime, and challenging the hourly rates of junior counsel.

The Court of Appeal dismissed the stay request, held that the new costs grid under O. Reg. 284/01 applies retrospectively to services rendered before January 1, 2002, and reduced the hourly rates for certain junior counsel.

Total costs of $122,998.02 were awarded to the respondents on a partial indemnity basis.

The appellants, holders of debentures issued by BCED, appealed a trial judgment finding that a series of corporate reorganizations and asset transfers did not breach a successor obligor clause in the trust indenture.

The clause prohibited BCED from transferring 'all or substantially all' of its assets unless the transferee assumed the debenture debt.

The Court of Appeal dismissed the appeal, holding that the asset transfers did not meet either the quantitative or qualitative threshold to constitute 'all or substantially all' of BCED's assets.

The Court also found that a subsequent guarantee and foreclosure did not constitute a prohibited 'transaction' under the trust indenture, as the indenture expressly permitted BCED to incur and secure senior indebtedness.

The appellant appealed the dismissal of his statement of claim against a physician who prepared a medical report for a statutory accident benefits arbitration.

The Court of Appeal dismissed the appeal, affirming that statements made in quasi-judicial proceedings, including physicians' reports prepared for such hearings, are protected by absolute privilege.

The Court also reiterated that there is no independent civil cause of action for a breach of the Ontario Human Rights Code.